Court Credits Expert Testimony Of Leason Ellis’ Dr. Michael Davitz

In one of the largest "pay-for-delay" pharmaceutical antitrust cases involving the Alzheimer’s drug Namenda, a team from Leason Ellis provided an Expert Report focused on the underlying Paragraph IV litigation on one of the patents covering Namenda. The Expert Report detailed what a reasonable patent attorney would have informed the parties about their likelihood of success in the patent litigation. In reviewing the Expert Report, the Court stated that:

The Court has carefully reviewed Davitz’s exceptionally well written and highly readable (especially for this type of litigation) 193-page report, in which he lays out in great detail the reasons why he believes that Mylan was “substantially likely” to prevail in its Paragraph IV challenge to the ’703 Patent… But the Court was once a lawyer, so I know that clients want more. Being told that you are “substantially likely” to prevail is never enough; it inevitably leads to the question, “Just how much is “substantial?” Every client wants a number. Dr. Davitz opines that Mylan was at least 70% likely to prevail. That estimate is admissible. Lawyers are not engineers, and much of what they are asked to predict cannot be based on anything that reduces to numbers and mathematics. That does not make it any less valuable to clients, or any less the product of expertise on the part of the advising attorneys. Nor does it mean that Dr. Davitz did not employ any ascertainable or reliable methodology in reaching his conclusions. On the contrary, he employed a very precise methodology, which involved a complete review of the patent’s file wrapper, the entire record in the Paragraph IV lawsuit, and the body of patent law in effect at the time the litigation was scheduled for trial. He does not offer legal opinions, but clearly articulates his view of the strengths and weaknesses of each side’s arguments in light of the case law at the time.

The Leason Ellis team was led by partners, Michael A. Davitz and Jordan Garner with assistance from Mel Garner and two associates, Hoda Rifai-Bashjawish and Jarryd Werts. See In re Namenda Indirect Purchase Antitrust Litigation, Case 1:15-cv-06549-CM-RWL.