Pharmascience Inc. v. Meda AB et al - Nov 17, 2021 - Part 1

3:12PM Nov 17, 2021

Speakers:

MR. de SOUSA

JUSTICE ZINN

MR. SKYODYN

Keywords:

documents

molecules

pharma

friends

witness

launch

science

sales

farmer

data

period

protects

discovery

evidence

prejudice

position

testify

records

market

report

Gonna bring Mr Justice in

recording in progress probably now resumes

are able to hear you

may be on mute

I am Thank you. Did the registry officer speak to you about the request for Mr. Soriano to observe this morning?

He did and that's fine. Mr. sardana was an expert. He's not subject to the order so we're fine.

I just want to make sure you are aware and had no objection so. So do we have any issues we have to deal with before we start with our first witness.

So Miss Baird yesterday did indicate to you when the Glenmark witness issue came up that we would advise the court of our position at this morning so here I am doing that and I. So, in brief, we are maintaining our objection to a witness from Glenmark testifying given the late disclosure of the identity of the witness and the circumstances in which that information was provided to us. We maintain that there's prejudice to the defendants to not have the information about this person until the last minute. We also note that in addition to being advised of the name of the individual yesterday that the defense the sorry, the plaintiff is also sent us two new documents which it says it wants to introduce through this witness and absolutely in our respectful submission of the time for production of documents, has long since passed. And if my friends in fact, were discussing an affidavit with Glenmark, for as long as they say they've been discussing an affidavit with Glenmark, then those documents ought to have been produced to us a long time ago, even if they couldn't figure out exactly who the person was. Going to be, or or we're having other issues with the Glenmark issue. There's no way that you know, on the on the Tuesday of the trial, we're getting new documents, supposedly produced by the plaintiff that in my respectful submission is absolutely not on. So we're maintaining our objection in general due to the predicate prejudice we we object to new productions at this time, and I'm also going to highlight for you just as in that, although we only received the person's name and email address, it appears that this individual is a member of the legal department of Glenmark, who only joined the company last year. And it's possible there are multiple people at Glenmark with the same name, that's a large organization. So I don't think there are any Andrew Skoda's there. I think I'm the only one of those but I don't know anyone I claim mark. So it's possible. There's more than one but certainly the person we were able to find through internet searching appears to be a member of the legal department there and joined the company last year. So in the event that your determination is that they're entitled to call someone, notwithstanding the what we submit is clear and and substantial prejudice was given the timing issues of this third party witness. We're going to have obviously objections as well on on the basis that this person what possible relevant evidence could someone from the legal department give, particularly given they appear to have been at a different company during the relevant time period only joined Glenmark in June of last year. So a whole bunch of problems with respect to this that's why we wanted to raise it with you this morning. And I don't know if Mr. draughty has anything to say about that or whether they're going to leave that for now and just turn up tomorrow. But that's, that is the situation we are in I'm afraid.

Can I ask you the two documents that you speak of? Are they Glenmark documents these documents are they

so one appears to be a purchase order very similar to the various other purchase orders that are already in the case? i They are It looks similar? I don't we don't know why it's only turning up. Now. The other document, so the representation from the plaintiff is that these are documents they received from Glenmark but the other document appears to be a screenshot of a single day in 2014. From what on the face of it might be Glen marks SAP system so but both documents are from many, many years ago, and so there's no reason why if they were relevant, and my friends had access to Glen mark as their supplier for this product, and apparently to discuss the provision of an affidavit why these documents should be turning up. Effectively the day before the witness is going to testify and halfway through trial, one would have thought that in the course of these discussions, if my friends wanted additional materials from Glenmark we'd have them well before now, so I don't know where they came from. But the representation is that they came from Glenmark.

The Gerardi what drove the what's the plaintiffs pleasure on this objection?

So I'll give the document personal. I'll say something quickly about the witness and then about prejudice. The documents of course, I'm an officer of the court. I can tell you, those documents came to us on Monday. And I expect the witness to say that in testimony when he testified tomorrow morning and to explain where they came from, in terms of what they are. There's two of them. One is a screenshot. Not are not something we have access to. It is Glenn marks SAP system showing quantity of API for zolpidem, and this is what we expect the witness to say tomorrow on hand June of 2014. The second document so we don't have access to it not our document came to us the first time Monday, second document Glenmark invoice so what you've seen in this case are sort of crucial commercial invoices have a piece of the puzzle material coming in API from Glenmark. This document is different. I know my friend says they're similar. He thinks they're similar. It's different. It's a Glenmark document. Not something similar to what you've seen. Before. Paula Martinez put in the invoices yesterday from our side. This is something new to us. And that's the invoice from 2015 that 43 kilo order that you heard about. So came to us the first time Monday, provided it to our friends. Those are the documents not something within our control, not something that pharma science has.

