COURT OF CHANCERY OF THE S AM G LASS C OCK III V ICE C HANCELLOR STATE OF DELAWARE C OURT OF C HANCERY C OURTHOUSE 34 T HE C IRCLE G EORGETOWN , D ELAWARE 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 Plaz a, 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 Re cord (the

“ Motion ” ) and Plaintiff ’ s corresponding Cross

- M otion to Strike (t he “ Opposition ” )

. 1

T he Motion see ks to supplement the record, post

- trial, with two categories of
documents: (1) upda ted IQVIA product sales data from December 2022 and (2)
AbbVie “ recovery scorecards ” that reflect actual L upron sales data for specific months pre

- and post

- shortage. 2

1 Def s
. ’ Mot. to Suppl. t he Trial R

. , Dkt. No. 419 (the “ Motion ” ) ; Pl. ’ s Opp ’ n to Mot. to Suppl. t he Trial R

. and C ross
- 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 whet her t o 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
Th e 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 t o Plaintiff. 5 Both sides ’ arguments rely heavily on experts ’ complex fina ncial projections , of which the IQVIA data is a core input

. 6 However, Defendant asserts
that it “is not planni ng ‘to incorporate new IQVIA data into its damages analysis

. ’ ” 7 Rather, per Defendant, th is new data will all ow the Court to compare “Lupron ’s
latest actual market share to what th e parties predicted it to be[. ] ” 8
The existing data shows that Lupron ’ s market share fluctuat es from month to
month

. 9 A pr oper determination of whether a given month ’ s data diverge s from proje ctions 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 Pharma ceutical Co. Ltd. ’ s Post

- Trial Opening Br ., Dkt. No. 422 ; Pl

. ’ s Post

Trial Opening Br. , Dkt. No . 421. 7 Motion ¶ 8 (citation omitted ). 8 Id. ¶ 6. 9 See P l. ’ 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 ju dicial economy. I also find that the recovery scorecards must be excluded due to concern s of
ti meliness , 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 seek s to incorporate the reco very scorecards into a host of calculations and arguments that would likely require , a t minimum, additional analysis and tes timony by Plaintiff ’ s experts to avoid prejudice. Thus, f

or the foregoing reasons, the Motion is d enied.
I n 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 chall enged exhibits. 11 The exhibits in q uestion fall into two categories: (1) those that re ference the data and
documents at issue in th e Motion and (2) those that present new calculations based
on data already i n the record. 12 Havi ng denied th e Motion, I focus here on the second
category. Plaintiff argues that these exhib its 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 characteriz es its

su bmissions as the result of “ purely mechanical ” or “ basic mathematical ”
exercise s. 15 Boiled down to a similar level of abstraction , the same could be said of
baseball , 16 or astrophysics

. The recor d shows that both sides ’ experts focused their

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

wave s away as the mere “ pl ugging

- in [of] a diffe rent 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 p roperly 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 , t he 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 D ef. ’ s R eply in Further Supp. of its Mot. to Suppl. t he 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.