Pharmascience Inc. v. Janssen Inc.

Pharmascience Inc. v. Janssen Inc.

The contested reply paragraphs were inadmissible because they introduced new selection criteria and a different dataset that could and should have been anticipated and thus constituted impermissible case-splitting and bolstering of the plaintiff's in-chief expert opinion; admitting them would cause prejudice and inefficiency given trial proximity and the volume of new material, so the court refused leave for the contested portions while granting leave for uncontested portions and the Ferreira reply report and allowing defendants to file sur-reply.

Citation
2025 FC 669
Parties
Plaintiff: Pharmascience Inc.; Defendant: Janssen Inc.; Defendant: Janssen Oncology, Inc.; Defendant: BTG International Ltd
Court
Federal Court
Jurisdiction
Canada
Judgment Date
10 April 2025
Procedural Posture
Patent Damages Claim Under S.8 of the Patent Act Arising From Delay Under Pm(noc) Regulations / Pre Trial Motion for Leave to File Reply Expert Reports (hearing March 27, 2025; Trial Scheduled May 26, 2025)
Outcome
Motion dismissed except as to uncontested portions; leave granted to file Ferriera Reply Report and uncontested paragraphs of Hollis and Soriano Reply Reports; defendants granted leave to file sur-reply; costs awarded to defendants.
Legal Topics
Reply Expert Evidence, Case Splitting, Admissibility of Expert Reports, First Mover Advantage Analysis, Damages for Regulatory Delay, Leave to File Expert Reports
Source Language
English
Patent Law Civil Procedure Evidence Regulatory Litigation (pm(noc) Regulations) Reply Expert Evidence Case Splitting Admissibility of Expert Reports First Mover Advantage Analysis +2 more

Case Brief

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Parties

Pharmascience Inc.

Plaintiff

Janssen Inc.

Defendant

Janssen Oncology, Inc.

Defendant

BTG International Ltd

Defendant

Procedural Posture

Patent Damages Claim Under S.8 of the Patent Act Arising From Delay Under Pm(noc) Regulations / Pre Trial Motion for Leave to File Reply Expert Reports (hearing March 27, 2025; Trial Scheduled May 26, 2025)

Legal Issues

  1. 1 Whether contested paragraphs of plaintiff's proposed reply expert reports are admissible as responsive reply evidence
  2. 2 Whether the contested material raises a truly new matter that could not reasonably have been anticipated
  3. 3 Whether the contested material constitutes impermissible case-splitting or bolstering

Ratio Decidendi

The contested reply paragraphs were inadmissible because they introduced new selection criteria and a different dataset that could and should have been anticipated and thus constituted impermissible case-splitting and bolstering of the plaintiff's in-chief expert opinion; admitting them would cause prejudice and inefficiency given trial proximity and the volume of new material, so the court refused leave for the contested portions while granting leave for uncontested portions and the Ferreira reply report and allowing defendants to file sur-reply.

Court Disposition

Motion dismissed except as to uncontested portions; leave granted to file Ferriera Reply Report and uncontested paragraphs of Hollis and Soriano Reply Reports; defendants granted leave to file sur-reply; costs awarded to defendants.

Orders

  • Plaintiff granted leave to serve and file the Ferreira Reply Report and the uncontested paragraphs of the Hollis Reply Report and Soriano Reply Report
  • Defendants granted leave to file sur-reply evidence in response to the admitted Reply Evidence