Lilly entitled to costs for moot ALIMTA prohibition application

On June 7, 2013, Justice Barnes of  the Federal Court of Canada issued his Supplementary Reasons for Judgment dealing with the costs of Lilly’s prohibition application under the Patented Medicines (Notice of Compliance) Regulations that was rendered moot by the withdrawal of Teva’s NOA (see our previous post here). Justice Barnes accepted that Teva had triggered the prohibition application by servings its NOA but held that Lilly’s request for  $18,803.00 for fees and $84,422.00 for disbursements was excessive, holding:

[4]               Notwithstanding the early withdrawal of Teva’s NOA, it was prudent for Lilly to have retained expert witnesses in advance of receiving Teva’s evidence.  The time frames that apply to NOC proceedings are tight and some anticipatory work with experts is to be expected.  However, I have nothing before me to justify a claim to expert fees and expenses approaching $80,000.00.  I have no idea how expert costs of that magnitude could reasonably be generated before any reports were written.  I also have no explanation for why advance meetings with an expert witness in London and Ottawa were considered necessary.  I will allow $12,500.00 for expert costs including related disbursements.