Apotex Inc. v. Sanofi-Aventis

Apotex Inc. v. Sanofi-Aventis

Apotex failed to meet the heavy burden under r.52.4 and s.7 to justify more than five expert witnesses because the eight reports represented artificial segmentation, duplication and overlap, were served late in the pre-trial schedule causing potential prejudice and undue expense to Sanofi, and therefore leave to call more than five experts was denied; Apotex must elect five experts within five days and the other affidavits are struck; costs awarded to Sanofi.

Citation
2010 FC 1282
Parties
Plaintiff (t 644 09); Defendant (t 933 09): Apotex Inc.; Defendant (t 644 09); Plaintiff (t 933 09): Sanofi-Aventis; Plaintiff (t 933 09): Bristol-Myers Squibb Sanofi Pharmaceutical Holdings Partnership; Defendant (t 933 09): Apotex Pharmachem Inc.; Defendant (t 933 09): Signa SA de CV
Court
Federal Court
Jurisdiction
Canada
Judgment Date
14 December 2010
Procedural Posture
Patent Infringement and Invalidity; Consolidated Actions / Pre Trial Case Management Motion Regarding Expert Witnesses; Trial Scheduled April 2011
Outcome
Motion dismissed. Apotex limited to evidence of five expert witnesses chosen from the eight whose affidavits were served; remaining affidavits struck; costs awarded to Sanofi.
Legal Topics
Expert Evidence, Canada Evidence Act S.7, Federal Courts Rules R.52.4, Patent Validity, Case Management, Costs
Source Language
English
Intellectual Property Patent Law Civil Procedure Evidence Expert Evidence Canada Evidence Act S.7 Federal Courts Rules R.52.4 Patent Validity +2 more

Case Brief

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Parties

Apotex Inc.

Plaintiff (t 644 09); Defendant (t 933 09)

Sanofi-Aventis

Defendant (t 644 09); Plaintiff (t 933 09)

Bristol-Myers Squibb Sanofi Pharmaceutical Holdings Partnership

Plaintiff (t 933 09)

Apotex Pharmachem Inc.

Defendant (t 933 09)

Signa SA de CV

Defendant (t 933 09)

Procedural Posture

Patent Infringement and Invalidity; Consolidated Actions / Pre Trial Case Management Motion Regarding Expert Witnesses; Trial Scheduled April 2011

Legal Issues

  1. 1 Whether adjournment should be granted until completion of expert report exchange
  2. 2 Whether Apotex demonstrated necessity to call more than five expert witnesses under s.7 Canada Evidence Act and r.52.4 Federal Courts Rules
  3. 3 Whether serving eight expert reports close to trial prejudices the opposing party and justifies striking excess reports

Ratio Decidendi

Apotex failed to meet the heavy burden under r.52.4 and s.7 to justify more than five expert witnesses because the eight reports represented artificial segmentation, duplication and overlap, were served late in the pre-trial schedule causing potential prejudice and undue expense to Sanofi, and therefore leave to call more than five experts was denied; Apotex must elect five experts within five days and the other affidavits are struck; costs awarded to Sanofi.

Court Disposition

Motion dismissed. Apotex limited to evidence of five expert witnesses chosen from the eight whose affidavits were served; remaining affidavits struck; costs awarded to Sanofi.

Orders

  • Apotex’s motion dismissed
  • Apotex may rely on evidence of no more than five of the following expert witnesses whose affidavits have been served: Dr. Sanders, Dr. McLean, Dr. Hirsh, Dr. Newman, Dr. Levy, Dr. Adger, Dr. Wainer and Dr. Lee