TED STEWART, District Judge.
This matter is before the Court on Plaintiffs' Motion In Limine to Exclude Any Evidence And/Or Testimony Regarding Composition of the Accused Products Not Previously Produced. For the following reasons, the Court denies the Motion without prejudice.
On August 22, 2013, Thorne and Softgel Formulators (collectively, "Thorne") filed the present lawsuit against Xymogen for infringement of United States Patent No. 8,491,888, titled "Highly Absorbable Coenzyme Q10 Composition and Method of Producing Same" (the '888 Patent).
Xymogen identified Mike Mahoney as an individual with "knowledge or information concerning the composition of" its CoQmax-100CF CoQmax CF products.
Finally, when asked to admit that the master formula for Hi Sorb CoQ10 100mg softgel and Hi Sorb CoQ10 50 mg softgel were the same as the formulas for the CF products, Xymogen stated that it "made reasonable inquiry and the information it knows or can readily obtain is insufficient to enable it to admit or deny this request. . . ."
Thorne has now filed this Motion to preclude Xymogen from offering any evidence or testimony from Xymogen representatives about the composition of the accused products that would respond to Thorne's discovery requests, but was never disclosed during discovery.
"A party who has . . . responded to an interrogatory . . . must supplement or correct its disclosure or response: in a timely manner if the party learns that in some material respect the disclosure or response is incomplete, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing."
"A district court need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose."
In its Motion, Thorne states that it believes that Xymogen may attempt to introduce evidence and/or elicit testimony at trial from Xymogen personnel regarding details about the composition of its products. Thorne argues that Xymogen should be precluded from doing so based on its argument that Xymogen failed to disclose such information during discovery.
Xymogen denies that its discovery responses were inadequate and argues that it should be permitted to present evidence regarding the composition of the accused product to the extent that evidence was disclosed during discovery. However, Xymogen states that it will not seek to elicit such testimony to the extent that it was not disclosed in deposition or discovery responses.
Based upon this representation, the Court will deny the Motion without prejudice. Xymogen may present evidence and elicit testimony concerning the composition of the accused products, so long as that evidence and testimony was properly disclosed. Should Xymogen attempt to go beyond that which was disclosed, Thorne can make an appropriate objection at trial.
It is therefore
ORDERED that Plaintiffs' Motion In Limine to Exclude Any Evidence And/Or Testimony Regarding Composition of the Accused Products Not Previously Produced (Docket No. 274) is DENIED WITHOUT PREJUDICE.