Date: 20001220
Docket: A-155-99
OTTAWA, Ontario, Wednesday, December 20, 2000.
CORAM: STONE J.A.
ISAAC J.A.
SHARLOW J.A.
BETWEEN:
HOFFMANN-LA ROCHE LIMITED/HOFFMANN-LA ROCHE LIMITEE
(Formerly BOEHRINGER MANNHEIM CANADA LTD./LTEE)
Appellant
- and -
KIRIN-AMGEN INC.
and JANSSEN-ORTHO INC.
Respondents
JUDGMENT
The appeal is dismissed with costs.
"A.J. Stone"
J.A.
Date: 20001220
Docket: A-155-99
CORAM: STONE J.A.
ISAAC J.A.
SHARLOW J.A.
BETWEEN:
HOFFMANN-LA ROCHE LIMITED/HOFFMANN-LA ROCHE LIMITEE
(Formerly BOEHRINGER MANNHEIM CANADA LTD./LTEE)
Appellant
- and -
KIRIN-AMGEN INC.
and JANSSEN-ORTHO INC.
Respondents
Heard at Toronto, Ontario, on Wednesday, November 8, 2000 and Thursday, November 9, 2000.
Judgment rendered at Ottawa, Ontario, on Wednesday, December 20, 2000.
REASONS FOR JUDGMENT BY: STONE J.A.
CONCURRED IN BY: ISAAC J.A.
SHARLOW J.A.
Date: 20001220
Docket: A-155-99
CORAM: STONE J.A.
ISAAC J.A.
SHARLOW J.A.
BETWEEN:
HOFFMANN-LA ROCHE LIMITED/HOFFMANN-LA ROCHE LIMITEE
(Formerly BOEHRINGER MANNHEIM CANADA LTD./LTEE)
Appellant
- and -
KIRIN-AMGEN INC.
and JANSSEN-ORTHO INC.
Respondents
REASONS FOR JUDGMENT
STONE J.A.
[1] The dispute in this appeal centres on a claim in Canadian Patent No. 1,339,047 granted on May 27, 1997 ("the Patent"). The Patent relates to human erythropoietin ("EPO" or "uEPO"), a glycoprotein produced by the kidneys that stimulates the bone marrow to produce red blood cells or their precursors. The subject matter of the Patent is a biologically manufactured recombinant EPO ("rhEPO") similar in structure and function to that produced by the kidneys. The respondents have been marketing their recombinant EPO product EPREX in Canada since 1990.
[2] At trial, the respondents alleged that the appellant had infringed the Patent by distributing their own recombinant product RECORMON in Canada. The appellant defended on grounds of invalidity and non-infringement at a trial extending over five days of court time. Each side called two expert witnesses, and the respondents called three fact witnesses. The Trial Judge, Reed J., found the Patent to be valid and infringed in reasons which are fully reported at (1999), 87 C.P.R. (3d) 1. She enjoined the appellant from infringing the Patent, ordered that its product be delivered up to the respondents, awarded damages or an accounting for profit and allowed interest on the monetary award.
[3] The resolution of the dispute hinges on the construction of Claim 1 of the Patent, which reads:
| 1. A glycoprotein product having a primary structural conformation of human erythropoietin as set forth in Figs. 5A to 5E, said product possessing the in vivo biological property of causing bone marrow cells to increase production of reticulocytes and red blood cells and having a higher molecular weight on SDS-PAGE than human urinary EPO. |
Only the italicized element is at issue in this appeal.
