IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

SANOFI, et al.,
Plaintiffs,
Civil Action No. 14-264-RGA

v.
GLENMARK GENERICS INC. USA,
et al.,
Defendants.

ORDER

I have the parties' letters in regard to the Ardehali deposition testimony. (D.I. 295, 296).

It is apparent that if it should have been admitted at trial under Fed. R. Civ. P. 32(a)(l) & (a)(4),
it does not matter if it is not independently admissible under Fed. R. Evid. 804(b)(1 ). See In re

Bankers Trust Co., 752 F.2d 874, 888 n.17 (3d Cir. 1984).
Defendants' only objection to admission under Rule 32 is that Plaintiff procured Dr.
Ardehali's absence by settling with the defendant who had retained him. It is clear to me that
the settlement is the direct cause of Dr. Ardehali not being present at trial, but it seems that more
is needed. "[P]rocuring absence and doing nothing to facilitate presence are quite different
things." Carey v. Bahama Cruise Lines, 864 F.2d 201, 204 (1st Cir. 1988). There is nothing in
the record to suggest that the settlement was done for any extraordinary reason. Thus, I think I
have to reverse my earlier ruling and hold that the deposition testimony is admissible pursuant to
Rule 32.
I still have to consider Rule 403. (D.I. 295). Unfortunately, in view of my initial ruling at

trial, the record on Rule 403 considerations is underdeveloped. Defendants suggest that
admission would be "unduly prejudicial" because they were not present for his deposition.
Given that he was going to be a live expert witness for codefendant Alkem at trial, there was no
one at the deposition who would likely have had a reason to question him to bring out the points
that Defendants might have wanted to make. Further, given that Plaintiff already had at least one
cardiologist expert testify on every relevant issue, to the extent Dr. Ardehali said anything helpful
to Plaintiffs cause, it is cumulative to whatever its experts testified to at trial. Overall, snippets
of Dr. Ardehali's testimony are unlikely to have much probative value. Thus, I believe that I
might have excluded the testimony as its probative value would have been substantially
outweighed by the danger of unfair prejudice and needless presentation of cumulative evidence.
I think the better course at this point is to tentatively admit the testimony. (D.I. 295, Exh.
A). The post-trial briefing will reveal whether it has any significant probative value. If it does
not, I will strike it from the trial record. If it does, I will consider it.
IT IS SO ORDERED this

7day of June 2016.