Case 2:20-cv-00337-JRG Document 274 Filed 01/27/22 Page 1 of 13 PageID #: 10607
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`SEAGEN INC.,
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`v.
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`Plaintiff,
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`CASE NO. 2:20-cv-00337-JRG
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`DAIICHI SANKYO CO., LTD.,
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`Defendant, and
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`ASTRAZENECA PHARMACEUTICALS
`LP and ASTRAZENECA UK LTD.,
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`Intervenor-Defendants.
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`DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO STRIKE
`DAVID MANSPEIZER’S DECEMBER 13 REBUTTAL EXPERT REPORT
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`Case 2:20-cv-00337-JRG Document 274 Filed 01/27/22 Page 2 of 13 PageID #: 10608
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`INTRODUCTION
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`Seagen’s motion to strike the December 13, 2021 report of Defendants’ expert David
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`Manspeizer is an attempt to bury critical rebuttal facts and expert opinions concerning Seagen’s
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`allegations of willful infringement and damages from the jury and the Court. In formulating his
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`opinions, Mr. Manspeizer prepared a first expert report (“Initial Report”) that examined the totality
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`of the circumstances surrounding Seagen’s prosecution of the ’039 patent-in-suit. The very same
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`facts and opinions of his first report are incorporated fully into his December 13 rebuttal report
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`(“Rebuttal Report”). Defendants’ other experts, Dr. Meyer and Dr. Lambert, have expressly relied
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`on Mr. Manspeizer’s opinions to rebut Seagen’s allegations of willful infringement and damages.
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`Contrary to Seagen’s argument that Mr. Manspeizer’s Rebuttal Report violates some
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`Federal Rule of Civil Procedure, it actually achieves the exact notice requirement mandated by the
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`Federal Rules. Mr. Manspeizer’s Rebuttal Report contains no surprises. Instead, it provides
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`Seagen with notice that the evidence and opinions contained therein (i) were considered by
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`Defendants’ experts Dr. Meyer and Dr. Lambert and (ii) inform Defendants’ defenses against the
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`allegations of willful infringement and damages. Seagen claims this report prejudices Seagen by
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`“[a]llowing DSC to engage in [] trial by ambush” as through this report “DSC[] attempt[s] to
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`circumvent the disclosure requirements of Rule 26 and present new, previously-undisclosed
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`theories at trial based on Mr. Manspeizer’s testimony.” (Seagen Mot. at 5). Yet, Mr. Manspeizer’s
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`Rebuttal Report contains no “ambush” at all because every opinion contained therein already was
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`provided in, and incorporated by reference to, Mr. Manspeizer’s initial report.
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`Further, as Mr. Manspeizer’s Rebuttal Report properly rebuts aspects of Seagen’s
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`allegations of damages and willful infringement, it is proper to characterize it as a rebuttal and it
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`is titled as such: “Expert Report of David Manspeizer as to Rebuttal Issues.” Defendants should
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`Case 2:20-cv-00337-JRG Document 274 Filed 01/27/22 Page 3 of 13 PageID #: 10609
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`be afforded the opportunity to rebut Seagen’s allegations, and therefore Seagen’s motion to strike
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`Mr. Manspeizer’s Rebuttal Report should be denied.
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`I.
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`MR. MANSPEIZER’S REBUTTAL REPORT IS RELEVANT AND
`CONTAINS EVIDENCE THAT THE JURY IS ENTITLED TO HEAR
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`The facts giving rise to prosecution laches relate to other triable issues in this case,
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`including willful infringement and damages; it therefore would be unfair and improper to preclude
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`such facts from the jury’s consideration. Although Mr. Manspeizer did not provide an opinion on
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`willful infringement or damages, the facts contained in Mr. Manspeizer’s report and his opinions
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`regarding those facts do bear on whether Daiichi Sankyo Japan’s conduct was willful and the
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`damages amount. (See Initial Report ¶¶ 32-43; Rebuttal Report ¶ 4). More specifically, the
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`evidence upon which Mr. Manspeizer relies shows the absence of deliberate or intentional
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`infringement, which are required to establish willful infringement. (See Initial Report ¶¶ 32-43);
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`SRI Int’l., Inc. v. Cisco Sys., Inc., 14 F. 4th 1323, 1329 (Fed. Cir. 2021). Regarding damages, for
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`example, Dr. Meyer’s rebuttal report
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`Report, ¶¶ 7, 207).