[4] In her reasons, Reed J. explained that SDS-PAGE is a process used "to determine the apparent molecular weight of proteins". As she stated at paragraphs 14-15:
| [14] ...SDS-PAGE is a detergent used to coat (saturate) the protein samples to be tested so that they are covered with negative electrical charges. The saturation with SDS renders the proteins' own original positive or negative charges unimportant. The denaturing process also unfolds the protein molecule so that its bundled shape does not affect its movement through an electrical field. SDS does not bind to the carbohydrate branches. |
| [15] Electrophoresis is a process in which the protein samples are placed in an electrically charged field and travel through a medium (in this case a polyacrylamide gel) between the two oppositely charged sides of the field (in this case from the top of the apparatus, which is negatively charged, towards the bottom, which is positively charged). The speed with which the proteins move through the gel (their mobility) will be determined by their size. Smaller proteins will move faster than larger proteins. SDS-PAGE is thus used to estimate the size of the protein, which is an analogue to its molecular weight. The molecular weight is determined by the position of the protein in the gel after a period of time of exposure to the electrical field. |
Reed J. went on to explain that once the SDS-PAGE test is run, the results may be recorded in a visible form. One method of recording the results of the test is called "Western Blot".
At paragraph 17, Reed J. explained this method:
| [17] Another way of making a visual record of the test results is called Western Blot. It is even more sensitive than dye or silver. After SDS-PAGE is run, the proteins on the gel are transferred to a chemically reactive membrane. The proteins bind to this membrane in the same relative positions that they occupied in the original SDS-PAGE gel. Then antibodies that recognize and bind to the protein are applied to the membrane. The location of the binding of theses antibodies to the protein is recorded. |
There is no issue with respect to the accuracy of either of these findings.
[5] At trial and in this Court, the appellant argued that the Patent was invalid for insufficiency because it failed to comply with the requirements of subsection 27(3) of the Patent Act, as amended by S.C. 1993, c. 15, s. 31. That subsection reads in part:
| 27. (3) The specification of an invention must |
| a) correctly and fully describe the invention and its operation or use as contemplated by the inventor; |
| b) set out clearly the various steps in a process, or the method of constructing, making, compounding or using a machine, manufacture or composition of matter, in such full, clear, concise and exact terms as to enable any person skilled in the art or science to which it pertains, or with which it is most closely connected, to make, construct, compound or use it; |
This language is for the most part identical with former subsection 34(1) of the Patent Act which, as we shall see, is much discussed in the decided cases.
[6] The appellant submits that subsection 27(3) requires that a patent meet two conditions: it must describe the invention and it must outline how the invention is to be put into operation. Failure to meet the first requirement renders a patent invalid for ambiguity; failure to meet the second renders it invalid for insufficiency. Such failures leave the appellant in the position of not being able to determine the nature of the invention in respect of which the patentee claims exclusive rights. In other words, the appellant maintains that the Patent fails to teach a person skilled in the art or science how to make use of the Patent and how to avoid infringement.
[7] In attacking Claim 1 for insufficiency, the appellant focusses on the phrase "human urinary EPO". The appellant makes two arguments. First, the phrase is unclear because, on the evidence, there is no standard "human urinary EPO" with a recognized, uniform molecular weight. On the contrary, the molecular weight of "human urinary EPO" varies from individual to individual. Because of this variation a person skilled in the art or science would not know which sort of "human urinary EPO" to compare with the molecular weight of a recombinant EPO on the SDS-PAGE test in order to determine whether its product possessed a "higher molecular weight" than "human urinary EPO". Moreover, the appellant maintains that Reed J. erred in finding that the phrase "human urinary EPO" in Claim 1 refers to "pooled-source" human urinary EPO and, further, that she erred in preferring the evidence of the respondents' expert witnesses on this point to that of the appellant's expert witnesses. Second, even accepting the "human urinary EPO" intended by Claim 1 is "pooled-source" human urinary EPO, the Claim is still invalid for insufficiency. It is an accepted fact from the evidence at trial that human urinary EPO does not have a single molecular weight. Rather, human urinary EPO shows a range of molecular weights when measured on SDS-PAGE. According to the appellant, recombinant EPOs show weights falling along the same range as that of human urinary EPO. Therefore, the comparative analysis contemplated by Claim 1 does not make sense.
