Stanway v. Wyeth Canada Inc.

2013 BCSC 369 Stanway v. Wyeth Canada Inc.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Stanway v. Wyeth Canada Inc., 2013 BCSC 369 Date: 20130307 Docket: S111075 Registry: Vancouver Between: Dianna Louise Stanway Plaintiff And Wyeth Canada Inc., Wyeth Pharmaceuticals, Inc., Wyeth Holdings Canada Inc., Wyeth Canada, Wyeth-Ayerst International Inc. and Wyeth Defendants Before: The Honourable Madam Justice Gropper Reasons for Judgment on Examination for Discovery Refusals Counsel for the Plaintiff: D. A. Klein Counsel for the Defendants: W. McNamara Place and Date of Trial/Hearing: Vancouver, B.C. January 21 and 22, 2013 Place and Date of Judgment: Vancouver, B.C. March 7, 2013 Introduction [1] The representative plaintiff in this class proceeding seeks an order pursuant to subrules 7-2(18) and (25) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules] that a representative of the defendant Wyeth Canada Inc., Ms. Judith Halmos-Stark, answer questions that were allegedly improperly refused at the examination for discovery. This examination took place from November 19 to 21, 2012 and this application was filed shortly thereafter on November 27, 2012. [2] The defendants challenge the propriety and relevance of the questions posed. More specifically, they object to the plaintiff examining Ms. Halmos-Stark in the following categories: 1) marketing claims, particularly unproven benefits; 2) expert opinions; 3)

endometrial cancer outbreak; 4) authenticity of documents; 5) sales information; 6) corporate structure and division of responsibility; 7) codes of employee conduct; and 8) sales information and promotional budget. [3] The principal issue for determination is the proper scope of examination for discovery in the context of class proceedings. I will then consider the eight categories of objections and conclude by outlining my disposition in respect of these objections, further detailed in Appendices A and B. Background [4] This class proceeding regards the ingestion of hormone replacement therapy drugs manufactured by the defendants that allegedly caused breast cancer. It was certified in my reasons for judgment on August 4, 2011, indexed at 2011 BCSC 1057. In my reasons, I defined the class as follows: Women who were prescribed Premplus, or Premarin in combination with progestin, in Canada during the Class Period and ingested Premplus, or Premarin in combination with progestin and were thereafter diagnosed with breast cancer. The "Class Period" runs from January 1, 1977 until December 1, 2003, inclusive. [5] Five common issues were certified, as excerpted in para. 7 of my reasons: (a) Is there a causal connection between the use of Premplus, or Premarin in combination with progestin, and breast cancer and if so, what is the nature and extent of the connection? (b) Did the

Defendants, or any of them, owe a duty of care to class members? (c) Did the Defendants, or any of them, breach a duty of care to class members, and if so, when? (d) If the Defendants, or any of them, breached a duty of care owed to class members, were the Defendants, or any of them, guilty of conduct that justifies punishment? (e) If the answer to common issue 1(d) is "yes" and if the aggregate compensatory damages awarded to class members does not achieve the objectives of retribution, deterrence and denunciation in respect of such conduct, what amount of punitive damages is awarded against the Defendants, or any of them? [6] For class members who ingested Premplus or Premarin supplied in British Columbia, the common issues were defined as follows: (a) Did the Defendants' solicitations, offers, advertisements, promotions, sales and supply of Premplus and Premarin for personal, family or household use by class members fall within the meaning of "consumer transactions" under the Business Practices and Consumer Protection Act ("BPCPA")? (b) With respect to the supply in British Columbia of Premplus and Premarin to class members for their personal, family or household use, are the Defendants, or any of them, "suppliers" as defined in the BPCPA? (c) Are the class members "consumers" as defined by the BPCPA? (d) Did the Defendants, or any of them, engage in conduct that constituted

