Docket: T-575-15
Citation:
2015 FC 1323
Ottawa, Ontario, November 27, 2015
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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ALCON CANADA INC.,
ALCON LABORATORIES, INC.,
ALCON PHARMACEUTICALS LTD.,
and ALCON RESEARCH, LTD.
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Plaintiffs/
Defendants by Counterclaim
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and
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ACTAVIS PHARMA COMPANY
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Defendant/
Plaintiff by Counterclaim
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ORDER AND REASONS
I.
Overview
[1]
The plaintiffs, Alcon Canada Inc., Alcon
Laboratories, Inc., Alcon Pharmaceuticals Ltd., and Alcon Research, Ltd.
(collectively referred to as Alcon), appeal from an Order of Prothonotary Martha
Milczynski dated September 24, 2015, dismissing Alcon’s motion to strike
certain paragraphs from the Statement of Defence and Counterclaim of the
defendant, Actavis Pharma Company (Actavis).
[2]
The key issues in dispute in this appeal
concern:
i.
the applicable standard of review, and
ii.
whether the Prothonotary erred in dismissing
Alcon’s motion to strike.
[3]
For the reasons set out below, I have concluded
that Alcon’s appeal should be dismissed.
II.
Facts
[4]
This appeal arises in the context of a patent
infringement action by Alcon against Actavis concerning Canadian Patent No.
2,447,924 (the 924 Patent) which covers stable topically administrable
solutions containing approximately 0.17% to 0.62% (w/v) of olopatadine. In its
Statement of Defence and Counterclaim, Actavis raises a number of defences against
the infringement claim and asserts, by way of counterclaim, that the patent in
suit is invalid and further that Actavis is entitled to compensation from Alcon
pursuant to section 8 of the Patented Medicines (Notice of Compliance)
Regulations, SOR/93-133 (the Regulations).
[5]
The paragraphs from the Statement of Defence and
Counterclaim that Alcon seeks to have struck concern alleged anti-competitive
behaviour by Alcon. The paragraphs in issue are as follows:
[From the defence:]
ix. Anti-competitive
behaviour/Ex Turpi Causa
80. In addition, Actavis pleads that
the Plaintiffs are disentitled from recovering damages for infringement of the
924 Patent by virtue of their inequitable conduct. Specifically, the Plaintiffs
engaged in conduct contrary to the common law rules against restraint of trade
and contrary to sections 45 75, 76 and 78 of the Competition Act.
81. In addition to Actavis’ 0.2%
olopatadine product, an Actavis ophthalmic formulation containing 0.1%
olopatadine is available for sale in the Canadian market. The 0.1% olopatadine
product does not infringe the 924 patent.
82. Actavis pleads that the Plaintiffs
conspired to take steps to ensure: (a) that Actavis was unable to sell its
0.1% olopatadine product in the Canadian pharmaceutical market; and
(b) that purchasers and insurers of same purchased its higher priced 0.2%
PATADAY product instead.
83. As the Plaintiffs’ 0.2% PATADAY
sales were the by-product of this inequitable conduct, the Plaintiffs are not
entitled to recover for any putative lost sales said to arise from Actavis’
alleged infringing sales.
84. As the aforesaid inequitable
conduct involved the use of the 924 patent, the Plaintiffs are not entitled to
recover any other measure of infringement damages.
85. In the alternative, Actavis pleads
that the Plaintiffs’ damages should be reduced by the amount it earned from
PATADAY sales as a result of its inequitable conduct.
[From the counterclaim:]
114. Actavis pleads and relies on its
allegations set out in its Statement of Defence under the heading
“Anti-competitive behaviour/Ex Turpi Causa”.
[6]
Essentially, Actavis asserts that Alcon should
be denied damages for infringement of the 924 Patent, either partially or
entirely, because of its alleged inequitable conduct. During the hearing
however, Actavis’ counsel clarified that its assertion is not that Alcon should
be entirely denied its claim for damages simply by virtue of its conduct. I
agree. Among other things, the remedy that Actavis seeks to deny to Alcon is a legal
remedy, whereas an ex turpi causa argument normally can be relied on
only to deny an equitable remedy. Rather, Actavis asserts that Alcon’s
sales of its patented product were improperly increased as a result of its
conduct, thus making its damages from the alleged patent infringement appear
higher than they would have been if Alcon had not engaged in such conduct.
