COURT FILE NO.: CV-11-420115
DATE: 20190426
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
APOTEX INC.
Plaintiff
Harry Radomski, Nando De Luca and Jerry Topolski, for the Plaintiff
– and –
ELI LILLY AND COMPANY, ELI LILLY KINSALE LIMITED, LILLY DEL CARIBE, INC., LILLY S.A., ELI LILLY EXPORT S.A., AND ELI LILLY CANADA INC.
Defendants
Marc Richard, Richard Dearden, and Cole Meagher, for the Defendants
HEARD at Toronto: April 25, 2019
F.L. MYERS J.
TRIAL MANAGEMENT DIRECTIONS
[1] I have been case managing this action. It is scheduled to go to trial on liability alone for ten days commencing May 21, 2019. That is a Tuesday. The Monday is Victoria Day. So there are currently nine days available. The trial judge will be able to work with counsel to schedule the tenth day if necessary.
[2] Examinations in Chief will be in writing. Apotex will deliver its witnesses’ sworn affidavits by May 3, 2019. Eli Lilly will advise Apotex by May 7, 2019 of the identities of the witnesses whose affidavits it will be delivering in response and it will deliver it responding affidavits by May 13, 2019. Reply testimony, if any, will be scheduled by the trial judge.
[3] Witnesses whose affidavits have been delivered will be produced for cross-examination. The parties may wish to have up to 15 minutes to warm-up the witness in chief.
[4] All timing and scheduling set out in this direction is subject to the trial judge’s overriding discretion.
[5] The parties will exchange and file written opening statements of no more than 30 pages in length by noon on May 16 2019.
[6] Apotex will advise Eli Lilly of the portions of the transcripts of examinations for discovery that it intends to submit as read-ins by May 8, 2019. Eli Lilly will advise Apotex of its read-ins by May 16, 2019. Each side will advise the other of any follow-up read-ins that they say are required to fairly complete the other side’s read-ins by May 21, 2019. Each side’s read-ins will be provided to the judge in a bound volume that can be marked as an exhibit if the judge chooses to avoid taking the time to read the excepts aloud.
[7] The parties are working on an agreed statement of facts and should prepare an agreed chronology and glossary to be filed before the trial commences.
[8] Opening may take one-half to a full day depending on the detail and whether the trial judge chooses to spend time working through the regulatory scheme and any points of law before hearing evidence. Counsel should be prepared to start examining witnesses on the first day of trial.
[9] Counsel anticipate the examination of Apotex’s fact witnesses: Watson, Fahner, Mehes, and Ems will take two to two and one-half days. Apotex has a lengthy list of witnesses who are from the Eli Lilly side whom Apotex may want to call. But the need to call these witnesses depends on whether the parties are able to agree on historical facts which, in the main, do not appear to be disputed. I encourage the parties to settle these points and to deal with the trial judge prior to the trial on any residual points concerning the availability of these witnesses as necessary.
[10] Both sides propose to call an expert. Apotex may be objecting to the Eli Lilly expert witness. That should be raised with the trial judge in advance of the trial. There is also an issue as to which expert witness should testify first. This too is for the trial judge.
[11] Assuming for scheduling purposes that both experts testify, counsel estimate that cross-examination of Apotex’s expert will likely take a full day. Cross-examination of Eli Lilly’s expert will take one-half day.
[12] Eli Lilly may not call any witnesses – depending on the content of Apotex’s evidence. It has been directed above to tell Apotex the names of the witnesses that it intends to call by May 7, 2019.
[13] For scheduling purposes, it is anticipated that Eli Lilly could have five fact witnesses: Rassos, Armitage, Rudolph, Bose, and someone from the Canadian Patent office (or something similar). Cross-examination of the first three may take one-half day each. The latter two will likely be quicker.
[14] If everyone testifies at the length anticipated, testimony should be completed on Wednesday May 29, 2019.
[15] That leaves up to three days for argument. Counsel for Eli Lilly asks that if there is to be a third day for reply, then it should not take place remote from the first two days. He submits that it would be unfair to give Aprotex’s lawyers a lengthy time to prepare the reply. Therefore he asks that the full three days for argument be scheduled by the trial judge for a later time when she or he has three days together, It seems to me more likely that the trial judge will direct the full argument to be competed in the two days available that week. But that scheduling will be up to him or her.
[16] Eli Lilly advises that it has raised a constitutional issue as to the applicability of a statute if the court gives it the interpretation proposed by Apotex. Eli Lilly has previously given notice to the attorneys-general of this issue and will do so again before the trial. From their prior experience in his case, counsel expect that it is likely that the A-Gs will decline to attend.
[17] Eli Lilly seeks production of a form that Apotex filed with the government that has a box in which Apotex was invited to state whether it claimed that Eli Lilly’s patent was invalid. If Apotex claimed that the patent was invalid on the form, Eli Lilly will argue that the form is relevant to its limitation period defence. Apotex wants to argue that a form that Eli Lilly says may disclose the date that Apotex first raised the patent invalidity issue is irrelevant. I will resolve this issue summarily in a case conference by telephone that counsel are to arrange with my Assistant forthwith. Any procedural issues can be resolved in a first of multiple calls if necessary. Counsel may, but need not, submit brief briefs, of no more than five pages, with any references to case law hyperlinked, by email the day before the date of the case conference.
[18] Counsel for Eli Lilly also wants to argue that it is entitled to particulars of special damages under Rule 25.06(9)(b). Apotex responds that the upcoming trial is for liability only. It needs to show that it suffered some special damages to make out the tort of public nuisance. However, quantification is for the damages trial it says. I will deal with this issue summarily as well at the same time as the document production issue. Counsel may use some of their five available pages for their brief briefs to deal with this issue as well.
[19] I have noted above that issues exist that are properly directed to the trial judge before the trial commences. The parties advise that there may be other issues that can usefully be raised with the trial judge in advance of the trial.
F.L. MYERS J.
COURT FILE NO.: CV-11-420115
DATE: 20190426
ONTARIO
SUPERIOR COURT OF JUSTICE
APOTEX INC.
Plaintiff
– and –
ELI LILLY AND COMPANY, ELI LILLY KINSALE LIMITED, LILLY DEL CARIBE, INC., LILLY S.A., ELI LILLY EXPORT S.A., AND ELI LILLY CANADA INC.
Defendants
TRIAL MANAGEMENT DIRECTIONS
F.L. MYERS J.
April 26, 2019