deceptive acts or practices contrary to the BPCPA as alleged in the Amended Statement of Claim? [7] The Court of Appeal upheld this certification (2012 BCCA 260) and the matter is now proceeding to trial. Scope of Examination for Discovery [8] Pursuant to subrule 7-2(18) of the Rules, the scope of examination for discovery is defined broadly: Scope of examination (18)Unless the court otherwise orders, a person being examined for discovery (a) must answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action, and (b) is compellable to give the names and addresses of all persons who reasonably might be expected to have knowledge relating to any matter in question in the action. [9] Mr. Justice Smith reviewed the evolution of the law with respect to the scope of examination for discovery in More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166: [4] The new Rules came into effect on July 1, 2010, but the language in rule 7-2 (18) is identical to the former rule 27 (22). As Griffin J. said in Kendall v. Sun Life Assurance Company of Canada, 2010 BCSC 1556 [Kendall] at para. 7 "the scope of examination for discovery has remained unchanged and is very broad." In Cominco Ltd. v. Westinghouse Can Ltd. (1979), 11 B.C.L.R. 142 (C.A.) [Cominco], an early and leading case under the former rule,

the Court of Appeal said at 151 that "rigid limitations rigidly applied can destroy the right to a proper examination for discovery." The court in Cominco also adopted the following statement from Hopper v. Dunsmuir No. 2 (1903), 10 B.C.R. 23 (C.A.) at 29: It is also obvious that useful or effective cross-examination would be impossible if counsel could only ask such questions as plainly revealed their purpose, and it is needless to labour the proposition that in many cases much preliminary skirmishing is necessary to make possible a successful assault upon the citadel, especially where the adversary is the chief repository of the information required. [5] In Day v. Hume, 2009 BCSC 587 this court said at para. 20: The principles emerging from the authorities are clear. An examination for discovery is in the nature of cross-examination and counsel for the party being examined should not interfere except where it is clearly necessary to resolve ambiguity in a question or to prevent injustice. [10] Smith J. observed one distinction between the Rules and the former rules of court in regard to discovery: [6] While Rule 7-2 (18) is the same as its predecessor, the new Rules create a distinction that did not previously exist between oral examination for discovery and discovery of documents. The former rule 26 (1) required a party to list all documents "relating to every matter in

question in the action." Although disclosure in those terms may still be ordered by the court under Rule 7-1 (14), the initial disclosure obligation is set out more narrowly in Rule 7-1(1) ... . [11] He concluded that this change was influenced by the recognition of the principle of proportionality in the Rules and in the common law: [7] Under the former rules, the duty to disclose documents and the duty to answer questions on oral examination were therefore controlled by the same test for relevance. Under the new Rules, different tests apply, with the duty to answer questions on discovery being apparently broader than the duty to disclose documents. [8] Although that may appear to be an anomaly, there are at least two good reasons for the difference. One reason is that if the court is to be persuaded that the broader document discovery made possible by rule 7-1(14) is appropriate in a particular case, some evidence of the existence and potential relevance of those additional documents will be required. The examination for discovery is the most likely source of such evidence. [9] The second reason relates to the introduction of proportionality as a governing concept in the new Rules. Rule 1-3 (2) states: (2) Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are

proportionate to (a) the amount involved in the proceeding, (b) the importance of the issues in dispute, and (c) the complexity of the proceeding. ... [11] The new Rules recognize that application of a 19th century test to the vast quantity of paper and electronic documents produced and stored by 21st century technology had made document discovery an unduly onerous and costly task in many cases. Some reasonable limitations had become necessary and Rule 7-1 (1) is intended to provide them. [12] In support of this finding, he noted the imposition of time limitations on parties conducting their examination for discovery in the Rules. This procedural limit engenders proportionality by forcing parties to be effective with the time allotted to them: [12] The new Rules also impose limitations on oral examination for discovery, but do so through a different mechanism. Rule 7-2 (2) now limits an examination for discovery to seven hours or to any longer period to which the person being examined consents. Although the test for relevance of a particular question or group of questions remains very broad, examining parties who ask too many questions about marginally relevant matters, who spend too much time pursuing unproductive trains of inquiry or who elicit too much evidence that will not be admissible at trial risk leaving themselves with insufficient time for obtaining more important

