Date: 20090203
Dockets: T-3197-90
T-2624-91
T-2983-93
Citation: 2009 FC 117
Vancouver, British Columbia, February 3, 2009
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
APOTEX
INC. AND NOVOPHARM LTD.
Plaintiffs
and
THE
WELLCOME FOUNDATION LIMITED
Defendant
Court File No. T-2624-91
BETWEEN:
THE WELLCOME FOUNDATION LIMITED and
GLAXO WELLCOME INC.
Plaintiffs
and
INTERPHARM INC. and APOTEX INC. and
ALLEN BARRY SCHECHTMAN
Defendants
Court File No. T-2983-93
BETWEEN:
THE WELLCOME FOUNDATION LIMITED and
GLAXO WELLCOME INC.
Plaintiffs
and
NOVOPHARM LTD.
Defendant
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.
[1]
The
issue on this motion is whether the Wellcome Foundation Limited and Glaxo Wellcome
Inc. (collectively GSK) should be granted leave to file a Further Fresh as
Amended Statement of Issues. GSK submits that the proposed amendments are
proper and necessary and will ensure that the pleadings accurately reflect
those damages that GSK is entitled to recover as a result of the infringement
of its patent.
[2]
Apotex
Inc. (Apotex) and Novopharm Ltd. (Novopharm), collectively referred to in these reasons
as the Respondents, have no objections to some of the amendments sought by
GSK. They take issue with the proposed amendments that they view as constituting
withdrawal of admissions or raising new causes of action.
[3]
For
the reasons that follow, I conclude that the proposed amendments should be
allowed.
Background
[4]
In
1988, GSK was awarded Canadian
Patent No. 1, 238,277 (‘277 Patent) for the use of AZT for the treatment and
prophylaxis of Human Immunodeficiency Virus (HIV) infection. Apotex and
Novopharm instituted an action in 1990 (Court File No. T-3197-90) for a
declaration that the ‘277
Patent
was invalid and that their proposed generic AZT products would not infringe.
[5]
In
1991, GSK commenced an action against Interpharm Inc. (Interpharm), Apotex and
Allen Barry Shechtman, alleging that their proposed products infringed
various claims in the ‘277 Patent
(Docket
No. T-2624-91). For ease of reference, the three defendants will be referred
to as the Apotex Defendants. A similar action for infringement was commenced
against Novopharm in 1993 (Docket No. T-2983-93).
[6]
On
consent of the parties, bifurcation orders were issued in 1994 in the two infringement
actions on the following terms:
That any issue of fact as to
the quantum of damages flowing from, or Defendants’ profits arising from, any
infringement of Plaintiffs’ right in the above-noted action shall be the
subject of a reference after trial under Rule 500 et seq if it then
appears that such issue is required to be decided.
[7]
The
three proceedings were consolidated and heard together. By Judgment dated March 25, 1998,
Justice
Wetston confirmed the validity of many of the claims contained in the ‘277
Patent. He concluded that GSK had the exclusive right to manufacture, construct
and sell pharmaceutical formulations in Canada containing zidovudine for use in the treatment
and prophylaxis of HIV/AIDS. He also held that the Apotex Defendants and Novopharm
had infringed the ‘277 Patent and were enjoined from any other further
infringement. Justice Wetston declined to allow an accounting of profits, being
satisfied that the appropriate relief was damages pursuant to s. 55 of the
Patent Act.
[8]
On October 26, 2000, the Federal Court of Appeal allowed an
appeal with respect to claims not restricted to the use of AZT, but dismissed
the appeals in all other respects. The decision was upheld by the Supreme
Court of Canada on December 5, 2002.
[9]
On November 7, 2003, GSK filed a requisition for a
reference to quantify the damages that they allegedly sustained as a result of
the infringement by the Apotex Defendants and Novopharm. A Statement of Issues
accompanied the requisition, in accordance with Rule 155(2) of the Federal
Courts Rules (FCR). The three general elements to the damage claim by
GSK that are relevant to this motion are the following:
(a) Lost profits claim: GSK claims
lost profits for each unit of Retrovir sales that it alleges it would have made but for
the infringing competition of the Apotex Defendants and Novopharm with their
comparable product.