Whether Alcon’s conduct in issue would result in damages being denied entirely (as
asserted in paragraphs 80 to 84 of the Statement of Defence and Counterclaim)
or simply reduced (per paragraph 85) would depend on the extent to which such
conduct could be shown to have affected the amount of any damages. I refer to
this below as Actavis’ characterization of its allegations in issue.
III.
Standard of Review
[7]
The parties are agreed that the Federal Court of
Appeal (FCA) decision in Merck & Co Inc v Apotex Inc, 2003 FCA 488 [Merck],
provides the proper starting point for determining the standard of review to be
applied to the Prothonotary’s decision under appeal in this case. However, the
parties differ on how Merck should be interpreted and applied.
[8]
For the present purposes, it is useful to
examine the decision in Merck. Under the heading “The standard of review”, Justice Robert Décary
(speaking for a 2-1 majority) quoted the FCA’s earlier decision in Canada v
Aqua-Gem Investment Ltd, [1993] 2 F.C. 425 [Aqua-Gem], in which a
majority held that discretionary orders of prothonotaries ought not to be
disturbed on appeal to a judge unless:
a.
they are clearly wrong, in the sense that the
exercise of discretion by the prothonotary was based upon a wrong principle or
upon a misapprehension of the facts, or
b.
they raise questions vital to the final issue of
the case.
[9]
Justice Mark R. MacGuigan, for the majority in Aqua-Gem,
went on to say:
Where such discretionary orders are clearly
wrong in that the prothonotary has fallen into error of law (a concept in which
I include a discretion based upon a wrong principle or upon a misapprehension
of the facts), or where they raise questions vital to the final issue of the
case, a judge ought to exercise his own discretion de novo.
[10]
These extracts from Aqua-Gem were quoted
by Justice Décary at paragraph 17 of Merck. At paragraph 18, Justice
Décary went on to quote Justice MacGuigan explaining that whether a question is
vital to the final issue of the case is to be determined without regard to the
actual answer given by the prothonotary:
[...] It seems to me that a decision which
can thus be either interlocutory or final depending on how it is decided, even
if interlocutory because of the result, must nevertheless be considered vital
to the final resolution of the case. Another way of putting the matter would be
to say that for the test as to relevance to the final issue of the case, the
issue to be decided should be looked to before the question is answered by the
prothonotary, whereas that as to whether it is interlocutory or final (which is
purely a pro forma matter) should be put after the prothonotary's
decision. Any other approach, it seems to me, would reduce the more substantial
question of "vital to the issue of the case" to the merely procedural
issue of interlocutory or final, and preserve all interlocutory rulings from
attack (except in relation to errors of law).
[11]
Later, in Peter G. White Management Ltd v
Canada, 2007 FC 686 (Peter G. White), Justice Hugessen, in obiter
dicta at para 2, took the view that Aqua-Gem “makes it quite clear that it is not what was sought but what
was ordered by the prothonotary which must be determinative of the final issues
in order for the judge to be required to undertake de novo review.”
In light of the comments of the majority in Aqua-Gem, and specifically
the quote in the previous paragraph, I do not understand Justice Hugessen’s
position. It appears to be inconsistent with Aqua-Gem.
[12]
The foregoing discussion is important in the
present case because Alcon’s motion sought to strike paragraphs from the
Statement of Defence and Counterclaim (which would therefore have had an effect
that was final if the motion had been granted), but the motion was dismissed
such that its effect was interlocutory (since the allegations in question
remain). If one focuses on what was sought in Alcon’s motion, it is
final. However, if one focuses on the result of the motion, it is
interlocutory.
[13]
Justice Décary continued in Merck:
[19] To avoid the confusion which we have
seen from time to time arising from the wording used by MacGuigan J.A., I think
it is appropriate to slightly reformulate the test for the standard of review.
I will use the occasion to reverse the sequence of the propositions as
originally set out, for the practical reason that a judge should logically
determine first whether the questions are vital to the final issue: it is only
when they are not that the judge effectively needs to engage in the process of
determining whether the orders are clearly wrong. The test would now read:
Discretionary orders of prothonotaries ought
not be disturbed on appeal to a judge unless:
a) the questions raised in the motion are
vital to the final issue of the case, or
b) the orders are clearly wrong, in the
sense that the exercise of discretion by the prothonotary was based upon a
wrong principle or upon a misapprehension of the facts.