[8] At trial, the respondents' infringement claim relied on the results of an experiment conducted by them in New Jersey in August 1998. Photographs of the Western Blot images resulting from that experiment showed that the appellant's product had a higher molecular weight than two different samples of human urinary EPO. The appellant challenged the reliability of the New Jersey experiment and argued that it should be ignored. However, Reed J. was of the view that none of the criticisms raised by the appellant's experts undercut the validity of the test results. Furthermore, she held that independent experiments undertaken by the appellant were unconvincing since they used recombinant EPO products produced by the appellant for distribution outside of Canada and not the product distributed in Canada.
Issues
[9] There are six issues in this appeal. They are:
| · Did the Trial Judge err in holding that Claim 1 was to be construed as of the date of issue of the Patent? |
| · Did the Trial Judge err in holding that the "human urinary EPO" set out in Claim 1 was sufficiently described in that claim and the Patent so as to enable the Patent to be understood and the alleged invention to be practised or avoided, as the case may be? |
| · Did the Trial Judge err in holding that sufficient human urinary EPO was available so as to enable a person skilled in the art to determine infringement? |
| · Did the Trial Judge err in finding that the respondents had proved that the appellants infringed the claim at issue? |
| · Did the Trial Judge err in failing to grant the appellant's counter-claim in providing a declaration of non-infringement at least as to recombinant EPO having the same or lesser molecular weight than human urinary EPO when measured by SDS-PAGE? |
| · Did the Trial Judge err in making findings as she did as to the credibility of all four expert witness and, in particular, the witnesses Dr. Sytkowski and Dr. Haselbeck? |
Date of construction
[10] The appellant submits that Reed J. erred in construing the Patent as of the date it was issued, May 27, 1997, rather than the date it was applied for, December 12, 1984. I agree that the decided cases on the point are not altogether in harmony. In choosing the date of issuance, Reed J. relied upon the following statement of Desjardins J.A., for the Court, in AlliedSignal Inc. v. Du Pont Canada Inc. (1995), 61 C.P.R. (3d) 417 (FCA), at 426:
| As a prefatory remark, it ought to be pointed out that a patent is to be construed at the date it is issued. Any doubt about such date is conclusively settled by reference to the French version of a statement made to that effect by Pigeon J. in [1976] 1 S.C.R. 555">Burton Parsons Chemicals Inc. v. Hewlett-Packard (Canada), [1976] 1 S.C.R. 555 at p. 560, 17 C.P.R. (2d) 97 at p. 101, 54 D.L.R. (3d) 711 (where the words "la date de la délivrance du brevet" are used). |
[11] The appellant maintains, however, that the balance of authority favours the date of filing as the date as of which a patent is to be construed and, in any event, that the passage quoted from the decision in AlliedSignal, supra, was merely obiter dicta. However that may be, it is to be noted that Desjardins J.A. relied upon a statement of Pigeon J. in Burton Parsons, supra, at 560. In my view, we must follow the guidance of this latter case unless it has been affected by a subsequent decision of the Supreme Court of Canada. The appellant submits that the statement of Pigeon J. relied upon by Desjardins J.A. must now be viewed in the light of the Supreme Court's decision in Pioneer Hi-Bred Ltd. v. Canada (Commissioner of Patents), [1989] 1 S.C.R. 1623, where Lamer J. (as he then was) stated at 1638:
| The description must be such as to enable a person skilled in the art or the field of the invention to produce it using only the instructions contained in the disclosure (Pigeon J. in [1976] 1 S.C.R. 555">Burton Parsons Chemicals Inc. v. Hewlett-Packard (Canada) Ltd., [1976] 1 S.C.R. 555, at p. 563; [1979] 2 S.C.R. 1108">Monsanto Co. v. Commissioner of Patents, [1979] 2 S.C.R. 1108, at p. 1113) and once the monopoly period is over, to use the invention as successfully as the inventor could at the time of his application (Minerals Separation [North American Corp. v. Noranda Mines Ltd.], supra [[1947] Ex. C.R. 306], at p. 316). |
The appellant submits that, since a patent must allow a person skilled in the particular art or science to "use the invention as successfully as the inventor could at the time of his invention", the only appropriate time for construing the Patent is at the time of the application.
