In The Dow Chemical Company v. Nova Chemicals Corp., C.A. No. 05-737-JJF (D.Del., May 20, 2010), Judge Farnan entered the Court’s Memorandum Opinion and Oder denying the motion of defendant Nova Chemicals ("Nova") seeking to strike the expert declarations submitted by plaintiff Dow Chemical ("Dow") in support of its counterstatement of facts in opposition to Nova’s motion for summary judgment.  Nova contended that the expert declarations relied upon in Dow’s counterstatement were improper, untimely and should be stricken because they purportedly constituted additional expert opinions that should have been filed before the end of discovery and were improperly molded to meet Dow’s legal challenges in responding to the summary judgment motions and, thus, Nova allegedly was unduly prejudiced.  Id. at 3-5.  The Court disagreed with Nova and refused to strike the expert declarations.   Id. at 5-7.


The Court noted that, "[i]n patent cases, discovery issues, such as the exclusion of evidence, are evaluated under Third Circuit precedent.  Under that precedent ‘[t]he exclusion of critical evidence is considered an extreme sanction, not normally to be imposed absent a showing of willful deception or flagrant disregard of a court order by the proponent of the evidence.’"

Upon evaluation, the Court concluded that "the subject declarations only elaborate and therefore, should not be excluded.  The declarations are not newly conceived arguments.  The subject declarations are more in line with the portion of the testimony that was allowed in Forest Labs, Inc. v. Ivex Pharms., Inc., 237 F.R.D. 106 (D.Del. 2006)."

A copy of the Memorandum Opinion is attached hereto.