(b) Price
suppression claim: GSK alleges that, but for the infringing competition of the Apotex
Defendants and Novopharm, it would not have offered rebates and other benefits
to its zidovudine customers, and claims compensation for these rebates. GSK
also claims that, but for the infringing competition, it would have persuaded
the Patented Medicines Pricing Review Board to permit it to raise its prices
for Retrovir, and a whole family of other drug products.
(c)
Claim for lost opportunity to re-invest profits (LORI Claim): GSK
alleges that all of the profits that it would have made, but for the infringing
competition, would have been reinvested in its business. GSK measures the
profitability of its business at approximately 14%, and takes the position that
it would have earned a similar return on all other profits.
[10]
GSK
alleged in its Statement of Issues that it had intended to increase the price
of Retrovir to $1.88 per 100 mg capsule by 1994, and take Consumer Price Index
(CPI) increases thereafter. It also alleged that it had intended to increase
the price of its Retrovir products, (Retrovir 100, Retrovir 300, and the
Retrovir portion of Combivir and Trizivir) and that it would have earned more
on its Retrovir product sales, but that it was unable to do so because of the
infringement.
[11]
By
written Directions dated December 11, 2003, the Chief Justice directed that the
reference be conducted as a specially managed proceeding, reserving to a later
date the appointment of the referee.
[12]
GSK
provided its affidavit of documents in 2004 and produced a number of documents
for the purpose of the damages reference. At Novopharm’s request, GSK also prepared
accounting schedules to breakdown, explain, and list the documentary support
for the damages being claimed in its Statement of Issues (Damages Schedules).
[13]
On
April 6, 2005, GSK brought a motion to amend its Statement of Issues to allege
that it would have increased the price of Retrovir, but for the infringement,
to 1.95 per 100 mg capsule effective January 1, 1993. GSK sought this amendment
and related price amendments based on the affidavit of Peter Dolton, Vice
President of UK Pharma Patents of GlaxoSmithKline Inc. (Dolton’s 2005
Affidavit). At paragraph 14 of his affidavit, Mr. Dolton stated that:
14. GSK
Canada’s proposed amendments arise out of the onerous efforts undertaken by it
in preparing the Damages Schedules detailing the damages claim, which are
appended to the Fresh as Amended Statement of Issues. Additional damages were
recently determined during the process of preparing the Damages Schedules…
[14]
During
cross-examination on his 2005 Affidavit, Mr. Dolton testified that information and
documents had recently come to light. The amendment with
respect to the proposed change in the price of Retrovir was based on discussions with the
people responsible for managing the Retrovir product “who were there at the
time” and those who currently had responsibility for pricing and finance
matters. This led GSK to the conclusion that the original figure of
$1.88 was “not correct” and that the “likely figure” should be $1.95.
[15]
Leave
to file the Fresh as Amended Statement of Issues was ultimately granted by the
Court on August 3, 2005, on consent of all parties.
[16]
The
first round of examinations for discovery of the parties’ representatives commenced
in December 2005, and continued until February 27, 2007. As part of its ongoing
disclosure obligations, GSK provided supplementary productions to the opposing
parties on February 23 and November 23, 2006 (Found Documents).
[17]
Prior
to embarking on the second round of examinations, counsel for GSK gave notice to
Apotex and Novopharm that a further motion to amend would be brought. The proposed amendments
that are at issue in the present motion consist of revisions to the prices GSK
alleges it would have charged for Retrovir and certain drugs containing zidovudine but was unable to do so
as a result of the infringement (2008 Price Amendments), and consequential
amendments to the Damages Schedules. GSK also seeks to add a claim against
Novopharm for a reasonable royalty on export sales (Royalty Amendment).
[18]
The
most contentious allegations, that impact every head of damages claimed by GSK,
are reproduced below.
37. GSK would have increased
the price of RETROVR@ to $1.952.2594 per 100 mg capsule by
January 1, 199312, 2005, but was unable to do so as a result of
the Infringement, as pleaded below. In particular, GSK would have increased
the price of each RETROVIR capsule:
(a) to $1.90 on July 1, 1991;
(b) to $2.10 on July 1, 1992;
(c) to $2.20 on July 1, 1993; and
(d) to $2.2594 on January 12, 2005.
…..
38. In January 1991, Apotex
publicly announced its intention to market zidovudine in Canada.