So the purchase order has nothing to do with pharma science.

The the document itself is confirming Glenmark shipment, but it resides that document resides at Glenmark not at pharma science, we produce

the Glenmark shipment to who to us and so Pharmascience.

Okay

in terms of the witness My friend is quite correct. It is someone from the legal department and this is this is the problem we've worked on into is that the the people that were responsible at the time appear to have left the company haven't been able to get in touch with them through repeated efforts and so this person who can testify to business records at Glenmark is here to explain those documents which are business records. That's what we expect the testimony to be tomorrow morning.

So his evidence will be restricted to these two documents. At least in chief.

In Chief that is right and he will be explaining what he knows from the business records that he's looked at. That's right. In terms of capacity, what they had on hand and what they could do, and farmer science, his relationship with Glen market he knows from the business records which my friends had full discovery on and that's the pattern of buying API that you saw with Polymer Tina's yesterday not subject any meaningful cross examination on the relationship and the fact that there was an ongoing relationship history of purchase orders placed and product proceed.

You blame Mr. Scogan.

Oh, sorry, man, man. I also sorry, i The one other thing I wanted to say was just about prejudice. And I think prejudice my friends would have if they could say that they're in a position where all of a sudden they've gone through discovery, and it's shockingly appeared to them that farmer science could and would supply the market with the quantities that had on hand. And that's somehow been a reversal of everything that's led us to here today. That would be prejudice. My friends don't have that you're going to hear from a witness later today, which is Mr. Bruno green bow. And he's going to testify to the content of what Pharmascience actually had transmit stock, it's API. It's capsules, it's finished product. And you'll know this Your Honor, from looking at the expert reports that the actual quantity necessary for the but for world is very small and so this idea of ability to supply you know, belt and suspenders we're calling Glenmark. But you're gonna hear from witnesses from pharma science say, quantity was available, it was on hand. And so this isn't a night and day thing where we've gone from having no ability, no product on hand, nothing to put onto the market. This is a situation where there was an ongoing relationship, records of purchase and sale of API, records of farmer signs converting API to finished goods, stock on hand and a very small amount of product necessary to supply what the experts say is the but for world. So I say no prejudice here. not sufficient to sustain an objection to a witness that is coming in tomorrow to speak to business records and practices.

And why couldn't the identity of this witness be provided to the defendants earlier? So if you knew that you needed a witness to go anywhere,

with the identity of the appropriate witness was not known. And so it took some time to resolve if there was someone who could testify to the business records. On my friends, I understand are complaining about the identity of him? And I think that in solve answers the question

you had two years to find somebody

and the person we spoke to previously left the company. And I also expect, if permitted, the legal representative, the person that's speaking tomorrow for Glenmark to explain that that person that Pharmascience spoke to recently has left the company

still alive.

I don't know.

It's just school.

So, apologies. Go ahead.

Wondering if you had any blocks, like

my only point would be to say, I heard Mr. Giraldi and what I assume is going to be part of their closing argument on ability to fly which in my respectful submission is completely irrelevant to the question of prejudice that that we are raising. Yes, we have the ability to examine pharma science and discover pharma science and learn what pharma science knew. But we didn't have the ability to discover Glenmark we haven't seen these additional documents. Pharma signs didn't give us any information about Glenmark or, or in this respect the identity of this person so we could go and figure it out for ourselves it would be completely different if in whatever September of this year when the witness lists were due that they said this will be the person and and we sat on it for six weeks and now we're complaining but I the fact that there's farmers science evidence on these subject matters doesn't address at all the issue that we're we're raising, which is that this is not farmer science. This is a completely different entity and, and our friends are raising this. Well, well after the time. I mean, to your point they could have obtained these documents from Glenmark. If they thought they were relevant at any time in the last four years, and they didn't. So that's the prejudice that I'm talking about if they want to make their case, the case that Mr. Aldys describing from the farm assigns witnesses who have and will testify. Fine that's their right. Our concern is about this coming at us at the last second in, in addition documents and with all due respect to Mr. Jaldi. And the idea that this person who joined the company last year can testify about their business practices and business records and abilities to supply seven years ago when he was from his LinkedIn profile at Linklaters. And with all due respect that that's not on, either, and we're just going to wind up in more trouble. So our objection stands, and I suspect our objection will be stronger if this individual testifies, I don't want this person to waste their time coming if they don't have to, but we're going to have to be very careful from the sounds of it in terms of if this person does testify, what he's able to testify to because in my respectful submission in terms of direct evidence, the answer to that is nothing. And certainly he shouldn't be testifying about things that that we're just getting now. They could have got them years ago, they should have got them years ago, the fact that they didn't get around to getting them into them until Monday is not the consequences of that don't fall on us that the innocent defendants the consequences of that fall on the plaintiff with all due respect.