evidence and admissions. [13] In sum, Smith J.'s reasons suggest that the scope of examination for discovery is not limitless. What may be considered relevant will be treated broadly but certain procedural limitations have been put in place in the Rules to direct that parties conduct their litigation in a manner that is proportional. The Scope of Examination for Discovery in the Context of Class Proceedings [14] The Class Proceedings Act, R.S.B.C. 1996, c. 50 [CPA] provides that parties to a class proceeding have the same rights for discovery as found under the Rules, pursuant to s. 17(1). [15] The defence asserts the correct approach to the conduct of examination for discovery in a class proceeding is to limit the general broad scope principle by way of the certified class definition and common issues. [16] The scope of examination for discovery in class proceedings has not been specifically addressed in British Columbia. [17] This issue has been more fully reviewed in Ontario. [18] Andersen v. St. Jude Medical, Inc., 2010 ONSC 4708 at para. 38 (Andersen) set out the rule for the scope of examination for discovery in the context of class proceedings: In a civil proceeding, the relevance of the facts to the issues in the proceeding is usually determined with reference to the claims and defences raised in the pleadings. In the context of a class proceeding, relevance is also

governed by the common issues that have been certified for trial, and not by any individual issues that remain. It is therefore the certification order as informed by the pleadings that define relevance for this phase of the trial: [citations omitted]. [19] This rule was reiterated by Mr. Justice Perell in Axiom Plastics Inc. v. E.I. DuPont Canada Co., 2011 ONSC 4510 at para. 38 (Axiom), although he also noted there was case authority that suggested this approach of restricting the scope of the common issues and the associated discovery process is not absolute: para. 40. [20] Perell J. again had the opportunity to consider the scope of examination for discovery in the class proceeding 2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp., 2012 ONSC 6549 (Quizno's). He found that the parameters for questions led in examination for discovery are always governed by the fundamental evidentiary principles of materiality and relevance: para. 68. [21] I find the defendants' characterization of the rule in Ontario as limiting discovery to the common issues is not reflected in the cases to which I have referred. In Andersen, the court found that relevance was the circumscribing principle, relevance being governed by the common issues. In Axiom, Perell J. found that in class proceedings, the general rule is that examinations for discovery are restricted to the issues that have been certified, although he qualified that rule as not being absolute. [22] I do however note an important distinction between our Rules and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provide for specific proportionality limitations upon the scope of discovery:

CONSIDERATIONS General 29.2.03 (1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether, (a) the time required for the party or other person to answer the question or produce the document would be unreasonable; (b) the expense associated with answering the question or producing the document would be unjustified; (c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice; (d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and (e) the information or the document is readily available to the party requesting it from another source. [23] These specific considerations are not addressed in our Rules. Rather, the rule for proportionality is to conduct the proceeding in a manner that is proportionate to (a) the amount involved in the proceeding, (b) the importance of the issues in dispute and (c) the complexity of the issues: subrule 1-3(2). [24] This class proceeding involves potentially a large sum of damages, important issues and complex factual and legal questions. These factors suggest that examination for discovery should not be limited in scope. [25] That said, I accept that the proportionality principle must be applied

alongside the principles governing class proceedings. These principles are described in Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534 at paras. 27 - 29 and were reiterated in Hollick v. Toronto (City), [2001] 3 S.C.R. 158 at para. 15 (Hollick). I cite from Hollick for those principles: ... class actions provide three important advantages over a multiplicity of individual suits. First, by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis. Second, by distributing fixed litigation costs amongst a large number of class members, class actions improve access to justice by making economical the prosecution of claims that any one class member would find too costly to prosecute on his or her own. Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour to take full account of the harm they are causing, or might cause, to the public. ... [26] I find the scope of examination for discovery in the context of class proceedings shall also be defined broadly. It will not be limited by the common issues. Questions led in examination shall be subject to the evidentiary principles of materiality and relevance, the key determinant of relevance and materiality being the certified common issues. Categories [27] Mindful of the principles reviewed above, I making the following findings with respect to the categories of objections to questions raised in the course of examination for discovery.