[12] In my view, even standing alone this case may not be clear authority for the assertion that a patent is to be construed at the time of filing but only that the inventor would be able to do so at that time of filing. In any event, while Lamer J. referred to Burton Parsons, supra, he did not indicate any disagreement with the statement of Pigeon J. and, indeed, made no reference to that statement. Instead, he relied on a view expressed by Thorson P. in Minerals Separation North American Corp. v. Noranda Mines Ltd., [1947] Ex. C.R. 306, at 316. It is useful therefore to examine the full context in which the statement appears in the judgment of Pigeon J., at 560 where he said:
| ...What must be ascertained is what the whole meant at the date of the patent to a person skilled in the art. In Minerals Separation North American Corporation v. Noranda Mines Ltd., Lord Reid said (at p. 92): |
| This claim is attacked on several grounds. The first attack is directed against the phrase "an alkaline xanthate". This phrase is crucial because, so far as this claim is concerned, the inventor only claims a monopoly if the process described is carried on with an alkaline xanthate: if it is carried on with a xanthate not alkaline there is no infringement of this claim. It is therefore necessary to consider what this phrase would have meant at the date of the patent to the notional addressee of the specification, a person skilled in the art of froth flotation. (Italics supplied) |
In my view, it seems improbable that in Pioneer Hi-Bred, supra, the Supreme Court intended to depart from Burton Parsons on the point without signalling a clear intention of doing so.
Sufficiency
[13] The requirements of former subsection 34(1) of the Patent Act and the case law were commented upon by Lamer J. in Pioneer Hi-Bred, supra, at 1637-1638, where he stated:
| In summary, the Patent Act requires that the applicant file a specification including disclosure and claims (Consolboard Inc., supra, at 520). Canadian courts have stated in a number of cases the test to be applied in determining whether disclosure is complete. The applicant must disclose everything that is essential for the invention to function properly. To be complete, it must meet two conditions: it must describe the invention and define the way it is produced or built (Thorson P. in Minerals Separation North American Corp. v. Noranda Mines Ltd., [1947] Ex. C.R. 306, at p. 316). The applicant must define the nature of the invention and describe how it is put into operation. A failure to meet the first condition would invalidate the application for ambiguity, while a failure to meet the second invalidates it for insufficiency. |
[14] The appellant maintains that Reed J. erred in determining that "human urinary EPO" was sufficiently described and in rejecting the argument that this could not be so because each person's EPO is different and because different EPO's have different molecular weights. Since Claim 1 does not specify which sort of human urinary EPO is the subject of the comparison, a skilled reader would never be in the position of understanding the Patent and the invention to be avoided or practised. The expert evidence on the point conflicted.
[15] In the end, Reed J. found that human urinary EPO to be used in the SDS-PAGE test for comparative analysis with recombinant EPO was to be drawn from a pooled-source of human urinary EPO rather than from a particular individual, and that this is disclosed at page 64 of the Patent. Evidence to that effect was presented by Dr. Sawyer, an expert called by the respondents, and was accepted by Reed J. Dr. Sawyer based his evidence on two considerations: (1) the teaching of the disclosure at page 64 of the Patent which made reference to "pooled-source human urinary extract" and (2) the fact that a person skilled in the art or science would realize that only "pooled-source" human urinary EPO would be appropriate for the comparison. In support of his second point, Dr. Sawyer noted that the scientific literature regularly referred to "human urinary EPO" as EPO extracted from a pool of patients suffering from aplastic anemia. On the basis of this evidence, Reed J. found that this pooled-source human urinary EPO is what is referred to in Claim 1.
