COURT OF CHANCERY

OF THE

SAM GLASSCOCK III

VICE CHANCELLOR

STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE

34 THE CIRCLE

GEORGETOWN, DELAWARE 19947

Date Submitted: April 24, 2023

Date Decided: May 10, 2023

A. Thompson Bayliss, Esquire

Eric A. Veres, Esquire

Joseph A. Sparco, Esquire

ABRAMS & BAYLISS LLP

20 Montchanin Road, Suite 200

Wilmington, Delaware 19807

Kevin R. Shannon, Esquire

Christopher N. Kelly, Esquire

Daniel M. Rusk, IV, Esquire

POTTER ANDERSON & CORROON LLP

1313 North Market Street

Hercules Plaza, 6th Floor

Wilmington, DE 19801

Re: AbbVie Endocrine Inc. v. Takeda Pharmaceutical Co. Ltd., C.A. 

No. 2020-0953-SG

Dear Counsel:

Before me are Defendant’s Motion to Supplement the Trial Record (the 

“Motion”) and Plaintiff’s corresponding Cross-Motion to Strike (the “Opposition”).

1

The Motion seeks to supplement the record, post-trial, with two categories of 

documents: (1) updated IQVIA product sales data from December 2022 and (2) 

AbbVie “recovery scorecards” that reflect actual Lupron sales data for specific 

months pre- and post-shortage.2

1 Defs.’ Mot. to Suppl. the Trial R., Dkt. No. 419 (the “Motion”); Pl.’s Opp’n to Mot. to Suppl. 

the Trial R. and Cross-Mot. to Strike, Dkt. No. 427 (the “Opposition”). 

2 Motion ¶ 1. 
2

“A motion to supplement the record is addressed to the discretion of the trial 

court.”

3

 In determining whether to admit new evidence, the Court looks to a range 

of factors including timeliness and judicial economy but, ultimately, the analysis 

“turns on the interests of fairness and justice.”

4

The principal issue before the Court at this stage is the calculation of damages

stemming from Defendant’s breach of an agreement to supply a critical drug to 

Plaintiff.5 Both sides’ arguments rely heavily on experts’ complex financial 

projections, of which the IQVIA data is a core input.

6 However, Defendant asserts 

that it “is not planning ‘to incorporate new IQVIA data into its damages analysis.’”

7

Rather, per Defendant, this new data will allow the Court to compare “Lupron’s 

latest actual market share to what the parties predicted it to be[.]”

8

 

The existing data shows that Lupron’s market share fluctuates from month to 

month.

9 A proper determination of whether a given month’s data diverges from 

projections due to a long-term trend, rather than transitory factors, would likely 

3

In re Transamerica Airlines, Inc., 2008 WL 509817, at *4 (Del. Ch. Feb. 25, 2008).

4

Id.

5

Joint Pre-Trial Stipulation and Order ¶¶ 1, 31, 60, Dkt. No. 411. 

6

See Def. Takeda Pharmaceutical Co. Ltd.’s Post-Trial Opening Br., Dkt. No. 422; Pl.’s PostTrial Opening Br., Dkt. No. 421. 

7 Motion ¶ 8 (citation omitted). 

8

Id. ¶ 6. 

9

See Pl.’s Pre-Trial Br. 4, Dkt. No. 406 (showing Lupron’s fluctuating post-shortage market 

share). 
3

require additional expert testimony. Accordingly, I find that the December 2022 

IQVIA data must be excluded in the interests of both fairness and judicial economy. 

I also find that the recovery scorecards must be excluded due to concerns of 

timeliness, prejudice, and judicial economy. Although the documents in question 

were available to Defendant at trial,10 Defendant waited more than two months to 

bring the Motion. More to the point, Defendant seeks to incorporate the recovery 

scorecards into a host of calculations and arguments that would likely require, at 

minimum, additional analysis and testimony by Plaintiff’s experts to avoid 

prejudice. Thus, for the foregoing reasons, the Motion is denied.

In the Opposition, Plaintiff moves to strike a range of exhibits to Defendant’s 

post-trial opening brief as well as that brief’s references to the challenged exhibits.11 

The exhibits in question fall into two categories: (1) those that reference the data and 

documents at issue in the Motion and (2) those that present new calculations based 

on data already in the record.12 Having denied the Motion, I focus here on the second 

category. 

Plaintiff argues that these exhibits constitute new expert opinions and 

calculations.13 Defendant counters that it is entitled to “synthesiz[e] the trial record”

10 See Motion ¶ 9 (conceding that these documents were available pre-trial). 

11 Opposition ¶¶ 5-9. Plaintiff does not object to the inclusion of the remaining exhibits to 

Takeda’s brief. Id. ¶ 5 n.1. 

12 Id. ¶¶ 5-9. 

13 Id. ¶ 5. 
4

through simple math as long as it “shows its work.”

14 Defendant characterizes its

submissions as the result of “purely mechanical” or “basic mathematical”

exercises.15 Boiled down to a similar level of abstraction, the same could be said of

baseball,

16 or astrophysics. The record shows that both sides’ experts focused their 

trial testimony on explaining their rationale for the type of choices Defendant now 

waves away as the mere “plugging-in [of] a different discount rate, average sales 

price, or damages period end point.”

17

 Because it would place an undue burden on 

both the Court and Plaintiff to properly address Defendant’s new calculations, 

Plaintiff’s Opposition is granted.

Also before me is Plaintiff’s Second Motion to Strike,

18 which is not yet fully 

briefed. In light of my decision here, the parties should inform the Court what issues 

remain active with regard to that motion. 

To the extent the foregoing requires an Order to take effect, IT IS SO 

ORDERED.

Sincerely,

/s/ Sam Glasscock III

Vice Chancellor

14 Def.’s Reply in Further Supp. of its Mot. to Suppl. the Trial R. and Opp’n to Pl.’s Cross-Mot. 

to Strike (the “Motion RB”) ¶ 3, Dkt. No. 428. 

15 Motion RB ¶¶ 15, 17.

16 See Michael Lewis, Moneyball: The Art of Winning an Unfair Game (2003).

17 Motion RB ¶ 15. 

18 See Pl.’s Second Mot. to Strike, Dkt. No. 434.