1. Over-Promotion [28] As noted in Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634, the negligence of a drug manufacturer may involve both minimizing the risks of a product and over-emphasizing its alleged benefits. At para. 25, Mr. Justice La Forest, writing for the majority, stated: ... A similar observation was made by Robins J.A. in Buchan v. Ortho Pharmaceutical (Canada) Ltd. (1986), 12 O.A.C. 361, which involved a suit by a woman against the Ortho pharmaceutical company after that woman had suffered a stroke from the use of Ortho's Novum oral contraceptives. In finding Ortho liable for failing to warn consumers about the risk of stroke inherent in the use of the contraceptives, Robins J.A. made the following observation, at p. 380: As between drug manufacturer and consumer, the manufacturer is a distant commercial entity that, like manufacturers of other products, promotes its products directly or indirectly to gain consumer sales, sometimes, as in this case, accentuating value while under-emphasizing risks. Manufacturers hold an enormous informational advantage over consumers and, indeed, over most physicians. The information they provide often establishes the boundaries within which a physician determines the risks of a possible harm and the benefits to be gained by a patient's use of a drug. [29] I accept the principle that the negligence of a drug manufacturer can involve both the minimization of health risks and an over-emphasis of health benefits. I find that questions relating to benefits claimed by the defendants are appropriate. The common issue concerning the defendants' breach of duty to the plaintiff embraces this area of inquiry.

2. Expert Opinion [30] The plaintiff is entitled to ask questions of Ms. Halmos-Stark provided those questions address subject matter within her area of expertise. [31] A supporting authority for this proposition is Westfair Properties (Pacific) Ltd. v. Aitken Wreglesworth Associates Architects Ltd., [1995] B.C.J. No. 225, 1995 CanLII 2204 (S.C.) at para. 7.

3. Endometrial Cancer [32] I consider the defendants' position that "anything not dealing with breast cancer is irrelevant" will unduly limit the scope of examination for discovery. [33] Instead, I find that questions relating to endometrial cancer are material and relevant to the issue of whether the defendants breached their duty.

4. Authenticity of Documents [34] This area is one the defendants have taken under advisement and are reviewing. [35] As a general comment, I consider the authenticity of documents is an appropriate area upon which to examine a witness at examination for discovery.

5. Sales Information [36] Questions concerning sales figures after 2003 are relevant to the issue of the drop in breast cancer rates in Canada after the release of the Women's Health Initiative study. [37] Although this question deals with information outside of the defined class period, it is potentially material and relevant. In reaching this conclusion, I note that these statistics were referred to in Stanway v. Wyeth Canada Inc., 2012 BCCA 260 at paras. 23 and 24 and regarded as particularly relevant: A watershed event in the use of hormone therapy was the release in June 2002 of the results of the Women's Health Initiative Study (the "WHI study"). It found that 8,500 women who used estrogen plus progestin therapy had a small but statistically significant increased risk of breast cancer compared to 8,100 women who were given a placebo. Eight more incidents of breast cancers per 10,000 women per year were observed in the group taking hormone therapy. The WHI study was terminated when researchers concluded it would be unethical to continue given the harm observed in the study. A public warning was issued in July 2002, after which the prescriptions for hormone therapy products fell from 12.7% of all 50-69 year-old Canadian women in 2002 to 4.9% of all 50-69 year-old Canadian women in 2004. The decreased use coincided with a 9.6% drop in Canadian breast cancer rates. [38] In view of these reasons, I find that all questions relating to this "watershed event" are both material and relevant.

6. Corporate Structure and Division of Responsibility [39] The defendants do not object to questions in this category involving basic corporate information, but they do object to questions which exceed that, such as questions seeking to determine which individual attended specific meetings or who authorized the capital to launch Premplus. [40] I agree with the defendants. This action lies solely against corporate entities. While questions addressing the corporate connection between the defendants are appropriate, the degree of detail the plaintiff seeks is beyond what could be found to be material and relevant.