[16] In my view this finding was open to the Trial Judge on the evidence before her. Moreover, it has been held that construction of a patent turns heavily on the evidence accepted at trial of a person skilled in the art: Proctor & Gamble Inc. v. Unilever PLC (1995), 61 C.P.R. (3d) 499 (FCA), at 506. The case law also makes clear that a patent should be construed with "a mind willing to understand": Lister v. Norton Brothers and Co. (1886), 3 R.P.C. 197, at 203 (Ch.D.), [1934] S.C.R. 94">Baldwin International Radio Company of Canada, Limited v. Western Electric Co. Inc., [1934] S.C.R. 94, at 105-106, as well as "with a judicial anxiety to support a really useful invention": [1981] 1 S.C.R. 504">Consolboard Inc. v. MacMillan Bloedel (Saskatchewan) Ltd., [1981] 1 S.C.R. 504, at 521.
[17] The appellant also argues that Claim 1 is invalid because human urinary EPO and recombinant EPO show the same range of molecular weights on SDS-PAGE. It is accepted that human urinary EPO is heterogeneous in that it does not have a single number representing its molecular weight and, indeed, that human urinary EPO has a range of molecular weights. I do not see that such characteristic is fatal to the respondents' case and that it warrants interference with the judgment at trial. As Reed J. found, at paragraph 21 of her reasons:
| The Patent does not recommend the use of SDS-PAGE for determining a numerical value for the respective molecular weights of uEPO and rhEPO. It requires an assessment of the comparative molecular weights of two substances. |
I am in respectful agreement with that view. My appreciation of the evidence is that the SDS-PAGE test is intended to do precisely that, by requiring that the two substances be compared side-by-side in order to actually determine which of the two possesses the higher molecular weight. If this is correct, then it would not seem to matter that different human urinary EPO's may exhibit different molecular weights. If upon comparison with a recombinant EPO the latter one possessed a higher molecular weight than the human urinary EPO with which it was being compared, the recombinant would run afoul of Claim 1; if it did not, the Patent would not be infringed.
Availability of human urinary EPO
[18] I turn now to the issue of availability of human urinary EPO. This bears to an extent on the issue of the appropriate construction date discussed above. As Reed J. found, despite the difficulty of finding a supply, the scientific literature disclosed an effective purification process as early as 1977. Further, she found that human urinary EPO was commercially available as early as 1983-1984. Reed J. also noted that only a very small amount of human urinary EPO was needed to conduct the necessary comparison required by the Patent. Therefore, after considering the evidence, Reed J. found, at paragraph 34 of her reasons, that "uEPO was available to someone needing it for the purposes of comparing it to recombinant EPO both at the date of issue and the date of application". A review of the material evidence has not persuaded me that she erred in coming to that conclusion.
[19] Allied to the issue of availability of human urinary EPO was whether the purification process taught in the scientific literature would impact the molecular weight of human urinary EPO and, accordingly, raise a question with respect to the sufficiency of the description in Claim 1. The evidence at trial was conflicting, necessitating a finding by the Trial Judge of which evidence to accept. Reed J. again preferred Dr. Sawyer's evidence which was to the effect that no difficulty would arise for a person skilled in the art or science. In addition, she found that human urinary EPO prepared by the respondents' expert, Dr. Strickland, by following the procedure in the scientific literature and as used in the New Jersey experiment, did not exhibit a different molecular weight.
Infringement
[20] With respect to the issue of infringement, it seems to me that no basis has been shown for interfering with the findings of fact at trial based upon the results of the New Jersey experiment of August 1998, from which Reed J. concluded that the appellant's product did in fact possess a higher molecular weight than that described in Claim 1 and therefore that it infringed the Patent.
