IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

SANOFI-AVENTIS U.S. LLC,
et al.,
Plaintiffs,

v.

Civil Action No. 14-113-RGA

ELI LILLY AND COMPANY,

Defendant.

ORDER DENYING MOTION TO PRECLUDE

Defendant has submitted a motion to prelude the expert testimony of two witnesses and
the underlying lab work done by Chemir. (D.I. 250). It has been fully briefed. (D.I. 251, 260,
264).
While! acknowledge the "gate-keeper" function of a federal trial judge, it is not so
important that it be done pretrial when the trial is a bench trial. See In re Salem, 465 F.3d 767,
777 (7th Cir. 2006); United States v. Brown,415 F.3d 1257, 1269-70 (11th Cir. 2005); Warner

Chilcott Labs. v. Impax Labs., Inc., 2012 WL 1551709, *23-24 (D.N.J. Apr. 30, 2012), aff'd
without opin., 478 F. App'x 672 (Fed. Cir. Sept. 7, 2012). Live testimony and cross-examination
are much more likely to result in a correct decision from me about whether the experts are giving
appropriate scientific testimony, and can appropriately rely upon the testing done by Chemir.
Thus, while I am denying the motion for now, my understanding is that Defendant challenges the
admissibility of the testing, and the conclusions drawn therefrom. I expect Plaintiff will lay an
appropriate foundation as a part of its case. Defendant maypreserve its objection at trial by

making an objection 1 at the appropriate time(s) during Dr. Nuckolls' testimony. (I am not sure
that Defendant needs to make any objections during Dr. Randolph's testimony, as my
understanding is that the underlying testing is the responsibility of Dr. Nuckolls, and its
admissibility will rise or fall with his testimony. If I am wrong about this, the parties should
bring it up atthe pretrial conference.) Failure to make a timely appropriate objection will result
in the objection being waived. The Court will consider granting a continuing objection. The
Court will only consider evidence actually adduced at trial (whether through cross-examination
or testimony from other witnesses) in ruling on any renewed motion.
The Motion to Preclude (D.I. 250) is DENIED without prejudice.

~''l.(2~\S

Date

To wit, "Objection. Daubert."