Just as me I just say one thing that I heard my friend refer to discovery, I may just address that really quickly. Yes, just because there was not a motion for third party discovery of Glenmark and being caught up to date. I wasn't very involved with the discovery process, but I've got a running list of things that my friends did ask him discovery. And I won't bore you with the details, but my friends did ask questions and discovery about Glenmark. And we did provide answers. So I don't think there's any unanswered question and discovery or anything that was refused that that can properly be objected to that's why there was discovery on this topic and I'll just leave it at that.

I'm gonna give some I'm gonna give this some thought. But I will let you know. On the objection to this witness testifying at all, after lunch. Lucky, Mr. Gordon, I don't want us to have him lined up if we're not actually going to hear from him. Even if we do hear from you have the ability to object to any of this evidence that that he may give obviously. But let me give this some time. Think about it, and let you know how much

Thank you. Permit me one moment to make sure there wasn't something else. I feel like there was something else I was supposed to do. So give me one. Maybe James the name on the computer. I just wanted to be Ms. Torrents for a minute and there was some skepticism as to whether that would confuse the group and it appears that it hasn't so just give me one second.

Absolutely.

And maybe just jot this in one administrative thing you had asked yesterday for an updated trial calendar and I'm told that it's been added to the trial toolkit as FC 317. Yes.

D'Souza indicated to me that he had filed it under one of these tabs I can't remember which one now.

It turns out the thing I forgot was the thing I dealt with at the outset was was Mr. Serrano, so we're good. Thank you.

Okay, so you can call your first witness.

I'll be calling is Lynn Raymond.

Good morning

Are you really dark?

Oh, is it still dark? Okay, I'm sorry about that. Um, hang on. Is that a little

better?

If you give me a moment, I'll grab another lamp. Okay. And I'll put it I'm so sorry. Hang on.

I would appreciate if you would do that. Okay. I can barely see

okay, no problem. Just give me one moment. Is that a little better? Not a whole lot. Okay. Hang on a second. Okay. Just I'll get one more lamp Hang on. Sorry about this.

Much better

okay, my apologies. Is that a little clearer?

It is much better. Thank you.

I am so sorry about that. It's really depends on the sunlight here and it's a little cloudy. You know, I'm actually in Toronto.

Okay. Okay.

Let's do the Caesar. Okay. Morning, Miss Raymond.

Good morning.

Are you ready to be sworn in?

I am.

Excellent. I have a note here that you have chosen to make a solemn affirmation. Is that correct? That's correct. Okay, perfect. In that case, I'll ask you to please state your name, your occupation and your professional address, please.

Okay. My name is Lim Raman. I'm the National Sales Director for the OTC division. And my address is 596 pine cone Road in skied Ontario professional address. They that's Yeah, cuz we work out of our homes. Okay.

And that case, um, you solemnly affirm that the evidence to be given by you to the court shall be the truth, the whole truth and nothing but the truth? Please say I do. I do.

Thank you Good morning.

Good morning, Miss Raman. Can you just confirm that you're alone in the room with no documents in front of you?

I guess I'm alone in the room and I don't have any documents in front of me.

Okay. And I heard you say you're currently employed at pharma science and that your current position is National Retail Sales Director for OTC products. That's correct. And what's OTC,

OTC is over the counter

and how long have you held that position

for? I've had that position since April 2020.

And what are your current responsibilities? Currently, the

the sales team across Canada will reports directly into me.

And when did you start working at pharma science?

I started working at pharma science in 1995.

And what were your first responsibilities when you were hired?

I was hired as a sales representative in northern Ontario.

And what sort of things did you do part of that job?

Back then we called on pharmacies, hospitals and some physician offices

as well. And how long did you remain in that position?

I was in that position until 2001.

And where did you move in 2001.

In 2001, I moved to Montreal, our head office as a product manager.

And what were your responsibilities in that position?

In that position? We were responsible for a portfolio of molecules that we would prepare documentation for launches and prepare the sales team.

How long did you hold that position

for for a little over a year?

And what was your next position?

I in 2002, I became the regional sales manager for Ontario.

And what were your responsibilities in that role?

In that role, the Ontario sales team reported directly into me.

And did you help them with anything in relation to customers or clients?

Yes, I was responsible for training the reps and working in the field with them and visiting clients and customers as

well. And what sorts of clients and customers were they at that point?