[14]
Justice Hugessen, in Peter G. White,
again at para 2 and again in obiter dicta, stated as follows with regard
to Justice Décary’s use of the phrase “the questions
raised in the motion” in the preceding passage:
I am quite sure that he did not mean by that
the motion which was before the prothonotary but rather the motion (see Rule
51) which was before the judge on appeal from the prothonotary. Put briefly,
barring extraordinary circumstances, a decision of a prothonotary not to strike
out a statement of claim is not determinative of any final issue in the case.
In determining the standard of review the focus is on the Order as it was
pronounced, not on what it might have been.
[15]
Again, I do not agree with Justice Hugessen
here. Justice Décary in Merck was reformulating the test set out earlier
in Aqua-Gem by reversing the order of points to be addressed. It is
clear that the “question” referred to in the test as it was formulated in Aqua-Gem
concerned the question before the prothonotary, not the question before the
judge on appeal from the prothonotary. As quoted by Justice Décary in Merck
at para 17, Justice Hugessen said:
[...] discretionary orders of prothonotaries
ought not to be disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the sense
that the exercise of discretion by the prothonotary was based upon a wrong
principle or upon a misapprehension of the facts, or
(b) they raise questions vital to the final
issue of the case.
[16]
Accordingly, it is discretionary orders of
prothonotaries which must raise questions vital to the final issue of the case
in order to disturb them on appeal. Justice Décary makes it clear that this is
what he believes in Merck at para 18. He states that:
[…] [Justice MacGuigan, in Aqua-Gem]
uses the words "they (being the orders) raise questions vital to
the final issue of the case", rather than "they (being the orders) are
vital to the final issue of the case". The emphasis is put on the subject
of the orders, not on their effect. In a case such as the present one, the
question to be asked is whether the proposed amendments are vital in
themselves, whether they be allowed or not. If they are vital, the judge must
exercise his or her discretion de novo.
[Emphasis in original.]
[17]
There is no suggestion in Merck that the
motion referred to in Justice Décary’s reformulation of the Aqua-Gem
test was intended to be the motion on appeal from the prothonotary. I note that
support for my concern about Justice Hugessen’s decision in Peter G. White
is found in the decision of Justice Sandra Simpson in Sanofi-Aventis Canada
Inc v Teva Canada Limited, 2010 FC 1210. After discussing the decision in Peter
G. White, Justice Simpson stated as follows:
[25] However, I have reviewed the Federal
Court of Appeal’s decisions in Aqua-Gem and Merck 2003 and for
the following reasons, have reached a conclusion which is contrary to that
reached by Mr. Justice Hugessen.
[26] In Aqua-Gem, the respondent had
moved to have the case dismissed for want of prosecution. The Prothonotary
dismissed the motion so the action remained extant. While the question before
the Prothonotary was vital in the sense that the action could be dismissed, the
order was not determinative of the final issues. The judge who heard the appeal
from the Prothonotary’s order considered it de novo and the Federal
Court of Appeal upheld this approach. The only possible rationale for this
conclusion, in my view, is that the Court of Appeal considered the issue of
vitality based on the question before the Prothonotary. This conclusion, again
in my view, is borne out by a review of the Decision.
[18]
I have taken note of the several other decisions
of this Court cited by Actavis which have followed Peter G. White and
found that a prothonotary’s decision not to dismiss a claim is not
normally “vital to the final issue of the case”, and I acknowledge that there
appears to be a split within the Federal Court on this issue. However, I prefer
Justice Simpson’s approach. I note also that in both Winnipeg Enterprises Corporation
v Fieldturf (IP) Inc, 2007 FCA 95, and Sanofi-Aventis Canada Inc v
Apotex Inc, 2008 FC 628, the Federal Court found a question to be vital to
the final issue even where the prothonotary whose decision was under review had
refused to strike the action or the paragraphs in issue.
[19]
I conclude therefore that the “question” to be
assessed as to whether it is “vital to the final issue of the case” is the
question that was before the prothonotary.
