April 23, 2021
In Akebia Therapeutics v. Fibrogen ,2021 FC 171, the Plaintiffs, Akebia Therapeutics and Otsuks Canada, brought a motion seeking leave pursuant to Rule 279 of the Federal Court Rules to file four brief expert reports in reply to the responding expert reports filed by the defendant, Fibrogen.
Despite Fibrogen’s position that the materials were repetitive, argumentative and ought to have been anticipated and led in chief, Justice Barnes ruled in favour of the Plaintiffs, and admitted all four expert reports into evidence.
Justice Barnes began his reasons, which were given orally from the bench, by noting that the onus is on the Plaintiffs as the moving parties to establish that their reports constitute proper reply in the context of the applicable legal principles.
With respect to the four reports at issue, Justice Barnes assessed the admissibility of each report individually:
Report of Dr. Haase: Dr. Haase’s reply report dealt with the issue of the use of cobalt chloride to treat anemia. Justice Barnes acknowledged the possibility that the initial reports had already sufficiently framed this issue to permit it to be fully canvassed in testimony at trial, however, he nonetheless admitted the evidence on the view that the evidence was proper.
Report of Dr. Fishwick: Justice Barnes struck portions of Dr. Fishwick’s reply report on the grounds of relevance, as well as failing to be proper evidence. However, he found several other parts of the report as being “unobjectionable” and admitted the evidence. Justice Barnes explained that Dr. Fishwick was entitled to defend the reliability of his work from comments made by the expert for Fibrogen.
Report of Dr. Ward: Dr. Ward’s reply report addressed what appeared to be an important assertion made by Dr. Gazaryan, an expert for Fibrogen, that “the key to these patents is the pharmacaphore”. Justice Barnes noted that the science surrounding this issue was difficult to understand, and that there was no sound basis for Dr. Ward to anticipate Dr. Gazaryan’s criticism of his evidence. In Dr. Ward’s reply evidence, he explained in detail why Dr. Gazaryan’s opinion was scientifically unsound and unsupported by the patents. Justice Barnes admitted Dr. Ward’s evidence on the basis that to deny Dr. Ward a full reply to Dr. Gazaryan would potentially create a significant evidentiary imbalance.
Report of Dr. Semenza: Dr. Semenza’s reply report addressed unresolved questions raised by Dr. Ivan, one of Fibrogen’s experts, concerning the mechanism of action through which HIF-PH degraded HIF-alpha. Justice Barnes found that Dr. Semenza’s report added much needed clarity to a new point raised by Dr. Ivan, and given the unanticipated nature of Dr. Ivan’s comments, he admitted the evidence. Justice Barnes found that Dr. Semenza’s reply would assist the Court in understanding a “very, very complicated science”.
As Justice Barnes noted, the decision to admit reply evidence will substantially turn on the Court’s view of what best serves the interests of justice and whether the evidence assists the Court in making its decision on the merits, subject, of course, to the avoidance of undue prejudice to a defendant. He also noted that, where the issues presented in reply concern complex issues of science, the discretion to admit such evidence may be enlarged.
Authors: Awale Deria and Sam Galway