At that point, it was the retail pharmacies, the independent pharmacies as well as some chains.

Okay. And did you change positions after that roll?

Yes. In 2004, I inherited Atlantic Canada, and I was responsible for Atlantic Canada as well.

As well as Ontario. Yes. Okay. And did your responsibility change in that role?

Same responsibilities, just more coverage.

Okay. So that was 2004 ended your responsibility to positions change after that role?

Yes, in 2014, there was a restructure and then I became the Regional Business Director for Ontario. And in that position, the reps continue to report into me, other retail reps, but I also had the corporate account responsibility. And what are corporate accounts, corporate accounts or the large chain accounts like Shoppers Drug Mart Loblaws, Walmart,

and how does selling with key accounts differ from the retail accounts?

Their volumes are much more significant, and they will select certain molecules and and have a type of formulary listing for their their molecule. So it's a little bit different than selling at the retail firms.

Okay, and what does it mean to have a listing or a formulary? Does that mean

okay, a listing is when the chain of the Shoppers Drug Mart or one of the chain corporate accounts, would select a certain supplier to provide a particular molecule for them so they would make a choice and then keep that you would keep that listing for about a year or two, depending on the the negotiation time.

How does being first to market meaning the first company to be able to offer to deliver a product how does it affect the ability to get that listing

when you're first to market? You have you're the first to approach the corporate accounts and also the independent pharmacies. So you most likely would get the listing for that particular molecule when you are first step first to market so it's, it's quite, it's quite important.

And what about being second to market how does that affect the ability to get that listing

second to market it really depends on the molecule at the time. The size of the market, the the length of time after the launch, but it's it's a little it's a little bit more difficult to displace the first, the first to market

positions after 2014.

Yes, in in 2016, I became the Regional Business Director

for CAC and what did you do in that

role? In that role, it was very similar to to the role in in Ontario I had the retail sales team reporting directly into me,

in fact, and did your position and after 2016

It turned one more time. In 2018, I became the national director of Salesforce effectiveness,

and what were your responsibilities in that role?

In that role, I was responsible for actually training the Regional Business directors that had replaced me across the country.

Okay. So you've had a breadth of experience at pharma science. Can you just summarize for justice in the court and the court the different regions you've had sales exposure to?

Yes, no. Problem. I had direct experience or direct coverage with Ontario, Quebec and Atlantic provinces as well as Manitoba because the sales team reported directly into me and I was responsible for some corporate accounts. And then for Saskatchewan, Alberta, and BC those provinces would have fallen in some of the under the chain stores that I was

responsible for. In your time in the sales department at pharma science who have been your primary competitors.

Number one would have been a protect, followed by Teva and then Santos activist and Milan would have been other competitors as well.

And we're in Canada's as pharma science sell its products. We sell our products right across Canada. Is there any area of Canada or any pharmacy that does not carry at least one pharma science product? At no, no, there isn't. Okay, and how does pharma science get its products into pharmacies?

We use the distribution channel which isn't the wholesalers, so McKesson and KNF, as well as the Shoppers Drug Mart distribution centers

in the years 2015 to 2016. Was there anywhere that another generic company could place their product that pharma science could not?

No, there wouldn't have been?

Okay. I'm going to switch topics now and talk to you about zolpidem. Is that a molecule you're familiar with?

Yes, it is.

And when did you first hear about it?

I first heard about zolpidem in early 2014. And

how or why did you hear about it early?

At the sales and or prior to the sales and marketing meeting or national sales meeting which would have taken place in June of 2014.

And what is the sales and marketing meeting?

That meeting is where sales and marketing or marketing will present to sales on the upcoming launches any molecules to be expected in our pipeline? The June meeting is the beginning of our fiscal year. So that's where they would have given us the pipeline for the year of what molecules we would have been launching

and what kind of information do you generally discuss at that type of meeting?

At that type of meeting? It's some it's high level, depending on the time to launch. So we would be given the molecules the list of molecules that we would be launching. And then if we were preparing we would review TSA information as well. And how

is information on upcoming launches brought to the attention of the sales and marketing meeting personnel?

That would be the national the director of marketing as well as the product managers would would present that information at the sales and marketing meeting. Did zolpidem launch in fiscal year 2014? No, it did not. Were you informed why it was not launched. And we were told that it was delayed due to litigation

was zolpidem discussed at the June 2014 sales and marketing meeting. No, it wasn't discussed with the sales team. When after the fiscal year 2014. Were you told anything about zolpidem again?

About the same time in 2016. It would have been at the probably the prep for our national sales meeting. So February March of 2016.