[20]
Having reached this conclusion, it is now
necessary to consider what makes a question vital. This issue was addressed by
Justice Décary in Merck at paras 22 to 25:
[22] The test of "vitality", if I
am allowed this expression, which was developed in Aqua-Gem, is a
stringent one. The use of the word "vital" is significant. It gives
effect to the intention of Parliament, as so ably described by Isaac C.J. at
pages 454 and 455 of his minority reasons in Aqua-Gem (I pause here to
note that the learned Chief Justice's analysis of the role of the
prothonotaries in the Federal Court remains basically unchallenged in the
majority opinion written by MacGuigan J.A.):
[...] such a standard [of review] is
consistent with the parliamentary intention embodied in section 12 of the
[Federal Court] Act, that the office of prothonotary is intended to promote
"the efficient performance of the work of the Court".
In my respectful view it cannot reasonably
be said that a standard of review which subjects all impugned decisions of
prothonotaries to hearings de novo regardless of the issues involved in
the decision or whether they decide the substantive rights of the parties is
consistent with the statutory objective. Such a standard conserves neither
"judge power" nor "judge time". In every case, it would
oblige the motions judge to re-hear the matter. Furthermore, it would reduce
the office of a prothonotary to that of a preliminary "rest stop"
along the procedural route to a motions judge. I do not think that Parliament
could have intended this result.
[23] One should not, therefore, come too hastily
to the conclusion that a question, however important it might be, is a vital
one. Yet one should remain alert that a vital question not be reviewed de
novo merely because of a natural propensity to defer to prothonotaries in
procedural matters.
[24] In Aqua-Gem, at p. 464,
MacGuigan J.A. distinguished on the one hand between "routine matters of
pleadings", words used by Lord Wright in Evans v. Bartham, [1937] 2
All E.R. 646 (H.L.) at 653, and "a routine amendment to a pleading",
words used by Lacourcière J.A. in Stoicevski v.Casement (1983), 43 O.R.
(2d) 436 (Ont. C.A.) at 438, and, on the other hand, between "questions
vital to the final issue of the case, i.e. to its final resolution".
[25] When is an amendment a routine one as
opposed to a vital one? It would be imprudent to attempt any kind of formal
categorization. It is much preferable to determine the point on a case by case
basis (see Trevor Nicholas Construction Co. v. Canada (Minister for Public
Works), 2003 FCT 255, per O'Keefe J. at para. 7, aff'd 2003 FCA 428). I
note that amendments that would advance additional claims or causes of action
have consistently been found, in the Federal Court of Canada, to be vital for
the purposes of the Aqua-Gem test (see Scannar Industries Inc. et al
v. Minister of National Revenue (1993), 69 F.T.R. 310, Denault J., aff'd
(1994), 172 N.R. 313 (F.C.A.); Trevor Nicholas Construction Co., (supra);
Louis Bull Band v. Canada, 2003 FCT 732 (Snider J.).
[21]
Based on the foregoing passage, the issue of
vitalness should be determined on a case by case basis, but “amendments that would advance additional claims or causes of
action” would normally be considered vital. The reasoning seems to be
that, if an amendment of this kind is not allowed, the party asserting it will
be prevented from asserting the claim or cause of action in question. By the
same reasoning, a motion to strike a distinct claim or cause of action
would likewise normally be considered vital.
[22]
The key in the present case then is to determine
whether the paragraphs sought to be struck in Alcon’s motion concern a distinct
claim or cause of action, or just a “routine matter of pleadings”. Not all
passages that are proposed to be added to or struck from a pleading are vital
to the final issue.
[23]
In Multi Formulations Ltd v Allmax Nutrition
Inc, 2009 FC 897, Justice Robert Barnes considered a number of decisions in
which the question had been found to be vital to the case and focused on the
nature of the allegations that the plaintiffs were seeking to strike:
[8] It seems to me that the above cases
raise very different considerations from those which arise from a decision like
this one, which concerns a refusal to strike out isolated allegations in a
pleading. Other considerations may well apply where the challenged allegations
in a pleading would be fundamental to the prosecution of a claim or, more
obviously, where important or central allegations are struck from a pleading.
In this situation, however, I am not satisfied that the impugned pleadings are
vital to the resolution of the action. Even in the absence of these
allegations, the action would go forward with the Counterclaim and its
principal allegations substantially intact. […]
[24]
So I must determine whether the paragraphs that
Alcon seeks to have struck in the present case are more in the nature of
“isolated allegations” or rather “important or central allegations”. A similar
approach was used in Bristol-Myers Squibb Company v Apotex Inc, 2008 FC
1196 at para 5 [BMS], where Justice Luc Martineau considered whether the
amendments that the defendant there sought to make to its Fourth Amended
Statement of Defence and Counterclaim were “vital amendments” or rather “routine
amendments”.