7. Codes of Employee Conduct [41] The plaintiff argues that questions in this area are relevant to the standard of care the defendants set for themselves. The Ontario Superior Court of Justice found the employee code of conduct was potentially relevant to the standard of care or to punitive damages in Andersen v. St. Jude Medical Inc., [2006] O.T.C. 795, 33 C.P.C. (6th) 159 at paras. 40 - 41. I fail to appreciate that logic. I find questions in this area are not material or relevant.

8. Sales Information and Promotional Budget [42] The plaintiff argues that sales information and the size of the defendants' promotional budget relate to duty of care. This information is sought to counter a potential argument by the defendants that they could not undertake their own Level 1 randomized study to test the safety of Premarin and Premplus because this study would cost too much. [43] In my view, this question goes beyond what is necessary to address the potential argument. It is appropriate to ask if that is one of the positions the defendants intend to take and if so, seek information about that particular position. The question as it is currently framed is too broad. Disposition [44] The attached Appendices A and B address my disposition on the particular questions for examination in discovery that are in dispute. "Gropper J." Appendix A: Refusals to Questions at the Examination for Discovery of Judith Halmos-Stark November 19-21, 2012 XFD Date Page No. Question No. Question Court's Disposition 1. Nov. 19/12 14 60 "If I read the Food and Drugs Act and if I read the regulations, could I pass your exam?" disallowed -speculative.

2. Nov. 19/12 67 299 "Is that a warning that Premarin plus progestin causes breast cancer?" [CPI for Premarin 1976, Exhibit 1, Tab A2, p. 622] opinion - is it within the witness' expertise?

3. Nov. 19/12 68 302 Not pursuing this refusal 4. Nov. 19/12 78 345 "But having prepared CPIs, does this label warn patients and doctors that estrogen and progestin cause breast cancer?" [Referring to Exhibit 1, Tab A4, Complete Prescribing Information, Premarin] opinion - is it within the witness' expertise?

5. Nov. 19/12 90 396-397 "..4.2 The possible risk of breast cancer induced by ERTs? And the answer from the committee in italics is: " The committee did not believe that there was adequate data to enable them to answer this question ." "So let's say you open up your file on the first day after the merger and you see this in the file in 1993 is that relevant information to you?" [Referring to Internal correspondence dated July 11, 1991, Exhibit 1, A11, p.6] opinion - is it within the witness' expertise?

6. Nov. 19/12 99 432-433 The first paragraph reads: "...Due to the potential for lack of efficacy and for increased risk of endometrial hyperplasia and cancer, the continued marketing of the current generic conjugated estrogens in Canada is a potential health hazard for thousands of women. This should be suspended immediately by the Health Protection Branch by cancellation of all their drug identification numbers until generic conjugated estrogen tablet manufacturers submit satisfactory data in support of the safety and effectiveness of their products..." As a regulatory professional, do you agree with that statement? [Referring to Exhibit 1, A12, last page "Conclusion"] opinion - is it within witness's expertise?

7. Nov. 19/12 115 503 "Did Wyeth Canada ever submit a new drug submission for conjugated estrogen products, including Premarin or Premplus, which included those indications, lowering lipid metabolism or providing cardiovascular effects?" [Referring to Exhibit 1, Tab A18, p.4: PFI00018582/3] allowed - goes to breach of duty.

8. Nov. 19/12 116 508 Not pursuing this refusal 9. Nov. 19/12 125 548 Not pursuing this refusal 10. Nov. 19/12 143-144 632 "Was it appropriate for Wyeth Canada to wait four years to update its Premarin label consistent with this International Corporate Direction Circular?" [Referring to Exhibit 1, Tab A24, Internal correspondence from Michael Krieg dated March 13, 1996 and Exhibit 1, Tab A17: International Corporate Direction Circular dated November 25, 1992] opinion - is it within the witness' expertise?

