Case 2:20-cv-00337-JRG Document 411 Filed 06/22/22 Page 1 of 5 PageID #: 15757
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`SEAGEN INC.,
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`v.
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`Civil Action No. 2:20-CV-00337-JRG
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`Plaintiff,
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`DAIICHI SANKYO CO., LTD.,
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`Defendant,
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`ASTRAZENECA PHARMACEUTICALS LP, and
`ASTRAZENECA UK LTD,
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`Intervenor-Defendants.
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`SEAGEN’S OPPOSITION TO DEFENDANTS’ MOTION
`TO DESIGNATE NEW EXPERT AND CONTINUE BENCH TRIAL
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`DSC’s motion does not inform the Court of Seagen’s proposed solution that obviates all
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`concerns. Seagen offered that in lieu of personal appearance, Mr. Manspeizer’s testimony could
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`be entered in the form of his expert report and deposition transcript (video or text), and Seagen
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`would waive all hearsay objections. (Chivvis Decl. Ex. 1 at 3.) Seagen further offered that the
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`testimony of its expert, Richard Smith, would, at DSC’s election, be entered in the same manner
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`or presented live so that he would be available for additional cross-examination. (Id.)
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`Unsatisfied with these options, DSC now seeks a nearly one-month continuance of the bench
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`trial that it requested solely for one purpose: To present a direct examination of a new expert
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`who will adopt, and be confined by, Mr. Manspeizer’s opinions. This is an insufficient reason to
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`continue the trial.
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`Case 2:20-cv-00337-JRG Document 411 Filed 06/22/22 Page 2 of 5 PageID #: 15758
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`DSC reasons that Mr. Stoll’s substitution is necessary because “(1) significant evidence is
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`not available to the Court in the current trial record and (2) cross-examination gives the Court, as
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`the trier of fact, the ‘opportunity to judge the witnesses’ credibility,’ see Fed. R. Civ. P. 52(a)(6),
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`and the chance to ask clarifying questions, see Fed. R. Evid. 614(b).” (Mot. at 2, fn. 3; see also
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`Dkt. No. 396 at 6–7.) None of these reasons justifies a continuance or substitution.
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`No unavailable evidence. Seagen’s proposal to enter Mr. Manspeizer’s expert report and
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`deposition transcript would allow DSC to introduce all evidence it would otherwise seek to
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`introduce through its substituted expert. Mr. Stoll’s testimony would necessarily be limited by
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`Mr. Manspeizer’s report, and there is thus no evidence that DSC would be precluded from
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`adducing. (See Dkt. No. 343, Pretrial Conference Tr. Vol. 1 at 15:23–16:1 (“Those expert
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`witnesses are limited to and confined by the four corners of their reports. It is objectionable and
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`improper for an expert to attempt to testify outside the scope of their report.”).)
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`No interference with the right to cross-examine. Seagen is willing—and indeed
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`planning—to bring its expert Mr. Smith to trial and make him available for cross-examination.
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`To alleviate any perceived prejudice, Seagen offered, at DSC’s election, to present Mr. Smith’s
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`testimony in the same manner as Mr. Manspeizer, i.e., by entering his expert report and
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`deposition transcript. (Chivvis Decl. Ex. 1 at 3.) The only party foregoing its right to cross-
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`examine a witness is Seagen.
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`No interference with the ability to judge credibility. With Mr. Manspeizer unavailable,
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`the Court’s ability to judge his credibility has already been lost. Mr. Manspeizer’s expert report
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`is premised heavily on his personal experience working in the pharmaceutical and
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`biopharmaceutical fields as both in-house and outside counsel. It is unclear how DSC proposes
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`this Court determine the credibility of Mr. Manspeizer’s opinions through the conduit of a
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`Case 2:20-cv-00337-JRG Document 411 Filed 06/22/22 Page 3 of 5 PageID #: 15759
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`substitute expert, or how such an arrangement is preferable to submitting Mr. Manspeizer’s
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`opinions as currently presented in his expert report and deposition testimony.
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`No interference with Court’s ability to ask clarifying questions. DSC also seeks to
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`justify its motion by citing Federal Rule of Evidence 614(b), arguing that not allowing its
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`substitution would deprive the Court of the ability to ask its own clarifying questions. This
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`position is inconsistent with its pre-trial brief, in which DSC indicated it intends to present
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`testimony from its other expert witness, Dr. Lambert, and fact witnesses Drs. Gormley, Senter,
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`Toki, Doronina, and Kline by video or deposition transcript. (Dkt. No. 408 at 5–6.)
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`Even if the Court were inclined to permit DSC’s requested substitution, DSC has not
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`sufficiently addressed why Mr. Stoll is not available on June 28th, nor why it did not attempt to
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`find a substitutable witness who is available before taking this drastic step. DSC supported its
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`motion with only a declaration from Mr. Manspeizer. DSC offered no declaration from Mr.
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`Stoll; nor did it otherwise disclose details regarding his purported unavailability, including the
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`name of the conflicting trial or dates he is expected to testify, what his purported “other
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`professional matters” entail (Mot. at 2), or why he is not available to testify via video. Nor does
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`DSC provide a declaration from counsel describing its efforts to secure a substitute expert
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`witness who is available on the scheduled trial date.
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`There is no practical difference between having Mr. Manspeizer’s testimony introduced
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`on the papers and having Mr. Stoll repeat Mr. Manspeizer’s opinions on the stand. The benefit
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`of such a solution to Mr. Manspeizer’s unfortunate circumstances is far outweighed by the
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`prejudice to Seagen, which has already arranged travel and accommodations for its attorneys,
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`support staff, and expert witness. (Chivvis Decl. ¶ 2.) Having successfully proven its case
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`before the jury, Seagen is prepared to rebut DSC’s prosecution laches defense and move forward
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`to entry of judgment. DSC’s unwarranted request for further delay should not stand in the way.
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`Case 2:20-cv-00337-JRG Document 411 Filed 06/22/22 Page 4 of 5 PageID #: 15760
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`Dated: June 22, 2022
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`By: /s/ Michael A. Jacobs
`Michael A. Jacobs
`MJacobs@mofo.com
`Matthew A. Chivvis
`MChivvis@mofo.com
`MORRISON & FOERSTER LLP
`425 Market Street
`San Francisco, CA 94105
`Telephone: 415.268.7000
`Facsimile: 415.268.7522
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`Bryan Wilson
`BWilson@mofo.com
`MORRISON & FOERSTER LLP
`755 Page Mill Road
`Palo Alto, California 94304-1018
`Telephone: 650.813.5600
`Facsimile: 650.494.0792
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`Melissa R. Smith
`Texas State Bar No. 24001351
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: 903.934.8450
`Facsimile: 903.934.9257
`Of Counsel:
`T. John Ward, Jr.
`Texas State Bar No. 00794818
`jw@wsfirm.com
`Charles Everingham IV
`Texas State Bar No. 00787447
`ce@wsfirm.com
`Andrea L. Fair
`Texas State Bar No. 24078488
`andrea@wsfirm.com
`WARD, SMITH & HILL, PLLC
`1507 Bill Owens Parkway
`Longview, Texas 75604
`Telephone: 903.757.6400
`Facsimile: 903.757.2323
`Attorneys for Plaintiff Seagen Inc.
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`Case 2:20-cv-00337-JRG Document 411 Filed 06/22/22 Page 5 of 5 PageID #: 15761
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that counsel of record who are deemed to have
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`consented to electronic services are being served with a copy of this document via the Court’s
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`CM/ECF system per Local Rule CV-5(a)(3) on June 22, 2022.
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`/s/ Melissa R. Smith
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