Teva Canada Limited v. Pfizer Canada Inc.

Parties

Party arguments

Applicant

Plaintiff (Teva) argued it is entitled to damages and that the court should adopt specific factual findings for the but-for world and damages calculation: Liability Period August 26, 2010 to February 14, 2013; Teva/Ratiopharm could have launched at that time; market size and generic shares should follow Hollis' reports; Pfizer would not have launched GenMed; Mylan would not be an authorized generic; no other generics would have entered; no formulary listings outside Quebec; pricing at 75% of Lyrica outside Quebec and 60% in Quebec; trade spend 35%; specified accounting assumptions and pipefill adjustments as per Hollis and the Court.

Respondent

Defendants (Pfizer and Warner-Lambert) contested aspects of the hypothetical market and damages methodology, arguing alternative launch scenarios (including authorized generic arrangements), different market entry by competitors, different pricing and trade spend assumptions, and differing accounting adjustments; they disputed the proposed reliance on Hollis' reports for all market-size and share parameters.

Legal principles

1. 01

   Common law principles of damages (but-for causation) and this Court's Reasons for Judgment

   Damages for wrongful exclusion from a market are assessed by constructing a reliable but-for market and quantifying loss through admissible evidence

2. 02

   Hollis reports and this Court's Reasons for Judgment (confidential and public)

   Expert market reports may be adopted by the Court where reliable and applicable to the hypothetical world

3. 03

   Federal Court procedural authority and this Judgment

   Court may make specific factual findings defining parameters for quantitative damages calculations and remain seized to supervise completion

Court disposition

Plaintiff entitled to damages; Court set detailed findings and parameters for damages calculation and remains seized to conclude final calculations; costs to be determined after submissions.

• The Plaintiff is entitled to damages to be calculated based on the Court's findings and any agreed items.
• Findings for calculation include: (a) Liability Period August 26, 2010 to February 14, 2013; (b) overall pregabalin market and generic portion to be calculated based on Hollis' reports; (c) Teva's generic market share to be based on Hollis' reports and the Court's conclusions that Pfizer would not have launched GenMed during the Liability Period, Mylan would not be an authorized generic nor would any other generic be an authorized generic, and no other generic would have entered during the Liability Period; (d) Neither Ratiopharm nor Teva would have listed pregabalin on any formulary outside Quebec; (e) Pricing for pregabalin outside Quebec at 75% of the Lyrica price and 60% in Quebec; (f) Trade spend at 35%; (g) accounting assumptions including no inspection costs, specified API cost per kg, no adjustments for recipe costs and API quantities; (h) pipefill adjustment in accordance with Hollis' report as clarified by the Court; (i) the agreed items in paragraph 313 of the Reasons for Judgment are Court findings.
• The Court shall remain seized until final damages calculations are agreed or settled by the Court, to be concluded within six months from the date of Judgment as may be varied by the Court.
• Parties may request the Court's assistance to settle matters during the final calculation process.
• The Plaintiff shall have costs to be determined following submissions from the parties.