[25]
There is a temptation in the present case to see
the allegations in question as important, central or vital. For one thing, paragraphs
80 to 85 of Actavis’ defence constitute an entire section thereof under the
heading “Anti-competitive behaviour/Ex Turpi Causa”.
Striking those paragraphs would strike that whole section. Also, finding the question
before the prothonotary to have been vital to the case would seem to be more
consistent with the test she applied in deciding not to strike in the first
place: whether it is plain and obvious that the defence asserted in those
paragraphs is doomed to fail. The reason for this stringent test is that, as
stated frequently in the jurisprudence (e.g. Hunt v Carey Canada Inc,
[1990] 2 S.C.R. 959), a party should not be easily “driven
from the judgment seat”. If we are concerned that a party faces being
driven from the judgment seat in the event that certain paragraphs from a
pleading are excluded, then it seems counter-intuitive that the prothonotary’s
decision to exclude or not exclude those paragraphs is not vital to the case.
[26]
However, I have considered Actavis’
characterization of the paragraphs Alcon seeks to have struck. As discussed
above, Actavis does not assert that Alcon should be denied its claim for
damages simply by virtue of its conduct, but rather that the amount of Alcon’s damages
should be reduced, either partially or entirely, after accounting for the
effect of its allegedly inequitable conduct. Based on this characterization of
Actavis’ pleading, I view the paragraphs that Alcon seeks to have struck more as
isolated allegations not vital to the case since their removal would not
exclude an entire claim or cause of action. This view also covers paragraph 114
in Actavis’ counterclaim which likewise would not exclude an entire claim or
cause of action if it were struck.
[27]
Having determined that the questions raised in
the motion before Prothonotary Milczynski are not vital to the final issue of
the case, then I should not disturb her Order unless it is “clearly wrong, in the sense that the exercise of discretion
by the prothonotary was based upon a wrong principle or upon a misapprehension
of the facts”.
[28]
Before moving on from this section, I wish to
note that, but for Actavis’ characterization of the allegations in issue, I
would be inclined to find that the questions raised are vital to the final issue,
which would lead to a de novo consideration of Alcon’s motion.
IV.
Did the Prothonotary Err in her Decision?
A.
Paragraphs 80 to 85 of Defence
[29]
In arguing that Prothonotary Milczynski erred in
dismissing its motion to strike, Alcon places considerable weight on what it
calls a “bright-line test” set out in Apotex
Inc v Sanofi-Aventis Canada Inc, 2008 FCA 175 [Sanofi FCA], with
regard to assertions of inequitable conduct denying claims for equitable
relief. At para 16 of Sanofi FCA, the Court wrote that “a party claiming equitable relief will not be disentitled to
that relief by virtue of inappropriate conduct on its part unless that conduct
relates directly to the subject matter of that party’s claim and the equitable
relief sought.” Regarding allegations of inequitable conduct by a
plaintiff in a patent infringement action (as in the present case), the FCA
stated at para 18 that it was unable to conclude that such conduct on the part
of the plaintiff “casts a shadow over its rights”
in respect of the patent in suit.
[30]
By reference to decisions of the Federal Court
in Visx Inc v Nidek Co (1994), 58 CPR (3d) 51 [Visx], and BMS,
Alcon argues that, in order for Actavis to avoid having its inequitable conduct
allegations struck, those allegations must cast a shadow either on Alcon’s
title in the 924 Patent or on the question of whether infringement has
occurred. There seems to be no dispute that the inequitable conduct allegations
in the present case do neither of these things, and further that this legal
test as asserted by Alcon is applicable in the right circumstances.
[31]
However, in my view this test is not applicable
in the present case because it concerns disentitlement to equitable
relief. Not only is this explicit in the words of the test, but it makes sense
since it is well-settled that a claim for equitable remedies can be denied when
the party making the claim comes to the Court with unclean hands. The
inequitable conduct allegations contemplated in the test are essentially allegations
that the claiming party has unclean hands.
[32]
As discussed above, the claims sought to be
limited by the inequitable conduct allegations in the present case concern only
damages, which are a legal remedy and not an equitable remedy.
