Richards Layton & Finger

Judge Andrews Denies Request to Strike Daubert Briefing

December 19, 2017

In B. Braun Melsungen AG v. Becton, Dickinson & Co., No. 16-411-RGA (D. Del. Dec. 5, 2017), Judge Andrews refused a request to strike the plaintiffs’ Daubert briefing for having an excessive number of pages. The plaintiffs had filed three Daubert motions, each accompanied by a 20-page brief. Judge Andrews acknowledged that he has previously taken different approaches to this question, but did not strike the briefing. According to Judge Andrews, the defendants “will have to console themselves with the thought that excessive briefing of Daubert issues is usually a sign of weakness, not of strength.”

Key Point: In deciding how extensively to brief Daubert issues before Judge Andrews, parties will have to weigh whether a large number of pages are truly merited or consider including the proposed briefing in the scheduling order to avoid disputes later.