And what were you told at that prep meeting in advance

that the litigation that was still ongoing but that we should be prepared to launch within fiscal 2017?

Okay, and was zolpidem discussed at the June 2016 sales and marketing meeting?

Yes, it was,

and what role were you in at that time sort of line?

At that time, I was the Regional Business Director for connecting

and what were you responsible for at that point in time?

At that point in time, I was responsible for preparing the sales reps for the launch, as well as working with the team that looked after the corporate accounts in tech.

Did Pharmascience launch so put them in the 2017 fiscal year? Yes, we did. And what did you do to prepare for that launch at the 2016 meeting?

The prep for that meeting? What would be the the sales team would receive the IMS data so TSA reports for their territories, which would give them sales of the brand and the other generic companies that had launched the product as well so that at that point, it was it protects?

You just explain to the court. What PSA data is you've mentioned that a couple times.

Oh, yes, that data is sales five pharmacy of the of certain molecules that are sold by generic companies. And it's broken down by pharmacy by product and by by SKU.

And did you use TSI data for any other launches?

Yes, we would use TSA data for all of our significant launches. And why do you use that sort of data? We use it so we can target the pharmacies that we'd like to go after? For our sales tactics and strategies.

And how does the TSA do to help you to prepare a launch tactic?

You know, in the case of zolpidem, we were targeting the type of friendly accounts. So knowing that it would be easier to displace zolpidem from a non friendly a protects account to a friendly type of account. And we would go after large, large sales of the brand or the generic

prior to 2016. Did you look at the TSA data for zolpidem?

No, we did not. We didn't get close to a three months prior launch. Okay.

Now, how did you use the TSA data in 2016 to prepare your launch strategy,

and in 2016, each of the reps would have the you know the report for their territory, and we targeted the large zolpidem sales or for those pharmacies, as so in that was for most of Canada, and then in Quebec specifically targeted all of the pharmacies for that particular launch.

And were the members of the sales team that you manage familiar with the sort of data?

Yes, they were they're trained on that on that data, when they're hired by their regional business directors,

and who, who is who would be training them on it.

I would have been training them on it and the other regional business directors as well.

Okay, now when you were preparing to launch zolpidem in 2016 Who did you anticipate your competitors would be?

And yeah, a protects and of course, the brand was I was out there as well.

And when in the calendar year, did pharma science launch its product?

We launched in December 2016.

And were there any particular tactics or strategies you employed once you had launched the product?

We did what we did with that particular product because there was medication for insomnia. We also had soap foam, which was another medication for insomnia and because it started with a Z, we call it the Z launch and so kind of bliss merged the two products or blended the two products to launch.

How well did pharmacists do after launch?

We didn't do that well with with zolpidem. And why is that? A protects had launched prior to us in the first position and coming in at a second position for that particular molecule. We weren't able to gain a lot of market share

and what impact if it protects his presence? At any specific things you can think about that impacted your ability to sell zolpidem.

The customer investment was not really a major factor with this particular molecule to kind of displace a protects because it was a smaller market. And so there wasn't a lot of incentive for the the the chains or some of the larger independents to make the switch to farm science product.

How were you kept aware of farmer sciences performance after it launched over them?

And we'd have monthly meetings with with sales and marketing. And at that point, there was a department that would prepare our sales data for us and we would review our market share or sales by units dollars. And we do that on a monthly basis to see how we were tracking.

I'm going to put a document up on the screen and bear with us with technology. It's an Excel sheet that's already been marked as an exhibit. Okay. And I hope we can see you can see this okay, and justice in this is exhibit 25. And this has already been identified in Mark But Miss Raman, I'll just ask you if you recognize this type of data,

and yes, this would be the the raw data that's generated, that IMS would would provide to us for which molecule is this? This is for SOPA dam.

And you're familiar with this type of data? Yes, I am familiar with that type of data. What sort of things do you use it for?

We would use it to see calculate our market share for a particular molecule and see how we were tracking through throughout the year.

Okay. And can you just explain to me just in very general terms if I wanted to use this data to determine how many generic five milligram tablets were sold in the calendar year 2015 How would you generally how would I do that?

Or you would filter on the five milligram so you could you isolate a five milligram and then you would total up the extended units for the total market. So that would include the Valliant from science and a vertex. So then you'd get a total for that. And then you would total up each of the different suppliers and then divide by the total market to get each of their market share.

And I won't go through the exercise but if we just wanted to do three quick ones, just to know the total number of tablets that the generic sold in 2015. Am I right? We would just remove Valliant from the list. There's the manufacturer we just use a biotech and pharma science.

That's correct. You would use the two generic suppliers okay.