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`Regarding willful infringement,
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` (Ex. A,
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`Rebuttal
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` (Id. ¶ 207).
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` (Ex. B,
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`Case 2:20-cv-00337-JRG Document 274 Filed 01/27/22 Page 4 of 13 PageID #: 10610
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`Invalidity Opening Report ¶¶ 6, 79 n. 114). The evidence concerning Seagen’s delay in presenting
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`the claims disclosed in the ’039 patent demonstrates the reasonableness of Defendants’ actions,
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`thereby supporting a defense against the allegation of willful infringement. Thus, as the jury will
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`need to consider Mr. Manspeizer’s opinions, which also were relied upon by Defendants’ other
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`experts to determine the lack of willful infringement and the correct measure of damages (if any),
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`excluding such opinions would be unfair and highly prejudicial.
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`Seagen argues against the propriety of Mr. Manspeizer’s Rebuttal Report by incorrectly
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`claiming that it is a “backdoor” attempt to offer expert testimony on an equitable issue to the jury.
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`Evidence and arguments going solely to equitable issues should be tried to the bench and/or to an
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`advisory jury. There is, however, no rule or case law that precludes the presentation of facts and
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`evidence related to the issue of prosecution laches to a non-advisory jury when they are relevant
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`to other issues. See e.g., SimpleAir, Inc. v. Google Inc., 2:14-cv-00011-JRG, Dkt. 325 at 3 (E.D.
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`Tex. Oct. 6, 2016) (excluding evidence “going solely to the issue of prosecution laches,” but
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`further explaining that “[d]efendants are granted leave to approach the bench if they feel such
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`evidence has become relevant”); Medtronic Xomed, Inc. v. Gyrus Ent LLC, 440 F. Supp.2d 1333,
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`1336 (M.D. Fla. 2006) (denying motion for bifurcation of inequitable conduct issue because
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`defendant had not identified “any additional witnesses or exhibits relevant to the issue of
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`inequitable conduct that will not be presented or are not relevant to the liability and invalidity
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`issues before the jury, [and therefore] a separate bench trial of this single issue . . . would not be
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`the most efficient use of judicial resources”); Mag Inst. v. J. Baxter Brinkmann Int’l, 123 F.R.D.
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`543, 547 (N.D. Tex. 1988) (denying motion for separate bench trial by jury on inequitable conduct
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`defense because determination of validity and inequitable conduct were “intertwined” as both were
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`based on the existence of certain prior art). Here, allowing Defendants’ damages expert or
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`Case 2:20-cv-00337-JRG Document 274 Filed 01/27/22 Page 5 of 13 PageID #: 10611
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`invalidity/noninfringement expert to explain their reliance on Mr. Manspeizer’s report is not the
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`same as simply putting evidence in front of the jury to advance the affirmative defense of
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`prosecution laches as the facts giving rise to prosecution laches also relate to willful infringement
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`and damages. Thus, excluding Mr. Manspeizer’s Rebuttal Report would prevent the jury from
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`understanding Seagen’s actions in obtaining the patent at issue, which are central facts to
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`Defendants’ defense of willful infringement, as well as arguments against alleged damages.
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`II.
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`THE MANSPEIZER REBUTTAL REPORT COMPORTS
`WITH THE DISCLOSURE REQUIREMENTS OF RULE 26
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`Pursuant to Federal Rule of Civil Procedure 26(a)(2)(B) (“Rule 26”), an expert must
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`provide a written report “when the expert was retained or specifically employed to provide expert
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`testimony in the case.” Here, Mr. Manspeizer was retained to provide expert testimony as to one
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`of Defendants’ affirmative defenses—patent prosecution laches, and timely submitted his Initial
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`Report on November 22, 2021 that provided his affirmative opinions on this topic. Rule 26
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`requires an expert report to include (i) the opinions to be expressed and the basis for those opinions;
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`(ii) the facts or data considered in forming those opinions; (iii) exhibits used in support of those
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`opinions; (iv) expert qualifications; (v) a list of the cases in which the expert has testified within
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`the past four years, and (vi) the amount that the expert is being compensated for his testimony.