[21] In TWR Inc. v. Walbar of Canada Inc. (1991), 39 C.P.R. (3d) 176 (F.C.A.), referring to the Supreme Court's decision in Consolboard, supra, I stated at 190:
| The task of determining whether a claim has been infringed becomes "essentially one of fact": [1981] 1 S.C.R. 504">Consolboard Inc. v. MacMillan Bloedel (Saskatchewan) Ltd. (1981), 56 C.P.R. (2d) 145, 122 D.L.R. (3d) 203, [1981] 1 S.C.R. 504">[1981] 1 S.C.R. 504, per Dickson J. (as he then was), at p. 152. Evidence adduced at trial by way of direct and cross-examination of persons skilled in the art and others, was designed to support the views contended for by both sides. The trial judge chose to accept that which supports the respondent over that of the appellant. This lay within his province as a trial judge even though some of the evidence was documentary and much of the oral testimony was adduced through expert witnesses. His findings are not to be interfered with by this court unless it appears that he made some palpable and overriding error which affected his assessment of the facts: Stein v. The "Kathy K" (1975), 62 D.L.R. (3d) 1, [1976] 2 S.C.R. 802">[1976] 2 S.C.R. 802, 6 N.R. 359; N.V. Bocimar S.A. v. Century Insurance Co. of Canada (1987), 39 D.L.R. (4th) 465, [1987] 1 S.C.R. 1247, 27 C.C.L.I. 51, per Le Dain J., at pp. 468-9. He had advantages that are denied to this court. I can see no basis for interfering with his findings. |
Similarly, in this appeal, the appellant does not identify any palpable and overriding error on the part of Reed. J. that would justify this Court's intervention on this aspect of the case. The appellant's complaint is basically that the Trial Judge preferred the evidence of the respondents' experts over that of their own experts. Absent some clearly ignored or misapprehended evidence, this is not a sound basis for appellate review.
Declaration sought by the appellant
[22] On this appeal for the first time the appellant seeks a declaration to the effect that a recombinant EPO that possesses the same or a lower molecular weight than that described in Claim 1 does not infringe the Patent. The point was not directly raised in the pleadings. A declaration was claimed in paragraph 18(b) of the appellant's Amended Defence and Counterclaim but it was limited to a request that the RECORMON product "does not infringe claim 1" of the Patent. No request was made that any other recombinant EPO product having the same or a lower molecular weight than human urinary EPO did not infringe Claim 1.
[23] The function and importance of pleadings in defining the issues in any litigation has been underlined by the courts: see e.g., In re Robinson's Settlement, Gant v. Hobbs, [1912] 1 Ch. 717 (C.A.), at 728; Esso Petroleum Co. Ltd. v. Southport Corporation, [1956] A.C. 218 (H.L.), at 239; Glisic v. The Queen, [1988] 1 F.C. 731 (C.A.); TWR Inc. v. Walbar of Canada Inc. (1991), 132 N.R. 161 (F.C.A.), at 179; Prêt-à-Porter Orly Ltd. v. Canada (1994), 176 N.R. 149 (F.C.A.). See also DuPont Canada Inc. v. Glopak Inc. (1998), 81 C.P.R. (3d) 44 (F.C.T.D.), at 58-59.
[24] In any event, the appellant is seeking by the requested declaration relief in a vacuum, such that would save from infringement any product that the appellant merely claimed to have the same or a lower molecular weight than human urinary EPO. The respondents accept that theoretically a product having such a weight upon the side-by-side comparison required by the SDS-PAGE test would not infringe Claim 1. Obviously, however, the Court is not in a position in the present litigation to declare that any product that the appellant may now or hereafter possess, other than the one in issue, would not infringe Claim 1 merely on the basis of a broad assertion that a product having the same or a lower molecular weight than human urinary EPO cannot infringe that claim. That a specific product did not infringe Claim 1 is something that would have to be either agreed to by the respondents or determined by a court in the context of an infringement action.