And so I'll just ask my colleague just to just we'll get some numbers into the record just as in and we'll move on. I don't propose to do a lot but just for the calendar year 2015. What does the data tell you about the total number of tablets there?

Okay, um, I know that you've totaled it I just because of my screen I can't see maybe we have to scroll down a little bit so I can just see what the total number of units is for that. My apologies.

Okay. I've got a number at the bottom I can see on mine, but perhaps you can't see it on yours. I can't

see I'm so sorry. But Are are you able to give it or do?

I don't think I see it either.

It's Oh, interesting. Okay, well, why don't we do this? Maybe we can just insert a formula really quickly. Okay, there we go. Can you see it

now? There it is. Yes. I can't see it. It's a 900,000

I'm sorry, I still don't see this.

Um,

where should I be? The last nine I have read line 108 111 114.

If you look at the summary below, I'm just underneath them. Like if I because they've made it a little bit small. You see it in very light writing. There's an average and then the count and then the sum. And there's I believe it's 907 100 Yeah. 770,000 units. You see that

just doesn't

know I do not I don't know. Oh, I see your way at the very okay.

Very, it's very

very old. I hear in that very sweet.

Um, it was tough for me to and

then we'll just do Quickly 2016 and 2017 if we can show that you can confirm

Okay, so for this period, it looks like it's a 2 million, a little over 2 million.

But my IC 2,069,030 Yes, thank you. Okay, and that's for 2016 and then for 2017 If we can just do the same

okay, and that looks is that 2.8 202,862,490

is what? Yeah, yes. Yeah. Thank you for your 2017 Okay, thanks. So I won't torture

anyone. I apologies. Fine.

And you were explaining that to calculate market share, if you could just, just verbally how we do we won't do it on here. But how would we calculate market share? Maybe we'll just remove that before that goes on the screen. How would you calculate a market share using that data?

And using that data, you would do the same thing you would calculate the total market and then each of the different companies or you would total their markets as their total units and then you would divide by the by the total market and that would give you your your market share percentage. And that would be the five milligram

Right, right. And then if we wanted to use the five and the 10, they would just be a combination of them and we do the share that way that exactly. You could do it that way as well. So I'll put on the screen now. This is FC 306. And do you recognize this document?

Yes, I do. That's the zolpidem generic market share for the five milligram and the 10 milligram Okay, for what period of time? It's from February 2015. And forgive me but I think it's a January 2019. It's just with my screen. I can't see the very end. I'm just trying to move. There we go. Oh, yes. December 2018.

Great, and I understand that. Well, maybe you can just tell the court how this graph was created.

So it was you would take the data from the the Excel file that we just saw, that has the data then you would put it in the table you would then take the information, the dates, you'd have the dates on the bottom, as well as a percentage of market share. And then you would put it into a graph and we would use this because very visually it's it's, it gives kind of paints the story of the molecule over a period of time.

We've marked that as the next exhibit, just as in

exhibit 92.

Thank you, and I just explained to the court why we see the orange line starting at January 2017.

So that would have been the first time that IMS would have been report would have recorded any sales so that would have been at our launch. For pharma science. That's January 2017. Okay and when did the protects enter according to the IMS data, according to the data, a protected entered in February 2015

And does this accurately depict what you recall in terms of zolpidem sales and share?

Yes it would with with the launch are entering the market and then having a lower market share significantly lower market share than a protects

and how has pharma science done more recently in this opened up market

more recently, we've done that we've done much better starting in about March 2020.

Okay, I'm going to put up on the screen FC 259. Do you recognize this data?

Yes, this this is again, some more raw data of sales for zolpidem, both the the five milligram and the 10 milligram.

Okay. And there's a period of time that this one covers that you can just indicate to the court and we can scroll you need to

show us beginning June 2019 and again

say I heard you say June so maybe we'll just zoom in a little for your

surface in apologies for interrupting this data is for zolpidem but it is not for the relevant time period and so, on that basis. I object to this being put to this witness.

Let's what's the relevance of this? Mr. drolly?

So this is the time period after it's the what do you want to have a discussion with without Miss Raymond?

Let's say can we move the witnessing to room please?

Thank you

Bill. I think we're alone. Right?

I think we are okay.