11. Nov. 19/12 148 655 Do you agree with me, Ms. Halmos-Stark that a drug company should ensure that CPI is updated in a timely manner?" opinion - is it within the witness' expertise?

12. Nov. 19/12 152 671 "Did the work of the ad hoc advisory committee prevent Wyeth-Ayerst Canada from updating its CPI with regards to breast cancer? allowed - factual question.

13. Nov. 19/12 181 800 Not pursuing this refusal 14. Nov. 19/12 185-186 813-815 "If Wyeth-Ayerst had asked Health Canada to approve an indication for Premarin as a treatment for cardiovascular protective effects, would that have changed the status of Premarin?" opinion - is it within the witness' expertise?

15. Nov. 19/12 187 820 Not pursuing this refusal 16. Nov. 19/12 190 826 /827 Not pursuing this refusal 17. Nov. 20/12 273 273 "The label for Premarin, when you helped draft it, is it intended to cover all foreseeable reasonable uses of Premarin?" opinion - is it within witness's expertise?

18. Nov. 20/12 291 349 Not pursuing this refusal 19. Nov. 20/12 292 351 Not pursuing this refusal 20. Nov. 20/12 313 455 "And if the medical affairs department said this is an important or significant article, would there be any steps that regulatory affairs would take?" [Referring to Exhibit 4, Tab D6: HRT Media Updated January 26, 2000] opinion - is it within the witness' expertise?

21. Nov. 20/12 318-320 479 "So the question, I suppose the question to the witness is, this arm of the WHI study which came out in April of 2000 dealing with cardiovascular benefits, did you notify Health Canada of the particular study?" [Reference to Exhibit 4, Tab D8: Sales Bulletin, HRT Media Update] allowed - goes to breach of duty.

22. Nov. 20/12 347 597 "And the footnote then reads: .These protective effects are not supported in the Premarin product monograph Did you approve this ad?" [Referring to Exhibit 4, Tab E6, Living with Estrogen Loss] allowed - goes to breach of duty.

23. Nov. 20/12 353-354 625-627 Who made the suggestion to the footnote disclaimer as described in tab 6:" These protective effects are not supported by the product monographs of any HRT products " [Referring to Exhibit 4 Tab 6, Living with Estrogen Loss, p.2 footnote] allowed - goes to breach of duty.

24. Nov. 20/12 356 634 Not pursuing this refusal 25. Nov. 20/12 357 638 "I would ask Wyeth Canada to confirm if this letter was received by Wyeth Canada and when?" [Exhibit 4, Tab F8 letter dated August 14, 2000 to Ray Chepesiuk to from Ann Sztuke-Fourier, Re: Premarin Poster- Unapproved Claims] allowed.

26. Nov. 20/12 359 647 Not pursuing this refusal 27. Nov. 21/12 453-454 1868 "If you had come up with language much closer to what Health Canada ultimately approved, would you have gotten your label approved quicker?" disallowed - speculation.

28. Nov. 21/12 484 1992 From a regulatory perspective, should the decision on whether to send a "Dear Healthcare Provider" letter to Canadian medical professionals depend upon whether or not the medical community " doesn't seem too upset" or not? opinion - is it within the witness' expertise?

29. Nov. 21/12 529 2158 From a regulatory perspective should a drug company not perform a study because the results could be embarrassing? opinion - is it within the witness' expertise?

30. Nov. 21/12 530 2160 "..from a regulatory perspective, should a study not be done because it would be very costly?" opinion - is it within the witness' expertise?

31. Nov. 21/12 545 2229 Not pursuing this refusal 32. Nov. 21/12 552-553 2265 "From a regulatory perspective, if an opinion could be formed by an advisory committee in 1995 that more studies are needed based on medical literature that dates back from 1993, and then into the 1980s, could the view that more studies are needed have been formed sooner than 1995?" opinion - is it within the witness' expertise? Appendix B: Questions Taken Under Advisement the at Examination for Discovery of Judith Halmos-Stark November 19-21, 2012 XFD Date Page No. Question No. Question Court's Disposition 1. Nov.19/12 19 78 "What I am looking for is the articles, if they still exist. So, my last question is well, just to clarify: So, when did she write them? Did she write them in her official capacity? And if she wrote them in her official capacity, if she signed them, you know, "Wyeth Canada Inc." to produce them." [Referring to articles in the International Regulatory Affairs Journal] allowed - if question is confined to the period of her employment with Wyeth.