39. On May 25, 1992, Apotex
received its Notice of Compliance permitting it to market and sell zidovudine
for use in the treatment and prophylaxis of HIV/AIDS…
…
55. GSK would not have frozen the price
of RETROVIR at $1.70 per 100 mg but for the Infringement. If Apotex and
Novopharm had not entered the market, GSK would have made all sales of RETROVIR
from January 1, 1993 until the present time at a price of $1.95July
1, 1991 to June 30, 1992 at a price of $1.90 per 100 mg from July 1, 1992 to
June 30, 1993 at a price of $2.10 per 100 mg, from July 1, 1993 to January 11,
2005 at a price of $2.20 per 100 mg and from January 12, 2005 until at least
December 31, 2009, at a price of at least $2.2594 per 100 mg. GSK was
unable to increase the price of RETROVIR to $1.95 per 100 mg capsuleas
outlined as a result of Infringement.
[19]
Mr.
Dolton was called upon once again by GSK for an affidavit in support its motion
for leave to amend. He deposes that since the preparation of the Damages
Schedules in 2005, GSK continued to investigate its damages claims and, in
particular, its determination of what pricing would have occurred but for the
infringement. He states that based on these investigations, and in particular four
of the Found Documents (GSK Production Nos. 2445, 2446, 2447 and 2402), the
evidence supports a revised pricing of Retrovir, and certain drugs containing zidovudine.
[20]
On
cross-examination,
Mr. Dolton conceded that he had no part in the investigations, other than being
told about them. He also acknowledged there are no documents that pertain
specifically to the revised prices. Counsel for GSK objected to any questions
about the relationship and the arrangements that the investigators had with the
company to provide assistance with the litigation
on the grounds of privilege.
Mr. Dolton also refused to answer questions about who formulated the new theory
of damages, or concerning the circumstances of the amendments and the discovery
of the Found Documents.
[21]
In
response to the motion, Apotex filed the affidavit of Mr. Stephen Cole, a
forensic accountant. Mr. Cole deposes that the proposed amendments reflect at
least 17 direct or consequential changes to GSK’s claim and impact every
schedule and type of claim, increasing the overall size of the claim by
$376,100,000. According to Mr. Cole, GSK has not provided any factual
information that supports the multiple changes to the methodology and factual
assumptions. He also takes issue with GSK’s assertions that the proposed
amendments are minor and do not change the existing claim. Mr. Cole states that,
in the absence of any identification of the documentation that would support
the changes: “a complete review of all of the documents produced by the
Plaintiffs to date, together with a review of all the information provided
during the examinations to date, will be required to attempt to find support
for these changes.”
[22]
On
cross-examination, Mr. Cole conceded that he had not reviewed all of the
documents produced in the litigation or all of the transcripts of examinations
for discovery. He also acknowledged that the Damages Schedules had assisted him
to come to grips with the nature of GSK’s claims.
Analysis
[23]
Before
dealing with the proposed amendments, it is worthwhile to review the nature of
the document for which leave to amend is being sought.
Statement of
Issues
[24]
As
the party initiating the reference, GSK was required, pursuant to Rule 155(2)
of the Federal Courts Rules, to serve and file a Statement of Issues.
Rule 155(2) is silent regarding the form and content of this particular
document, and there is scant jurisprudence on the subject. However, as its name
suggests, the purpose of a Statement of Issues is to identify the factual and legal issues in dispute on the reference. The statement can also
serve to disclose the party’s position on the issues, as well as list any
documents of central importance to the party’s case.
[25]
In Procter
& Gamble v. Calgon Interamerican Corp. (1983), 71 C.P.R. (2d) 130
(F.C.T.D.) (Procter & Gamble), Mr. Justice Patrick Mahoney
considered Rule 500(5) of the Federal Court Rules, C.R.C. 1978, c. 663, the predecessor to Rule
155. Rule 500(5) provided that a party who applied for a reference hearing was
required to furnish a certified copy of the pleadings, the order of reference,
as well as “issues”. In reflecting on what was meant by “issues”, Justice
Mahoney stated that they could be created either by agreement or by a series of
documents similar to the pleadings. He concluded that the documents should
comply with the rules on pleadings “as nearly as may be”.
[26]
Being
a document
in which a claim is defined, a Statement of Issues has the same attributes as a
“pleading” as defined in Rule 2. The rules governing the amendment of
documents should accordingly be applied “as nearly as may be”.