So just as then, this will be the first of several documents dealing with data this one specific desorb them outside the time period but two year time period but this is Ms. Raymond's way of explaining to the court the dynamic the sales dynamic that's taking place between a protects and pharma science. And there's more coming which is to explain the sales dynamic with other molecules which my friends had discovery on. Bad evidence I suppose from their point of view, but the sales dynamic between farmer science and ape attacks is a critical issue in this case, and we have experts who have filed reports and have dealt with it and have competing strongly competing views on how farm science and ape attacks compete not just with zolpidem, we've seen this in, in the expert reports dealing with other other molecules and what this document shows is that pharma science, we'll see it in a moment I'll have Miss Raymond show you a chart she's helped prepare and it'll show you that farmers science can prevail over a protects in the scope of their market, which my friends say farmer science cannot do. So it's it's relevant to show you that in fact, farmers science has that ability.

Just as in if I may say something in response. The delay period here the but for world is between January 2 2015 to December 6 2016. We also are familiar with the proxy period, which is the experts use in order to make assumptions on what would happen in about four world in the proxy period is from December 7 2016 to November 13 2018. All of the data on this document that we're looking at is post that relevant time period should not go in for that reason, and I hear from my friends that we're going to be going to some other molecules and I will just put on the record right now that I will be objecting to any of that evidence going in for the same reasons that my colleague Mr. Scogan, spoke to you about on Monday. The my friends have taken the position that the information pertaining to other drugs is not relevant to this case, and that the only thing relevant to this case is information on zolpidem and its market and that the times for which are relevant which I just spoke to you about. And so, we're not there yet and it's not on this document that I will fight for you that I'm going to object to to that information going on going in as well.

Yeah, just say something about the time period, just as in Yes. I think I what I heard my friends say as well. It's a very discrete period of time we're dealing with and nothing outside that time period is relevant but we have from our friends and expert report from their accounted who says that we're wrong on customer investment, because it's actually three months past the end of 2018 that needs to be included in terms of how CI customer investment and trade spending in school locally called is calculated so I don't think it's so cut and dry this time period that my friends are putting to you. We're going to hear from record keeper. Next, a salvo who's going to address that portion of Ms. Frederick's report. And this this is the the real world here showing us how to inform the but for world and I'll leave it at that I don't think the time period thing closes us off the delay period proxy period don't limit facts on how pharma science enters and competes with a protects the critical issue in this case,

but doubt So isn't there a big difference? My recollection having read the report is that the the trade spending and I Sorry, I'm gonna probably use that phrase throughout because that's the one I'm most used to. The trade spend is payable three months after the sale has been made. But you have to believe the expert says you have to take that into account when you're looking at the but for World period is not substantially different than telling me that you know you sold 2 million tablets, generic tablets, and 2020, which is so far removed from this period.

No, so that's dealing with the discrete CI and I'll just point out that the three months so even if we don't take three months, if we line it up exactly. It's still covering a period broader than what my friends say. So my friend had it wrote it down November 2018. But what we're looking at records beyond that, even even removing that three months, there's still more overlap. And what we're dealing with here is pharma sciences, ability to compete with AP taxes if we can't show it. I don't know how the court is going to decide it. That the parties are accepting that farmer science goes in earlier than eight attacks. And my friends asked and discovery I can put it on the screen and show it to you questions in discovery. They asked how has farmer science done give us examples. And you know, maybe I'll just put that on the screen with your permission, Your Honor. I was turning into a bigger motion now than a bigger argument than I think it originally was. But we may as well just talk about the other molecules now. I sense and so what I'll do is I'll just show you

can you see that on your screen? Your Honor? Yes. All zoom for you. I'm not saying I can read it, but I can see it. Okay, I'll do my best to help you but we've got so this is discovery evidence from my friends. Pardon me. This is our answers to undertakings, Farmer sciences, answers to undertakings, and you'll see over here, I'll just use the Select tool to highlight it where my friend asked my friends counsel asked where farmer science has entered. The market before he protects for a generic product and maintained a significant portion of market share. I'd like I'd asked you to let me know what those drugs are. So there were refusals. motions that were actually argued on this basis where my friend said this is a piece of relevant information, which is the opposite of what my friends are saying now they're saying other molecules other time period not relevant. And you'll see the question summarized here, and you'll see that farmer science gave an answer tetrabenazine his example valacyclovir, Gabapentin and references were made to dates here and then there's an answer below the same sort of thing. Here's reformer science went went into the market, competed with a vertex, how things turned out. So my friends got that evidence, bad evidence for them, of course in discovery, and that's what discovery is for. You get to ask for information that helps your case and hurts your case and I think what my friends are now trying to do is prevent the evidence that hurts their case from going in. And I you know, my my friend just now made reference to Mr. Cohen's argument on Monday. Dealing with the motion before you last week or the decision you issued last week, and I'll just put that up quickly because I think what you decided there, which I think was fair, and was accurate, was that that motion had to do with impeachment, and I just got your decision on the screen. And I'm highlighting here here the documents being sought by the defendants are not being sought to prove or disprove a point, but for possible use to impeach a witness. And that's how you understood it. That's how we understood and that's how we responded to it. So you know, they used to impeach I mean, we saw this yesterday, you saw witnesses before you for them yesterday, I don't think there was a need to question their credibility. And we saw that even with Ms. Ship. She was willing to agree readily with what what with what Ms. RAMAN had testified to in front of the court even after she it was explained to her that those weren't her words. So you know, the impeachment issue was what we dealt with what you dealt with and ruled on already. And, you know, whatever motivation may have been behind that motion. I think, what my friends are doing now trying to exclude us from putting in evidence, dealing with how AICPA tax and pharma science have competed in the real world is not proper, it's rule 24 that deals with it. It says if you refuse and discovery you can lead it at trial except with Viva record. It's not a we'll stay statement. It's not a motion pre trial motion. And we've got the on the screen here I've got the will say statements where my friends knew that this is exactly what Miss Raman would be talking about pharma sciences competitive position relative to a protects other generic companies launch and sales of zolpidem in 2016 and beyond. So none of this is a surprise. My friends asked and discovery because they knew it was relevant. The motion before you last week was not about the relevance of other molecules. It was about something else. And so I think I know right now, we're dealing with MS Raman and zolpidem. But I think we're going to come to the other molecules. My friends know about that evidence that's bad for their case, I think it ought to go in.