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`See Fed. R. Civ. P. 26(a)(2)(B)(i)-(vi). Mr. Manspeizer’s Initial Report and Rebuttal Report
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`included each of requirements (i)-(vi) and thus complied with Rule 26.
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`Mr. Manspeizer’s Rebuttal Report comports with the Federal Rules and does exactly what
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`the Federal Rules are designed to do—it provides adequate notice that Mr. Manspeizer’s opinions
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`are being used to rebut the issues of willful infringement and damages. Contrary to Seagen’s
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`arguments, Mr. Manspeizer’s Rebuttal Report discloses the opinions and evidence that Mr.
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`Manspeizer would present at trial, and Dr. Lambert’s and Dr. Meyer’s reports disclose “how
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`Case 2:20-cv-00337-JRG Document 274 Filed 01/27/22 Page 6 of 13 PageID #: 10612
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`[Defendants] intend[] to use Mr. Manspeizer’s opinions and the alleged facts on which those
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`opinions rely,” (Seagen Mot. at 8), thus preventing any supposed “trial by ambush” (Seagen Mot.
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`at 5). Indeed, Mr. Manspeizer’s Rebuttal Report states, “I understand that one or more experts
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`for Defendants, and/or counsel for Defendants, intend to use my testimony as to the incorporated
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`facts and opinions set forth herein in support of contesting any allegations Seagen has advanced
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`regarding willful infringement and patent damages.” (Manspeizer 12/13/2021 Rpt. ¶3).
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`Meanwhile, in their expert reports, Dr. Meyer and Dr. Lambert cite to Mr. Manspeizer’s reports,
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`on which they rely in support of particular propositions relating to willfulness and damages.
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`(Meyer Rebuttal Report ¶¶ 7, 207; Lambert Opening Report ¶¶ 6, 79 n. 114). Seagen entirely
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`overlooks the fact that
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`The case law that Seagen relies upon in support of its incorrect argument that Mr.
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`Manspeizer’s Rebuttal Report violates Rule 26 is inapposite to the facts at hand as those cases
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`involve violations of expert disclosure requirements that did not occur in this case. For example,
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`in Clear-View Technologies, Inc. v. Rasnick, Case No. 13-CV-02744, 2015 WL 3509384, (E.D.
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`Tex. June 3, 2015), defendants disclosed one of their experts after the deadline for the disclosure
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`of initial expert disclosures as that expert was disclosed as a “rebuttal expert.” Despite the
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`defendant’s identification of the expert in Clear-View as a rebuttal expert, the expert’s report
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`provided only affirmative opinions and did not “explain, counteract or disprove evidence of the
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`adverse party.” 2015 WL 3509384 at *2. Given the belated submission of the expert’s affirmative
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`opinions, the Clear-View court determined that the plaintiff was denied the opportunity to respond
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`to those affirmative opinions. Id. at *5. Unlike Clear-View, here, Defendants disclosed Mr.
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`Manspeizer in a timely manner, notified Seagen that he would opine on affirmative issues, and his
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`November 22, 2021 opening expert report provided such opinions. Mr. Manspeizer’s Rebuttal
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`Report, which indicated that Defendants would rely on his testimony in addressing issues on which
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`Defendants do not bear the burden of proof—willfulness and damages—was timely served on the
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`deadline for such a responsive report. Therefore, unlike the plaintiff in Clear-View, Seagen was
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`not improperly deprived of any opportunity to respond to Defendants’ expert via a responsive
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`report. The schedule of this case never permitted Seagen to submit responsive reports regarding
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`issues of willfulness and damages. As such, Mr. Manspeizer’s Rebuttal Report did not create a
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`circumstance, like the one in Clear-View, in which there was “intent to play fast-and-loose with
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`Rule 26’s requirements to the detriment of Plaintiff.” 2015 WL 3509384, at *2.
