Radius Health, Inc. f/k/a Nuvios, Inc. et al v. Orbicular Pharmaceutical Technologies Pvt. Ltd. (D. Mass. 22-cv-11546).

Radius Health accused Orbicular Pharmaceutical of infringing several patents related to compounds and methods of treating osteoporosis and stimulating bone growth. Following claim construction, the parties moved

Judge Stearns granted Orbicular’s motion to strike Radius’ Third Amended Interrogatory Responses.  Radius had sought to supplement its response to an interrogatory seeking an explanation of the basis supporting the validity of the asserted claims by providing sales information to prop up its assertion of nonobviousness due to commercial success.  These supplemented responses were filed seven months after the close of discovery, two months after the close of expert discovery, and just days before dispositive motions were fully briefed.  He found that the lateness of this production meant that it should be excluded unless Radius could show that the failure to provide the information earlier was substantially justified or harmless.  He rejected Radius’ argument that they had produced sufficient information related to sales by producing a handful of documents during fact discovery and had made a deponent available on the issue of commercial success (which Radius sought to introduce at summary judgment) , noting that the sales information only covered a brief period of the relevant time (and still appeared to be incomplete) and that no explanation was offered for the failure to produce sales information beyond 2019.  The offer of a deponent, without providing the underlying data on which to question the deponent, failed to cure that deficiency.

Judge Stearns also rejected the argument that the failure to timely provide the information was harmless, noting that the argument relied entirely on the court allowing a reopening of discovery to permit additional depositions to take place.  He noted that this would further delay resolution of a case that had already run two years, and that further depositions would in any event not remove the prejudice suffered by Orbicular by having (again) to conduct them without the underlying data and being denied the opportunity to provide whatever might have been obtained to an expert for consideration.  Accordingly, Judge Stearns precluded Radius from using any of the information that was not timely disclosed.