Eli Lilly alleged that gemcitabine made in China and imported into Canada by Hospira infringes Eli Lilly’s patent for an intermediate process step in the manufacture of gemcitabine. Prothonotary Tabib and Mr. Justice Lemieux had ordered Hospira to provide further and better production of documents including parts of Hospira’s Drug Master File.

At the Federal Court of Appeal (“FCA”) hearing, Hospira challenged Justice Lemieux’ decision upholding Prothonotary Tabib’s Order because the Order was partially based on evidence of an “in-house” Lilly expert (which Prothonotary Tabib had found to be reliable and credible). The FCA held, in dismissing Hospira’s appeal, that lack of independence and lack of impartiality are different allegations. That an expert is an employee of a party is not a sufficient ground alone to justify excluding his or her evidence unless it can be shown that the expert has failed to be impartial.

The full text of the decision can be found at: http://decisions.fca-caf.gc.ca/en/2010/2010fca282/2010fca282.html