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Court Says No to Reply Evidence, Yes Please to Prior Art

In another nod to the Supreme Court’s “litigation culture change” in Hryniak, the Federal Court rejected expert reports tendered in a motion to file reply evidence as case-splitting and improper but allowed the filing of documents attached to the reports in Janssen Inc. v. Teva Canada Limited, 2019 FC 1309.

In an action under s. 6(1) of the PM(NOC) Regulations brought by Janssen against Teva for patent infringement, Teva moved to file expert reply reports and amend its pleadings to include prior art documents attached to the reports, citing that Janssen’s responding expert reports raised issues not anticipated when evidence in chief was exchanged.

Rule 274(1) of the Federal Court Rules governs the order in which parties may present evidence. Common law rules of evidence prohibit “case-splitting”, where a plaintiff seeks to tender reply evidence that is merely confirmatory of evidence already adduced in chief. Citing Amgen, the Court stated that “allowing a wide range of evidence could be unfair to a party who relied on opposing evidence in chief to know the case it has to meet. Further, case-splitting could create an unending alternation of successive fragments of the case coming forward.”

The Court summarized the principles that govern reply evidence admissibility as applicable to expert reports (Dow Chemicals) and set out in Halford:

  1. Evidence which is simply confirmatory of evidence already before the court is not to be allowed.
  2. Evidence which is directed to a matter raised for the first time in cross examination and which ought to have been part of the plaintiff’s case in chief is not to be allowed. Any other new matter relevant to a matter in issue, and not simply for the purpose of contradicting a defence witness, may be allowed.
  3. Evidence which is simply a rebuttal of evidence led as part of the defence case and which could have been led in chief is not to be admitted.
  4. Evidence which is excluded because it should have been led as part of the plaintiff’s case in chief will be examined to determine if it should be admitted in the exercise of trial judge’s discretion.

In its application of the above principles, the Court rejected the three expert reply reports adduced by Teva, but allowed prior art documents attached to the reports to be filed under Rule 75 in amended pleadings. The Court noted that “the inclusion of relevant prior art, while late in the day, nevertheless should be considered for the Court to have a complete picture of the state of the art as long as it will not work an injustice on the Plaintiff… this prior art may be contextually relevant for cross-examination of the expert witnesses and for that purpose only should be allowed as an additional amendment”.

While Teva’s motion to file its reply evidence was dismissed, the Court granted its motion to amend its pleadings for “the limited purpose of cross-examination of any expert witness at trial.”

The decision may be found here.