Credibility of expert witnesses
[25] The appellant advances a final argument which concerns the Trial Judge's criticism of its expert witnesses. The appellant called Dr. Sytkowski and Dr. Haselbeck as expert witnesses. In addition to Dr. Sawyer, the respondents called Dr. Strickland. After noting that credibility of the expert witnesses was a very important factor, Reed J. proceeded to make findings of credibility. She found Dr. Sawyer's evidence to be "credible and reliable" and although Dr. Strickland had committed some error in conducting assay tests which he later corrected, she found that this had not cast doubt on the veracity of the corrected result. On the other hand, Dr. Sytkowski was not found to be a credible witness due to what the Trial Judge regarded as "extreme partisanship and lack of veracity". In Reed J.'s view, Dr. Haselbeck's characterization of the relevant literature repeatedly showed that his enthusiasm to support his employer's position "leads him to overstate or misstate the conclusions found therein". She sought to support these various findings by reference to the evidence at trial, as appears at paragraphs 56-63 of her reasons.
[26] As already mentioned, findings of fact lie peculiarly within the province of a trial judge who has the advantages of seeing and hearing the witnesses, and ought not to be disturbed by an appellate court unless the judge committed a palpable and overriding error which affected his or her assessment of the facts: [1976] 2 S.C.R. 802">Stein Estate v. The Ship "Kathy K", [1976] 2 S.C.R. 802. See also, Ship Sir Robert Peel (1880), 4 Asp. M.L.C. 321 (C.A.); Clarke v. Edinburgh and District Tramways Co., [1919] S.C. (H.L.) 35; Ship Hontestroom v. Ship Sagaperack, [1927] A.C. 37 (H.L.); Powell v. Streatham Manor Nursing Home, [1935] A.C. 243 (H.L.); Watt (or Thomas) v. Thomas, [1947] A.C. 484 (H.L.); [1960] S.C.R. 210">Forseth v. Prudential Trust Co., [1960] S.C.R. 210; N.V. Bocimar S.A. v. Century Insurance Co. of Canada, [1987] 1 S.C.R. 1247; Norvel et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114. In Watt, supra, Lord MacMillan noted these advantages, at 490-491 where he stated:
| The appellate court has before it only the printed record of the evidence. Were that the whole evidence it might be said that the appellate judges were entitled and qualified to reach their own conclusion upon the case. But it is only part of the evidence. What is lacking is evidence of the demeanour of the witnesses, their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial. This assistance the trial judge possesses in reaching his conclusion but it is not available to the appellate court. So far as the case stands on paper, it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed the advantages not available to the appellate court, becomes of paramount importance and ought not to be disturbed. |
[27] The appellant contends that the reasons for the adverse findings of credibility in paragraphs 56 to 61 of the Trial Judge's reasons are out of harmony with the evidence or that, in any event, they do not bear directly on the professional opinions expressed by the appellant's experts at trial. Reed J. discounted Dr. Sytkowski's evidence to the effect that he could not see the New Jersey experiment of August 1998 and that he was kept from the room. The evidence of what the witness could or could not see was reviewed by counsel at pages 796-798 and 971-973 of the trial transcript. It would seem there that the witness only claimed that he was unable to see the three samples being loaded into the gel and not that he was unable to see the entire experiment. Even so, the Trial Judge had some difficulty in accepting that Dr. Sytkowski would not have asked the person that was in his line of sight to move out of the way. There was also evidence that Dr. Sytkowski left the room for a time while the gel was run and that he was escorted back to learn the results of the experiment. There seemed to be an absence of evidence that he claimed to have been "kept from the room" during the running of the experiment.
[28] The Trial Judge was also concerned that Dr. Sytkowski was "less than ethical" in 1981 by taking pictures of Dr. Goldwasser's slides at an annual meeting of the American Society of Haematology and by publishing an article which made reference to the slides without attribution to Dr. Goldwasser. Dr. Sytkowski's evidence on the point, appearing at pages 786-788 of the trial transcript, suggests however that in taking the pictures of the slides at an open meeting without the permission of Dr. Goldwasser, he was acting in accordance with accepted practice. He also explained his failure to credit Dr. Goldwasser in the published article from the journal editor's insistence that data published at a public meeting presentation need not be credited and that it was perfectly all right to use the data because it was presented at such a meeting.