Test on
motion to amend
[27]
The
principles applicable on a motion to amend a pleading are not in dispute. It is
clear from the rules and the law as it has developed that the Court will
consider amendments to pleadings at any time. In Andersen Consulting v.
Canada, [1998] 1 F.C. 60, the Federal Court of Appeal held that in matters
of amendment to pleadings and the withdrawal of admissions, a generous approach
should be taken by the Court. Amendments based on discovery which refocus and
particularize points in controversy are usually considered to facilitate the
trial of an action and to help determine the real points in controversy: Hoechst
Marion Roussel Deutchland GmbH v. Adir et Cie (2000), 190 F.T.R. 233, 2000
CarswellNat 967 (T.D.).
[28]
Leave
may be denied, however, when the amendments at issue withdraw substantial
admissions and result in a radical change in the nature of the questions in
controversy: Merck & Co. Inc. v. Apotex Inc., 2003 FCA 488 (Merck)
at par. 32.
[29]
The
relevant factors in determining whether an amendment would cause prejudice
include the state of the proceedings, the extent to which the amendment could
delay an expeditious hearing on the merits, and the extent to which the
position of the opposite party in its pleadings and arguments would be
undermined by the amendment: Yeager v. Canada (Correctional Services)
(2000), 189 F.T.R. 196, 2000 CarswellNat 711 (T.D.).
2008 Price
Amendments
[30]
The
Respondents have raised a number of objections concerning the 2008 Price
Amendments. In essence, they argue that the proposed amendments are
inconsistent with positions previously taken by GSK and constitute a withdrawal
of admissions, and that complication and prejudice would result if the
amendments are allowed.
[31]
The
Respondents point out that GSK’s price suppression claim has, since its
inception, been premised upon its pricing strategies in the early 1990s and the
actual contemporaneous intentions of the company to increase prices. They
maintain that the 2008 Price Amendments do not merely clarify the issues in
dispute, as alleged by GSK, but instead seek to raise completely new,
speculative price increases that allegedly would have been made but for generic
competition. The Respondents submit that the proposed amendments should not be
allowed because they constitute a withdrawal of admissions and are inconsistent
with admissions made by GSK on the record.
[32]
A
key issue
to be determined is whether the allegations of fact in the Fresh as Amended
Statement of Issues, and more particularly those at paragraphs 37 and 55, as
well as statements made by GSK’s representatives in affidavits and during
examination for discovery, are admissions and whether,
in the circumstances, it is open to GSK to disavow them.
[33]
In
Vancouver Art Metal Works Ltd. v. Minister of National Revenue, (2001)
202 F.T.R. 287 (F.C.), Mr. Justice Francis Muldoon had to determine whether an
admission made during an examination for discovery is defined as
"formal" or "informal" and the subsequent effect of that definition
on the proceedings. He concluded that while a pleading is generally viewed as a
formal admission, an admission should be conclusive with regard to the matters
admitted. In
order words, an admission must also be made for the purpose of dispensing with proof at
trial.
[34]
In
Black’s Law Dictionary, 5th ed. (West Publishing, 1979), an admission is
defined as “the acknowledgment by one party of the truth of some matter alleged
by the opposite party, made in a pleading, the effect of which is to narrow the
area of facts or allegations required to be proved by evidence.” While no
particular form of words need be given, the concession must be clear. In order
for there to be an admission, a statement must be made deliberately by the
party, pleading it as a concession to its opponent.
[35]
The
Respondents have not identified any specific statement made by GSK in their
pleading, or anywhere else on the record, that can be viewed as an
acknowledgement or concession to the Respondents. The Respondents have in fact denied
the damages claimed by GSK in their responding pleadings. They have also vigorously
disputed the methodology and underlying documents used by GSK in calculating
its damages
during the course of examinations for discovery, including GSK`s professed intentions
regarding pricing of its product. In the circumstances, I am not satisfied that
the 2008 Price Amendments constitute a withdrawal of admissions.
[36]
The
Respondents also submit that the 2008 Price Amendments are inconsistent with
the theory of the case GSK has advanced from the
outset. There is no dispute that GSK has changed its position regarding
when and how its damages should assessed; however, a new theory is not, in and
of itself, a bar to an amendment.