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`Seagen also relies on Meier v. UHS of Delaware, Inc., No. 18-cv-00615, 2021 WL 1561615
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`(E.D. Tex. 2021) for the proposition that Rule 26’s purpose is to “prevent[] prejudice and surprise.”
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`In Meier, the expert submitted both an opening affirmative report and a supplemental report, the
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`second of which was analyzed by the court and found to be both a supplemental and rebuttal report.
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`The plaintiff in Meier contested the timeliness of the expert’s second report as it was served after
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`the deadlines provided by Rule 26. Despite the delay, the Meier court determined that allowing
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`the second report would cause no prejudice as the expert’s core opinions were maintained between
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`the opening and the second report.
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`Here, just like the expert reports in Meir, Mr. Manspeizer’s Rebuttal Report does not
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`modify any of the opinions expressed in his Initial Report nor does it suggest that any “new,
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`previously-undisclosed theories” will be disclosed at trial. (Seagen Mot. at 5). Mr. Manspeizer’s
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`Initial Report contained his opinions on the issue of prosecution laches, which was based in part,
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`on Mr. Manspeizer’s review of evidence relating to Seagen’s prosecution of the ’039 patent family.
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`Mr. Manspeizer’s Rebuttal Report, incorporates his Initial Report by reference, and simply
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`explains that Defendants’ other experts may rely on his Initial Report to support their opinions as
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`to no willful infringement and damages. And that Rebuttal Report, along with Defendants’ other
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`expert reports on willfulness and damages, were timely served on the agreed-upon schedule.
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`III. MANSPEIZER’S DECEMBER 13, 2021 REPORT REBUTS SEAGEN’S
`ALLEGATIONS OF WILLFUL INFRINGEMENT AND DAMAGES
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`Mr. Manspeizer’s Rebuttal Report is a proper rebuttal expert report that puts Seagen on
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`notice that Defendants’ other expert witnesses may rely on his opinions in forming their own
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`arguments against Seagen’s allegations of willful infringement and damages. First, Mr.
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`Manspeizer’s Rebuttal Report was served in a timely manner—on the agreed upon deadline for
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`Defendants to serve such responsive reports on these issues. Further, Mr. Manspeizer’s Rebuttal
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`Report is a proper rebuttal as it “explains” how his opinion may be used to “disprove[] evidence”
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`included in any of Seagen’s own expert reports on the issues of willful infringement and damages,
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`which were issues raised in Seagen’s opening expert reports. See Meier, 2021 WL 1561615 at *3
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`(explaining that the Eastern District of Texas “characterizes a rebuttal report as one that ‘explains,
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`repels, counteracts, or disproves evidence of the adverse party’s initial report.’”) quoting Gibson
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`Brands, Inc. v. Armadillo Distrib. Enter., Inc., No. 4:19-CV-00358, 2020 WL 6581868, at *2 (E.D.
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`Tex. 2020). Dr. Meyer’s and Dr. Lambert’s report further disclose how they are relying on his
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`testimony.
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`In an attempt to put up an additional block that could prevent the jury’s consideration of
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`evidence rebutting the issues of willful infringement and damages, Seagen argues that Mr.
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`Manspeizer’s Rebuttal Report cannot be considered a supplemental report. Without the support
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`of any case law, federal or local rule, Seagen argues that because Mr. Manspeizer’s Rebuttal Report
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`was “served three weeks after the initial expert disclosure deadlines set by this Court,” it “cannot
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`be considered part of [Defendants’] opening report,” and therefore cannot be considered a
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`supplemental report. (Seagen Mot. at 7); but see Meier, 2021 WL 1561615 at *3 (E.D. Tex. 2021)
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`(acknowledging that “what constitutes a supplemental expert report is not a clear-cut issue and
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`‘the distinction likely depend[s] on the facts of the case”) quoting Gibson Brands, 2020 WL
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`6581868, at *2.