[29] Counsel urges in any event that none of the evidence relied upon by the Trial Judge was in any way related to Dr. Sytkowski's professional evidence as a leading scientist in the field with which the case is concerned, and, therefore, that the severity of the Trial Judge's criticisms were unwarranted and have sullied the reputation of a serious scientist.
[30] The Trial Judge found Dr. Haselbeck to have shown "enthusiasm to support his employer's position", which she illustrated by reference to his evidence that human urinary EPO had an approximate molecular weight of about 39,000 daltons. When confronted with evidence that the molecular weight of the protein was "closer to 34,000" daltons, he continued to insist that this meant anything less than 39,000 daltons. Counsel reviewed the evidence relied upon by Dr. Haselbeck in his expert opinion to the effect that human urinary EPO had an apparent molecular weight of around 39,000 daltons. Some of this evidence seemed to suggest that the apparent molecular weight was found by certain scientist to be approximately 39,000 daltons or as low as 34,000 daltons, the weight appearing to vary according to conditions in the gel.
[31] In my view, it would be wrong for this Court to second guess the Trial Judge on her assessment of the witnesses. She had the opportunity of seeing and hearing them during the course of the trial. It was for her, primarily, to assess their veracity and reliability as among themselves. As is not unusual, the task was not an easy one where, as here, the testimony of the expert witnesses on either side was often in conflict in this highly technical piece of litigation. In deciding which of the expert testimony she preferred and which she should discard, she was exercising a function that is unique to a trial judge. Her finding should not lightly be disturbed unless it could be shown that she erred in some egregious way.
[32] It must not be forgotten that Dr. Sytkowski had filed a rebuttal affidavit in which he directed criticism against the manner in which the New Jersey experiment was carried out and where he expressed the opinion that the results were unreliable. Accordingly, the cross-examination to which he was subjected and which formed the basis of Reed J.'s adverse finding of credibility was not completely unrelated to Dr. Sytkowski's professional evidence. A witness, whether of fact or opinion, becomes to an extent "fair game" under cross-examination. It is my view that the cross-examination of Dr. Sytkowski on this particular aspect of the case was quite legitimate and, indeed, was not challenged on the appeal.
[33] I do feel, however, that the Trial Judge's criticism of this witness was stronger than the evidence required. In particular, I am concerned with her view that he somehow engaged in unethical conduct. His evidence on the point, which was not challenged, was that in taking pictures of Dr. Goldwasser's slides at an open meeting he was acting in accordance with accepted practice, and that the failure to credit Dr. Goldwasser in the published article was done at the insistence of the journal editor who thought it unnecessary because Dr. Goldwasser's views were presented in a public forum. It is always to be borne in mind that the criticism of a professional witness by a court, if unfounded, can be severely damaging to his or her reputation. "Good name in man and woman", wrote Shakespeare, "Is the immediate jewel of their souls": Othello, III, iii, 155. Moreover, the precious nature of a good reputation has been emphasized by the highest authority. As Cory J. put it in a different context in Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440, at paragraph 55: "For most, a good reputation is their most highly prized attribute". In my view, that statement can be extended to the criticism of the appellant's expert witness that he somehow engaged in unethical conduct when a reasonable view of the evidence does not support that criticism.
[34] In summary, apart from the Trial Judge's conclusion with respect to Dr. Sytkowski's approach at trial as being "less than ethical" which, as I have indicated, is not supported by the evidence, I can find no warrant for interfering with the Trial Judge's assessment of the expert witnesses. It was for her as trier of fact to make that assessment and, in particular, to prefer the evidence of such of those experts as she found most credible.
Disposition
[35] I would dismiss the appeal with costs.
"A.J. Stone"
J.A.
"I agree.
Julius A. Isaac, J.A."
"I agree.
Karen R. Sharlow, J.A."
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