[37]
Although
the answers
provided by GSK’s representative during examination for discovery are
considered informal admissions, they can be qualified, enlarged upon, or even
contradicted upon notice to the opposing party. The correction of inaccurate or
deficient answers is specifically contemplated by Rule 245 which provides that
a person who was examined for discovery and who discovers that the answer to a
question in the examination is no longer correct or complete must provide the
corrected or completed information in writing without delay.
[38]
The real
issue and controversy between the parties in this matter is and continues to be
the quantum of damages, albeit based on a different theory and a substantially
increased measure of damages. I would therefore not
dismiss the motion simply because the proposed amendments
are inconsistent with the position previously taken by GSK.
[39]
The
Respondents submit that GSK has filed no substantive evidence or explanation of
any proposed amendments. While I agree that the evidence presented by GSK was
somewhat sparse, it remains that there is sufficient evidence to explain GSK’s change in position. A party seeking an
amendment is not expected to lead evidence to support the facts alleged, and
the responding party cannot successfully oppose an amendment by alleging that
it is not accurate or not supported by the evidence. Where the nature of the
amendments is clear, there is no requirement to plead the evidence by which
those facts are to be proved: Nidek Co. v. Visk
Incorporated, (1996), 72 C.P.R. (3d)
19. The
Court should assume the facts pleaded in the amendment are true: Rolls Royce
plc v. Fitzwilliam (2000), 10 C.P.R. (4th) 1, 2000 CarswellNat
2973 (F.C.T.D.).
[40]
Despite
extensive cross-examination, Mr. Dolton’s evidence remained unshaken that newly
discovered documents had emerged that altered the landscape of GSK’s claim. He
testified at length as to the individuals consulted in respect of the changes,
how the documents referred to in his affidavit relate to and support the “but
for” pricing, and why there are no contemporaneous documents that refer to the
specific prices, given the nature of the “but for” pricing.
[41]
The
Respondents submit that it is both illogical and incomprehensible that 15-year
old documents, recently produced, concerning GSK’s price projections in the
face of generic competition could support a claim that GSK would have charged
even more than is reflected in the documents in the absence of generic
competition. However, cases turning on an assessment of evidence should be
decided at trial after the witnesses have testified and been cross-examined
before the judge who is to rule on the issue of reliability, weight, and
probative value of all of the evidence. The Court must be very certain that
there is no merit to the pleading before it will be disallowed on an
interlocutory motion. In absence of such certainty, I would leave it to the
trial judge to determine whether the evidence supports GSK’s position.
[42]
It
is the interests of justice that an issue ought to be resolved in the forum best
suited to get at the truth of the matter unless the Respondents are now
prejudged in presenting their case on the issue to the extent that it would be
unfair.
[43]
The
Respondents claim prejudice caused by the proposed amendments. It is suggested
there will be a need for further extensive discovery. They also claim that the
amendments will cause further delay in a matter which has already taken far too
long. The Respondents argue these are matters which should be taken into
account and cannot be compensated for by costs.
[44]
I
am not satisfied that there has been undue delay by GSK bearing in mind the
history of the proceedings. The Court ordered back in 1994 that the issues of liability
and damages be determined separately, on consent of the parties. Bifurcation of
the issues effectively postponed, for over a decade, any consideration of GSK’s
claim for damages.
[45]
GSK
set out for the first time the basis of its claim for damages in 2003. While GSK may have
failed to grasp the relevance of the Found Documents, there is nothing to
suggest that its conduct was anything but inadvertent. Voluminous
documentation was exchanged and lengthy examinations for discovery were
conducted by the parties exclusively on the issue of damages. There have been
numerous motions and hearings relating to discovery, and an additional week has
been set aside in March 2009 to deal with interlocutory motions. The parties
have throughout had the benefit of close and active case management.
[46]
There
is no evidence before me that GSK’s amendment will cause any prejudice to the
Respondents that cannot be addressed by an award of costs.
Royalty
Amendment
[47]
Novopharm
opposes the amendment seeking to add a claim against Novopharm for a reasonable
royalty on export sales because the claim is based on material facts that were
not pleaded in the Amended Statement of Claim against it. According to
Novopharm, the alleged exports were not considered during the trial before Justice
Wetston and, as such, should not be permitted to be raised during the Damages
Reference. Novopharm submits that the Royalty Amendment represents a radical
shift in GSK’s case against it that will not only delay the reference, but will
also cause the parties to incur significant additional costs.