2. Nov.19/12 35 154 "Could I have a list of any officers, directors or employees of Wyeth Canada Holdings Inc? And I would make the same request for Wyeth Canada Partnership. And that would be either during the class period or at present." disallowed - irrelevant.

3. Nov.19/12 57-58 254 "Were there any efforts to preserve documents within Wyeth Canada Inc. following the commencement and the service of this lawsuit?" allowed.

4. Nov.19/12 66 297 "Could you verify if the CPI for 1976 is available, and if it is, please produce it." allowed.

5. Nov.19/12 70 308 "I would like to know how that language got into the label." [language relating to endometrial cancer and estrogen referring to CPI for Premarin 1977, Exhibit 1, Tab A 3] allowed.

6. Nov.19/12 71 313 " I would like any documents sent to Health Canada that relate to this change in the label. And I would like to know who those persons were that submitted those changes in the label to Health Canada, whether they are still alive, whether they are still with Wyeth-Ayerst, now Pfizer Canada." [relating to CPI for Premarin 1977, Exhibit 1, Tab A3] allowed.

7. Nov.19/12 74 329 "I will ask counsel for copies of any submissions to Health Canada in 1982, updating the CPI. Those have not been produced." allowed.

8. Nov.21/12 426 1766 "I would like to know if prescriptions dropped after the...for both those drugs, if they dropped after the WHI was announced. If they dropped after he labels were changed in November/December 2003. So that's one request. " [relating to Premarin and Premplus] allowed.

9. Nov.21/12 462-464 1909 "And he was attending this meeting to assist the team at this meeting instead of having a regulatory affairs person from Wyeth-Ayerst Canada at the meeting, is that correct? [referring to Justin Victoria] So on this basis of this document, the only regulatory affairs professional that attended this meeting was an American? [Referring to document Exhibit 9, Tab K3-K4 fax dated August 9, 1996 re: Premarin Meeting Vancouver] disallowed.

10. Nov.21/12 465 1913 Confirmation of authenticity of document at Exhibit 9, Tab K 5 [Document entitled Internal correspondence, International Regulatory Affairs dated August 13, 1996] allowed.

11. Nov.21/12 466 1917 "I read this document as a parent company finance committee authorizes the capital for the launch of Premplus. And so I'm asking if that understanding of this document is the correct one. And further to that, that Wyeth-Ayerst Canada Inc. would not have its own independent pool of capital with which to launch Premplus." disallowed - irrelevant.

12. Nov.21/12 466 1918 "Tab 8 is, again the Vancouver meeting so same request." Confirmation of authenticity of document at Exhibit 9, Tab K8. disallowed.

13. Nov.21/12 492 2022-2027 "Was this proposal requested by any of the defendants? Was it received by any of the defendants? And to what degree was this program implemented, if at all?" [relating to Exhibit 9 Tab M6, titled Premarin Publication Program Submitted by Design Write dated May 15, 1997] allowed.

14. Nov.21/12 495-496 2034 -2037 "At tab N1, my request to Counsel is, I read this document as saying that in 2001 Premarin Family sales globally were $2 billion U.S. of which Canada comprised $23 million U.S. I would like confirmation as to whether those numbers are accurate?" [Exhibit 9, Tab N1] disallowed.

15. Nov.21/12 497-498 2045 "I would ask, Counsel, then, just to confirm that there was a Premarin Club that Wyeth Canada was a member of, and that in terms of the dates that they met." disallowed.