[33]
In any case, a review of Prothonotary
Milczynski’s September 24, 2015 Order indicates clearly that she understood the
legal principle arising from Sanofi FCA. Alcon does not dispute this.
Alcon also does not dispute that Prothonotary Milczynski properly summarized
the inequitable conduct allegations in issue.
[34]
Prothonotary Milczynski concluded saying:
At this juncture, while the Defendants may
have a steep hill to climb, I am not satisfied that they should be denied an
opportunity to advance their defence as drafted or that it is plain and obvious
that they are doomed. It is a unique set of facts that the Defendant seeks to
prove to advance the argument that the availability of a remedy to the
Plaintiffs should be considered in light of the Plaintiffs’ alleged inequitable
conduct concerning their olopatadine products and is or should be tied to
infringement. The issue may remain whether, to the extent they improperly moved
the market to the 0.2% olopatadine product the Plaintiffs ought to be denied a
remedy or have any damages that might be awarded reduced.
[35]
Having considered the relevant facts and the applicable
law, I am unable to conclude that Prothonotary Milczynski was clearly wrong in
her conclusion, either in the sense that she based her decision upon a wrong
principle or that she misunderstood the facts.
[36]
I am also unable to agree with Alcon’s assertion
that Prothonotary Milczynski failed to properly apply the legal test to the
facts. Having properly described the applicable law and the relevant facts, it
was not an error to conclude that, due to the uniqueness of the facts in this
case, it was not plain and obvious that the inequitable conduct allegations
were doomed to fail.
[37]
As discussed above, Actavis has indicated that
its allegations in issue are not intended to deny Alcon damages for
infringement simply because Alcon engaged in the alleged inequitable conduct. Rather,
Actavis’ allegations seek to reduce (or eliminate) those damages to reflect the
effect of any improperly increased sales of Alcon’s patented product. In my
view, this is a reasonable reading of these allegations, and a sound basis for
dismissing Alcon’s motion to strike.
B.
Paragraph 114 of Counterclaim
[38]
Alcon also argues that Prothonotary Milczynski
erred in failing to address its motion to strike paragraph 114 from Actavis’
counterclaim which refers to alleged inequitable conduct. In my view, it was
not necessary for Prothonotary Milczynski to make separate reference to that
paragraph, as her reasoning for refusing to strike the inequitable conduct
defence applied equally to the counterclaim.
[39]
Alcon argues that its alleged inequitable
conduct could not affect the amount of compensation to which Actavis could be
entitled under section 8 of the Regulations. Alcon argues that the
compensation that can be awarded under section 8 cannot be more than the loss
actually suffered by Actavis during the relevant period. Therefore, no conduct
by Alcon could have the effect of increasing the compensation to which Actavis
may be entitled beyond the amount of its actual loss.
[40]
Actavis notes that subsection 8(5) of the Regulations
contemplates taking into account inequitable conduct by either side. It
provides:
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8. (5) In assessing the amount of
compensation the court shall take into account all matters that it considers
relevant to the assessment of the amount, including any conduct of the
first or second person which contributed to delay the disposition of the
application under subsection 6(1).
[Emphasis
added.]
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8. (5)
Pour déterminer le montant de l’indemnité à accorder, le tribunal tient
compte des facteurs qu’il juge pertinents à cette fin, y compris, le cas
échéant, la conduite de la première personne ou de la seconde personne
qui a contribué à retarder le règlement de la demande visée au paragraphe
6(1).
[Mon soulignement.]
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[41]
Moreover, during the hearing of the present
motion, Actavis’ counsel acknowledged that its allegation does not seek
compensation beyond the amount of its actual loss. Actavis argues that it is
not plain and obvious that inequitable conduct on the part of the “first person”
in a claim under section 8 of the Regulations can never be relevant. I
agree.
[42]
Before concluding, I note that my decision is
based on Actavis’ characterization of its inequitable conduct allegations and
its acknowledgement that it does not seek section 8 compensation beyond its
actual loss. My decision might have been different but for this
characterization and acknowledgement.
V.
Conclusion
[43]
For the foregoing reasons, I will dismiss
Alcon’s appeal and maintain Prothonotary Milczynski’s September 24, 2015 Order,
with costs of the present appeal to Actavis.
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