Abbott Laboratories et al. v. Canada (Minister of Health) et al., (2006) 289 F.T.R. 123 (FC)

• Judge: O'Keefe, J.
• Court: Federal Court (Canada)
• Case Date: October 24, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2006), 289 F.T.R. 123 (FC);2006 FC 340

Abbott Lab. v. Can. (2006), 289 F.T.R. 123 (FC)

MLB headnote and full text

Temp. Cite: [2006] F.T.R. TBEd. JN.002

Abbott Laboratories and Abbott Laboratories, Limited (applicants) v. The Minister of Health and Apotex Inc. (respondents)

(T-1847-03; 2006 FC 340)

Indexed As: Abbott Laboratories et al. v. Canada (Minister of Health) et al.

Federal Court

O'Keefe, J.

March 15, 2006.

Summary:

Abbott Laboratories moved for an order disqualifying Dr. Dunitz from appearing as a witness for Apotex Inc. and striking out his evidence from the record.

The Federal Court allowed the motion.

Evidence - Topic 7162

Opinion evidence - Prohibited opinions - Where expert previously retained by opposite party - Apotex Inc. served upon Abbott Laboratories a Notice of Allegation (NOA) alleging invalidity of Abbott's patent in respect of clarithromycin - As a result, Abbott identified Dr. Dunitz as a potential expert witness - Dr. Dunitz and the senior members of Abbott's Canadian litigation team held a teleconference call - Dr. Dunitz signed a consultancy agreement which required him to keep the matters discussed confidential - Apotex served Abbott with a second NOA alleging non-infringement of Abbott's patent - When Apotex filed its expert affidavits in support of its second NOA, one of the affidavits was the affidavit of Dr. Dunitz - Abbott moved for an order disqualifying Dr. Dunitz from appearing as a witness for Apotex and striking out his evidence from the record - The Federal Court allowed the motion - Dr. Dunitz received confidential information relating to patent construction, legal strategy to defend the allegations against the patent and legal strategy involving clarithromycin - Some of the issues in dispute in the first NOA were also raised in the second NOA - There was a relationship between Abbott's retaining of Dr. Dunitz and issues in dispute in the second NOA - There was a risk that the confidential information would be disclosed - There was also a risk of prejudice to Abbott as Abbott's legal strategy was disclosed.

Cases Noticed:

Abbott Laboratories et al. v. Canada (Minister of Health) et al., [2006] F.T.R. Uned. 19; 2006 FC 76, refd to. [para. 15].

MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241, refd to. [para. 17].

Burgess v. Wu, [2003] O.T.C. 1047; 68 O.R.(3d) 710 (Sup. Ct.), refd to. [para. 26].

Counsel:

Steven G. Mason and Aaron Sawchuk, for the applicants;

Kent E. Thomson and Matthew Milne-Smith, for the respondent, Apotex Inc.

Solicitors of Record:

McCarthy Tétrault LLP, Toronto, Ontario, for the applicants;

Davies Ward Phillips & Vineberg LLP, Toronto, Ontario, for the respondent, Apotex Inc.;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, The Minister of Health.

This motion was heard on October 24, 2005, at Toronto, Ontario, by O'Keefe, J., of the Federal Court, who delivered the following judgment on March 15, 2006.