16. Nov.21/12 500 2052 Confirmation of authenticity of the document at Exhibit 9, Tab N3 [Email dated 4/6/98 from Elizabeth Margles relating to Premarin Canada Committee] allowed.

17. Nov.21/12 502 2063 Confirmation of authenticity of the document at Exhibit 9, Tab N4 [Internal Correspondence dated April 22, 1996 re: Premarin Tablets -Canada CPI] allowed.

18. Nov.21/12 503- 504 2070 Confirmation that the authenticity of document at Exhibit 9, Tab N6. That this is what was transcribed, and then this is what was transcribed on that date. [Document is a voicemail to Carol Jane from Elizabeth Margoles dated 12/4/97] allowed.

19. Nov.21/12 505 2074 Confirmation as to why the document Exhibit 9, Tab N7 does not appear in Wyeth-Ayerst Canada's productions. [Document dated December 6, 1988 refers to an attachment which is a letter from HPB to Ayerst concerning a submission they made covering the Premarin and Provera study] allowed.

20. Nov.21/12 505-506 2076 Confirmation to the authenticity of Exhibit 9, Tab N8 that it was sent on the date it says it was sent. [email from Elizabeth Margles dated 12/8/97, re: Premarin Canada Update] allowed.

21. Nov.21/12 510 2093 Confirmation as to the authenticity of Exhibit 9, Tab N13 [Memo dated June 18, 1996 to Judith Halmos-Stark from Chace R. Wayne] allowed.

22. Nov.21/12 512 2102 Confirmation that the meeting referred to in Exhibit 9, Tab N14 actually happened and that the attendees are who are listed on the memo. [meeting on June 20, 1996 of the Premarin Canada committee] disallowed.

23. Nov.21/12 514-515 2111 Confirmation of the authenticity of the document at Exhibit 9, Tab N16. [Internal Correspondence dated May 6, 1996 Re: Premarin Tablets- Canada CPI Second Draft] allowed.

24. Nov.21/12 515 2114 Request for a copy of document at Exhibit 9, Tab N17 without redactions [Document entitled "Wyeth North America Organization Charts"] disallowed.

25. Nov.21/12 516 2115 Request for an organizational chart that you have or can generate. [relating to the corporate structure to the various defendants] disallowed.

26. Nov.21/12 516 2116 Confirmation of the authenticity of documents at Exhibit 9, Tabs N18 and N19. [Memorandum dated November 25, 1997 re: Premarin Public Affairs/Advocacy and an email dated November 14, 1997 re: Premarin Public Affairs-Canada, respectively] allowed.

27. Nov.21/12 519 2130 Confirmation of the authenticity of the document at Exhibit 9, Tab N23 [Email from Elizabeth Margles, re: Premarin Canada dated 9/24/98] allowed.

28. Nov.21/12 520 2133-2134 "What was the budget for promotional spending by the defendants for the Premarin/Premplus market in Canada at this time? The years 2000 and 2001 [Referring to Exhibit 9, Tab N24: Total Promotional Spending for HRT Market by Country"] disallowed.

29. Nov.21/12 523 2143 A request to confirm authenticity of documents in Exhibit 9, N25-31. allowed.

30. Nov.21/12 524-525 2147 A request to make best efforts to confirm authenticity of documents in Exhibit 10. [US Trial transcripts] allowed.

31. Nov.21/12 528 2155 Is document, Exhibit 10, Tab O2, prepared by an M. Stern or someone else working for Ayerst Canada? [Internal correspondence dated June 14, 1976 re: Estrogens and Breast Cancer] allowed.

32. Nov.21/12 535 2186 Did anyone from Ayerst Canada attend this clinical symposium? [Exhibit 10, Tab O13, regarding a medical conference in Estoril, Portugal on June 27 to 29, 1989.] disallowed.

33. Nov.21/12 537 2193 Request to make best efforts to determine the authenticity of the documents in Exhibit 11, Tab O 57 to Tab O78. allowed.

34. Nov. 21/12 561 2295 Request for production of any code of employee conduct that would have applied during the class period. disallowed.