Not for Publication

LETTER OPINION & ORDER

MICHAEL A. SHIPP, District Judge.

Dear Counsel:

This matter comes before the Court on the joint correspondence setting forth the outstanding evidentiary trial objections for which the Court invited briefing.1 (Joint correspondence, ECF No. 255.) For the reasons set forth below, the Court sustains Plaintiffs' objection with respect to the admission of U.S. Patent No. 7,074,821 (the '821 patent) into evidence and overrules Defendants' various objections with respect to Dr. Sartor's trial testimony.

First, Defendants request the Court to admit the '821 patent into evidence or, alternatively, to take judicial notice of the '821 patent. (Joint Correspondence 3-4.) Defendants failed to include the '821 patent in their joint exhibit list to the final pretrial order and did not demonstrate good cause at trial or in their post-trial submission for their failure to include the '821 patent in the final pretrial order. In its order setting forth the requirements for joint correspondence with respect to outstanding post-trial objections, the Court stated the parties must support their positions with citations to relevant rules and case law. (Order, ECF No. 251.) Defendants cited Lassere v. Home Depot, U.S.A., Inc., No. 12-2131, 2015 WL 13532730, at *2 (E.D. La. Jan. 26, 2015), for the proposition that adding the '821 patent to their pretrial exhibit list would be minimally prejudicial. (Joint Correspondence 3.) In addition, Defendants cited Federal Rule of Evidence 201 and X One, Inc. v. Uber Technologies, Inc., 239 F.Supp.3d 1174, 1182 n.1 (N.D. Cal. Mar. 6, 2017), in support of their alternative request for the Court to take judicial notice of the '821 patent. The Court finds neither of Defendants' arguments persuasive. First, the Lassere court's decision was not issued in response to an evidentiary objection during trial. Next, X One, Inc. dealt with judicial notice of a patent in the context of a motion to dismiss, which is clearly distinguishable from a request for judicial notice of a patent not included in the final pretrial order in the midst of trial.2 Here, based on the showing made during trial and in the post-trial joint submission, the Court denies Defendants' request.

Next, Defendants object to Dr. Sartor's Testimony with respect to the anticancer activity standard. (Trial Tr. 1481:11-21; 1501:17-21; 1503:1-25; 1510:4-23; 1517:10-15; 1518:4-22.) The Court has carefully reviewed Dr. Sartor's rebuttal expert report, deposition testimony, and the trial testimony at issue and overrules Defendants' objections. The Court finds that the areas objected to by Defendants were either disclosed in or, at the very least, consistent with, Dr. Sartor's expert report. Accordingly, the Court is not persuaded by Defendants' arguments with respect to Dr. Sartor's expert report and trial testimony, as the challenged subject matters were appropriate areas to be explored during Dr. Sartor's deposition and upon cross-examination at trial.3 The Court is also not persuaded by Defendants' assertion that its expert, Dr. Ratain, was not available to rebut Dr. Sartor's opinions and that Defendants would be required to respond to Dr. Sartor's opinions during post-trial briefing.4

Accordingly, it is on this 16th day of October, 2017, ORDERED that: