Merck & Co. Inc. v. Apotex Inc.

Merck & Co. Inc. v. Apotex Inc.

Because the defendant had prior court leave to include paragraph 19(o), it could not be struck; particulars were unnecessary for specified technical paragraphs because plaintiffs could, with expert assistance, prepare an intelligent reply, but particulars identifying non-lactose excipients and any material facts beyond 'degradation by excipients' in 19(m)(i)-(ii), and particulars supporting allegations of wilful misrepresentation in 19(o), had to be provided by the defendant.

Citation
2001 FCT 175
Parties
Plaintiff (defendant by Counterclaim): MERCK & CO., INC.; Plaintiff (defendant by Counterclaim): MERCK FROSST CANADA & CO.; Plaintiff (defendant by Counterclaim): ZENECA LIMITED; Plaintiff (defendant by Counterclaim): ASTRAZENECA UK LIMITED and ASTRAZENECA CANADA INC.; Defendant (plaintiff by Counterclaim): APOTEX INC.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
12 March 2001
Procedural Posture
Interlocutory Motion Under Federal Court Rules R.221 and R.181 / Motion for Particulars and to Strike (pre Trial)
Outcome
Motion partially granted: paragraph 19(o) not struck; particulars ordered as to certain paragraphs; other particulars refused; no costs awarded.
Legal Topics
Motion to Strike, Particulars, Pleading Requirements, Wilful Misrepresentation, Expert Evidence
Source Language
English
Civil Procedure Intellectual Property Litigation Pre Trial Procedure Motion to Strike Particulars Pleading Requirements Wilful Misrepresentation Expert Evidence

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

MERCK & CO., INC.

Plaintiff (defendant by Counterclaim)

MERCK FROSST CANADA & CO.

Plaintiff (defendant by Counterclaim)

ZENECA LIMITED

Plaintiff (defendant by Counterclaim)

ASTRAZENECA UK LIMITED and ASTRAZENECA CANADA INC.

Plaintiff (defendant by Counterclaim)

APOTEX INC.

Defendant (plaintiff by Counterclaim)

Procedural Posture

Interlocutory Motion Under Federal Court Rules R.221 and R.181 / Motion for Particulars and to Strike (pre Trial)

Legal Issues

  1. 1 Whether paragraph 19(o) of the defendant's re-amended statement of defence could be struck out
  2. 2 Whether particulars were required for paragraphs 19(f)(i), 19(f)(iii), 19(g)(ix), 19(g)(xii) and 19(l)
  3. 3 Whether particulars were required for paragraphs 19(m)(i) and 19(m)(ii) concerning excipients and other material facts

Ratio Decidendi

Because the defendant had prior court leave to include paragraph 19(o), it could not be struck; particulars were unnecessary for specified technical paragraphs because plaintiffs could, with expert assistance, prepare an intelligent reply, but particulars identifying non-lactose excipients and any material facts beyond 'degradation by excipients' in 19(m)(i)-(ii), and particulars supporting allegations of wilful misrepresentation in 19(o), had to be provided by the defendant.

Court Disposition

Motion partially granted: paragraph 19(o) not struck; particulars ordered as to certain paragraphs; other particulars refused; no costs awarded.

Orders

  • Paragraph 19(o) shall not be struck.
  • Defendant must identify the 'excipients' referred to in paragraph 19(o).