AbbVie Endocrine Inc. v. Takeda Pharmaceutical Co. Ltd.

• Court: Court of Chancery of Delaware
• Decided: May 10, 2023
• Docket: CA No. 2020-0953-SG
• Status: Published

Opinion

COURT OF CHANCERY OF THE SAM GLASSCOCK III STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE VICE CHANCELLOR 34 THE CIRCLE GEORGETOWN, DELAWARE 19947

Date Submitted: April 24, 2023 Date Decided: May 10, 2023

A. Thompson Bayliss, Esquire Kevin R. Shannon, Esquire Eric A. Veres, Esquire Christopher N. Kelly, Esquire Joseph A. Sparco, Esquire Daniel M. Rusk, IV, Esquire ABRAMS & BAYLISS LLP POTTER ANDERSON & CORROON LLP 20 Montchanin Road, Suite 200 1313 North Market Street Wilmington, Delaware 19807 Hercules Plaza, 6th Floor Wilmington, DE 19801

Re: AbbVie Endocrine Inc. v. Takeda Pharmaceutical Co. Ltd., C.A. No. 2020-0953-SG

Dear Counsel:

Before me are Defendant’s Motion to Supplement the Trial Record (the

“Motion”) and Plaintiff’s corresponding Cross-Motion to Strike (the “Opposition”).1

The Motion seeks to supplement the record, post-trial, with two categories of

documents: (1) updated IQVIA product sales data from December 2022 and (2)

AbbVie “recovery scorecards” that reflect actual Lupron sales data for specific

months pre- and post-shortage.2

1 Defs.’ Mot. to Suppl. the Trial R., Dkt. No. 419 (the “Motion”); Pl.’s Opp’n to Mot. to Suppl. the Trial R. and Cross-Mot. to Strike, Dkt. No. 427 (the “Opposition”). 2 Motion ¶ 1. “A motion to supplement the record is addressed to the discretion of the trial

court.”3 In determining whether to admit new evidence, the Court looks to a range

of factors including timeliness and judicial economy but, ultimately, the analysis

“turns on the interests of fairness and justice.”4

The principal issue before the Court at this stage is the calculation of damages

stemming from Defendant’s breach of an agreement to supply a critical drug to

Plaintiff.5 Both sides’ arguments rely heavily on experts’ complex financial

projections, of which the IQVIA data is a core input.6 However, Defendant asserts

that it “is not planning ‘to incorporate new IQVIA data into its damages analysis.’”7

Rather, per Defendant, this new data will allow the Court to compare “Lupron’s

latest actual market share to what the parties predicted it to be[.]”8

The existing data shows that Lupron’s market share fluctuates from month to

month.9 A proper determination of whether a given month’s data diverges from

projections due to a long-term trend, rather than transitory factors, would likely

3 In re Transamerica Airlines, Inc., 2008 WL 509817, at *4 (Del. Ch. Feb. 25, 2008). 4 Id. 5 Joint Pre-Trial Stipulation and Order ¶¶ 1, 31, 60, Dkt. No. 411. 6 See Def. Takeda Pharmaceutical Co. Ltd.’s Post-Trial Opening Br., Dkt. No. 422; Pl.’s Post- Trial Opening Br., Dkt. No. 421. 7 Motion ¶ 8 (citation omitted). 8 Id. ¶ 6. 9 See Pl.’s Pre-Trial Br. 4, Dkt. No. 406 (showing Lupron’s fluctuating post-shortage market share). 2 require additional expert testimony. Accordingly, I find that the December 2022

IQVIA data must be excluded in the interests of both fairness and judicial economy.

I also find that the recovery scorecards must be excluded due to concerns of

timeliness, prejudice, and judicial economy. Although the documents in question

were available to Defendant at trial,10 Defendant waited more than two months to

bring the Motion. More to the point, Defendant seeks to incorporate the recovery

scorecards into a host of calculations and arguments that would likely require, at

minimum, additional analysis and testimony by Plaintiff’s experts to avoid

prejudice. Thus, for the foregoing reasons, the Motion is denied.

In the Opposition, Plaintiff moves to strike a range of exhibits to Defendant’s

post-trial opening brief as well as that brief’s references to the challenged exhibits.11

The exhibits in question fall into two categories: (1) those that reference the data and

documents at issue in the Motion and (2) those that present new calculations based

on data already in the record.12 Having denied the Motion, I focus here on the second

category.

Plaintiff argues that these exhibits constitute new expert opinions and

calculations.13 Defendant counters that it is entitled to “synthesiz[e] the trial record”

10 See Motion ¶ 9 (conceding that these documents were available pre-trial). 11 Opposition ¶¶ 5-9. Plaintiff does not object to the inclusion of the remaining exhibits to Takeda’s brief. Id. ¶ 5 n.1. 12 Id. ¶¶ 5-9. 13 Id. ¶ 5. 3 through simple math as long as it “shows its work.”14 Defendant characterizes its

submissions as the result of “purely mechanical” or “basic mathematical”

exercises.15 Boiled down to a similar level of abstraction, the same could be said of

baseball,16 or astrophysics. The record shows that both sides’ experts focused their

trial testimony on explaining their rationale for the type of choices Defendant now

waves away as the mere “plugging-in [of] a different discount rate, average sales

price, or damages period end point.”17 Because it would place an undue burden on

both the Court and Plaintiff to properly address Defendant’s new calculations,

Plaintiff’s Opposition is granted.

Also before me is Plaintiff’s Second Motion to Strike,18 which is not yet fully

briefed. In light of my decision here, the parties should inform the Court what issues

remain active with regard to that motion.

To the extent the foregoing requires an Order to take effect, IT IS SO

ORDERED.

Sincerely,

/s/ Sam Glasscock III Vice Chancellor

14 Def.’s Reply in Further Supp. of its Mot. to Suppl. the Trial R. and Opp’n to Pl.’s Cross-Mot. to Strike (the “Motion RB”) ¶ 3, Dkt. No. 428. 15 Motion RB ¶¶ 15, 17. 16 See Michael Lewis, Moneyball: The Art of Winning an Unfair Game (2003). 17 Motion RB ¶ 15. 18 See Pl.’s Second Mot. to Strike, Dkt. No. 434. 4