Post-Trial

• Author: Kenneth Dorsney
• Pages: 407-415

407

chapter 16

Post-Trial1

I. Post-Trial Considerations

A significant amount of time is spent planning strategy and consider-

ing potential courses of action before the issuance of the court’s decision.

However, parties are never able to predict with certainty how a court will

adjudicate an issue or what the bases for a court’s decision will be until

the court issues its findings of fact and conclusions of law. For this reason,

parties and their counsel often revisit early strategy decisions and contem-

plate issues that may have arisen after trial. This chapter focuses on the

main considerations that need to be addressed post-trial and pre-appeal in

Hatch-Waxman litigation.

II. Bench Rulings after the Close of Evidence

Because the relief typically sought in Abbreviated New Drug Application

(ANDA) cases is an injunction, such cases are usually tried to the bench.2

Federal Rule of Civil Procedure 52(c) sets forth the counterpart to motions for

judgment as a matter of law for cases that are not tried to a jury. This Rule

provides that the court can enter judgment against a party that has been

fully heard on an issue if the controlling law requires such judgment upon a

finding adverse to that party. Because judges may decline to render judgment

1. Frederick L. Cottrell, III, Steven J. Fineman, and Jason J. Rawnsley, Richards,

Layton & Finger, P.A.

2. See, e.g., Novartis Pharm. Corp. v. Roxane Labs., Inc., 2009 WL 1140440, at *1

(D.N.J. Apr. 28, 2009) (striking jury demand in ANDA case) (citing In re Tech. Licensing

Corp., 423 F.3d 1286, 1288 (Fed. Cir. 2005) (denying writ of mandamus to compel the

district court to allow jury trial in patent infringement action not seeking damages)). When

the plaintiff seeks damages, however—for example, when the generic manufacturer has

undertaken an at-risk launch of its product—Hatch-Waxman cases are tried to a jury. See,

e.g., Sanofi-Aventis Deutschland GmbH v. Glenmark Pharm. Inc., USA, 2011 WL 383861,

at *4–5 (D.N.J. Feb. 3, 2011) (denying motion in limine to exclude testimony of defendants’

reasonable royalty damages expert).