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`Seagen’s attempt to reclassify Mr. Manspeizer’s Rebuttal Report is a red-herring. The
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`classification of Mr. Manspeizer’s Rebuttal Report as rebuttal, supplemental, both, or neither, does
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`not affect the propriety of the report. Mr. Manspeizer’s Rebuttal Report meets the requirements
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`of Rule 26 and was timely served on the deadline for Defendants to serve reports that address
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`willfulness and damages. There is therefore no basis to strike it. Ironically, Seagen’s arguments
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`contradict Seagen’s own actions in this case. Seagen takes the position that an additional or
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`“supplemental” report served three weeks after an opening report is per se improper. Assuming,
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`in arguendo, that Seagen is correct, then Seagen’s own damages report should be stricken as
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`untimely. After all, Seagen’s own damages expert, Ms. Distler, submitted three different reports
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`all addressing the very same issue—an opening report on November 22, a corrected report on
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`November 23, and an updated report on December 13. The third of these reports was served a full
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`three weeks after the November 22 deadline for Seagen to submit reports on damages.
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`Because Mr. Manspeizer’s Rebuttal Report was timely served, comports with the
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`requirements of Rule 26, and provides Seagen with adequate notice of how Mr. Manspeizer’s
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`opinions may be used to rebut aspects of Seagen’s allegations of willful infringement and damages,
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`the Court should deny Seagen’s motion to strike.
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`CONCLUSION
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`For the foregoing reasons, Defendants respectfully request that this Court deny Seagen’s
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`motion to strike Mr. Manspeizer’s Rebuttal Report.
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`Case 2:20-cv-00337-JRG Document 274 Filed 01/27/22 Page 11 of 13 PageID #: 10617
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`Dated: January 20, 2022
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`Respectfully submitted,
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`/s/ Preston K. Ratliff II
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`Deron R. Dacus
`State Bar No. 00790553
`The Dacus Firm, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, Texas, 75701
`+1 (903) 705-1117
`+1 (903) 581-2543 facsimile
`ddacus@dacusfirm.com
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`J. Mark Mann
`State Bar No. 12926150
`mark@themannfirm.com
`MANN | TINDEL | THOMPSON
`300 West Main Street
`Henderson, Texas 75652
`(903) 657-8540
`(903) 657-6003 (fax)
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`Attorneys for Defendant Daiichi Sankyo Company,
`Limited
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`OF COUNSEL:
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`Preston K. Ratliff II
`Joseph M. O’Malley, Jr.
`Ashley N. Mays-Williams
`Paul Hastings LLP
`200 Park Avenue
`New York, NY 10166
`(212) 318-6000
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`Jeffrey A. Pade
`Paul Hastings LLP
`2050 M Street NW
`Washington, DC 20036
`(202) 551-1700
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`Attorneys for Defendant Daiichi Sankyo Company,
`Limited
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`Case 2:20-cv-00337-JRG Document 274 Filed 01/27/22 Page 12 of 13 PageID #: 10618
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`/s/ David I. Berl
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`David I. Berl
`dberl@wc.com
`Thomas S. Fletcher
`tfletcher@wc.com
`Jessica L. Pahl
`jpahl@wc.com
`Kathryn S. Kayali
`kkayali@wc.com
`Kevin Hoagland-Hanson
`khoagland-hanson@wc.com
`Andrew L. Hoffman
`ahoffman@wc.com
`WILLIAMS & CONNOLLY LLP
`725 Twelfth Street, N.W.
`Washington, DC 20005
`Phone: (202) 434-5000
`Facsimile: (202) 434-5029
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`Jennifer Parker Ainsworth
`Texas State Bar No. 00784720
`jainsworth@wilsonlawfirm.com
`Wilson, Robertson & Cornelius, P.C.
`909 ESE Loop 323, Suite 400
`Tyler, Texas 75701
`Phone: (903) 509-5000
`Facsimile: (903) 509-5092
`Attorneys for AstraZeneca Pharmaceuticals
`LP and AstraZeneca UK Ltd.
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that all counsel of record who have consented to
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`electronic service are being served with a copy of this document via electronic mail on January 20,
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`2022.
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`/s/ Preston K. Ratliff II
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