[48]
In
my view, the
amendment proposed raises a triable issue that ought to be determined in the interests
of justice. It
is not plain and obvious that the claim for a reasonable royalty is beyond the
ambit of the liability findings of Justice Wetston. Moreover, I am not
satisfied that the claim for a reasonable royalty represents a significant
departure from GSK’s current claim. Of note, at paragraph 95 of the Fresh as Amended
Statement of Issues, GSK alleges that the Respondents, including Novopharm,
have been offering for sale and selling generic zidovudine “in and outside Canada”. GSK has
already claimed the full amount of any lost sales, and seeks to plead, in the
alternative, that it is entitled to a reasonable royalty on sales by Novopharm
in those jurisdictions in which GSK would not have sold zidovudine. While the
Royalty Amendment certainly expands the claim against Novopharm, the substance
of the claim for lost sales remains the same.
[49]
Although
there has been some delay by GSK in seeking the amendment, I am not satisfied that
Novopharm has been
prejudiced to the extent that the amendment should be denied. On the
understanding that Novopharm will be given full opportunity to conduct
discovery of GSK with respect to the Royalty Amendment, the factual issue
raised by the proposed amendment can be fairly and properly litigated and
determined at the reference.
Manner of
Amending
[50]
GSK
seeks to be dispensed from compliance with Rule 79 that requires that
amendments in an amended pleading be underlined. Novopharm submits that GSK
should not be permitted to file a Fresh as Amended pleading because questions
asked and answers given during examinations for discovery will be unintelligible
due to the re-numbering and re-wording of the pleading. In addition, the
referee should be permitted to see and consider the actual and changing nature
of GSK’s damages claim.
[51]
The
underlining
of amendments would no doubt be useful for the parties
and of great assistance to the referee. However, in this particular case, the
sheer number of amendments renders the amended pleading difficult
to read and to understand. Taking into account that an underlined draft of the amended pleading has been filed in
support of this motion, and could easily be reproduced for the purpose of the
reference, I conclude that a leave to file a fresh as amended pleading should
be granted.
Conclusion
[52]
Pleadings should reflect
the real issues between the parties so that a matter can be decided on its
merits and with all issues properly before the court. In Canderel Ltd. v.
Canada, [1994] 1 F.C. 3 (C.A.), Décary, J.A. stated the basic premise as
follows
. . . while it is impossible to enumerate
all the factors that a judge must take into consideration in determining
whether it is just, in a given case, to authorize an amendment, the general
rule is that an amendment should be allowed at any stage of an action for the
purpose of determining the real questions in controversy between the parties,
provided, notably, that the allowance would not result in an injustice to the
other party not capable of being compensated by an award of costs and that it
would serve the interests of justice.
[53]
I
find that there will be no prejudice to the Respondents as a consequence of
these amendments as they have been apprised of them before completion of the
first round of examinations for discovery and further examinations for
discovery are contemplated. In contrast, GSK would be prejudiced if these
amendments are not allowed, since GSK will be prevented from asserting the
proper quantification of damages which it would otherwise be entitled to
assert. The
amendments will also assist the referee in deciding the matters in controversy.
[54]
The
Respondents will be put to additional expense in defending the claim for
damages, chiefly through duplication of effort in preparation for examination
for discovery. The Respondents should accordingly be
compensated for all reasonable costs incurred in re-examining GSK’s
representative for discovery with respect to the 2008 Price
Amendments, such costs to be assessed at the middle of Column IV of Tariff B.
[55]
As
a general rule, a party seeking an amendment should bear the costs,
particularly when the amendments are required due to inadvertence. However, the Respondents resisted
this motion for leave to amend
on the merits, not just as to terms. Since GSK was successful in obtaining the
relief it requested, I conclude that there should be no order of costs of this
motion.
ORDER
THIS
COURT ORDERS that:
1. The
Wellcome
Foundation Limited and Glaxo Wellcome Inc. are granted leave to serve and file a
Further Fresh as Amended Statement of Issues within 7 days of the date of this
Order.
2. Apotex
Inc. and Novopharm Ltd. are entitled to their costs incurred in re-examining
the representative of Wellcome Foundation Limited and Glaxo Wellcome Inc. for discovery with respect to the 2008 Price Amendments, to be assessed
at the middle of Column IV of Tariff B.
3. There
shall be no order as to costs of the motion.
“Roger R. Lafrenière”
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