Just as in if I may. There's a lot that was said there. I have a few things to say in response. First off, we did ask those questions and discovery and we were entitled to do that. Subsequent discovery, my friends took the position very strongly in their motion, that the only relevant information was pertaining to that will put them and you ruled on that. And so it shouldn't go in for that reason. And they shouldn't be permitted to take a different position. Now. Secondly, you hit the nail on the head in terms of looking at the IMS data in the in subsequent period versus the customer investment. Being paid later. The IMS data doesn't show anything about the customer investment being paid. It is just the sales specifically. Thirdly, the will say that we that we went to was amended and it was specifically removed from certain witnesses the other products, particularly Dr. Goodmans. And for the others, the word zolpidem was added to put an emphasis on the fact that they would be speaking to multiple zolpidem. Lastly, in terms of the impeachment part of your ruling, impeachment isn't just about credibility. We were asking for that information to be able to confirm the evidence that these witnesses will be putting forward. This. I reject my friend's submission that we are objecting to this on the basis that it is bad evidence. It is not relevant based on the position that they took in the motion and that wasn't our position, and that wasn't a position taken until a few weeks ago.

Let me just make it clear that your motion said as I recall, that the reason you wanted that evidence was to impeach the witnesses. And that's exactly what your motion. So I'm not prepared to consider I'm not prepared to give any weight to some suggestion that that wasn't the only reason you may have wanted the evidence for it because if you had other reasons I wasn't told what they were. I I have a great deal of difficulty Mr. Draw the scene and let's deal with what we have in front of us right now. I fully anticipate that we're going to have issues with other other moms molecules and other time periods and so on so forth. But this evidence that you're asking the witness about deals with the molecule issue, but doesn't deal with it in the top in any of the time periods that are relevant as far as I can see it deals with it after the but for period ends and I have a great deal of difficulty seeing how there's any relevance whether Apotex got out of the market, whether pharma science got out into the market, whether a third Junior came into the market. I don't see how whether people started sleeping a lot better and bought less of it. I don't see how any of that is relevant, how sales after the the relevant period has any relevance to any of the issues that I have to determine.

That's going to wait so the parties can argue about which

No no, it's 00 Wait it's relevant. Is there any relevance to it? What's the relevance to this?

The relevance is that this data shows that farmer science can compete and exceed a protect his market share. That is what the data is that Ms. Raymond is about to show you will show my friends say that we can't we can't compete with a vertex. You've seen this and Dr. Gruden doors report. We can't compete with a vertex. They will outmuscle us they will beat us. This is the product at issue and this is Miss Raman who was there and is going to tell you we beat a PP attacks.

What we're doing here I think I sense where you're going is shutting the door on a witness saying we in fact that this molecule beat ape attacks.

This and Dr. Sherman died in the interim period as well. I mean, there's so many, even if even if I can see that there may be a molecule of relevance to this

without getting the

fact that we take our morning break, we're gonna take 15 minutes.

Okay, thank you. May we advise Ms. Raman?

Yes, yes. The court will advise Miss Raymond. Thank you. Your

honor. And adjourned until 1050.

Running the screaming, just advise you the court will be taking a break until roughly 1050. You're on mute right now but sorry. Thank you. My apologies. Okay. recording stopped