In Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 161, the Federal Court of Appeal (“FCA”) recently overturned a substantial damages award in a pharmaceutical patented medicines action on the basis that the trial judge admitted improper hearsay evidence. This is an important reminder that the hearsay rule of evidence is alive and well.
At trial, only one witness was called to testify in support of damages and he did not have actual firsthand knowledge of the purported facts to which he was testifying. Instead the witness could only testify to the oral and written statements of others. The FCA ruled that this evidence was hearsay, and therefore inadmissible.
Hearsay evidence is an oral or written statement made by a party who has not come to court to testify. An example of oral hearsay is a witness testifying that “John told me he would give me $100”. This is hearsay because the author or speaker of these statements is not present in court to testify to the truth of the statement. Whether or not the statement is admissible depends on the use of that statement. If the purpose of calling the hearsay evidence is to prove the truth of the statement, then the statement is inadmissible. Therefore, in this example, the proper way to prove that John would give the witness $100 is to call John as a witness to testify to the truth of that statement; otherwise, the statement cannot be used to prove that John would have given the witness any money.
Read more: http://www.ilnipinsider.com/2016/08/whats-your-evidence-the-danger-of-hearsay-evidence-in-ip-litigation/
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