Shareholders of local traders Lasco Distributors and Medimpex Jamaica will have to wait at least another two months for damages arising from their battle with global pharmaceutical giant, Pfizer, to be decided in court.

The Supreme Court delayed the start of the assessment case for a second time on July 18, and has now set September 26 as the start date of the hearing.

The hearing will determine damages payable to both Lasco and Medimpex for losses caused by a Supreme Court injunction against the sale of their generic hypertension/blood pressure drugs for some seven years, while the courts heard a case brought by global pharmaceutical giant, Pfizer, to block the sales permanently.

The issue dates back to 1992, when Pfizer commenced selling Norvasc, a hypertension drug made from Besylate salts of amlodipine, in Jamaica.

At the same time, Pfizer also sought to obtain a patent from the local courts for the salts of amlodipine used in the drug. The patent was granted in 2002. When Lasco and Medimpex started distributing their much cheaper generic versions of the drug ( Lasco’s Amlopidine and Medimpex’s Normodipine) in 2002, Pfizer’s London office took the matter to court, and in the process sought an injunction against the local firms continuing the sale of their products.

The Supreme Court granted the injunction in February 2005. The Supreme Court eventually dismissed Pfizer’s patent in 2009 on the basis that it had already expired in another jurisdiction (Egypt), but reinstituted the injunction, pending the appeal of the judgement by Lasco and Medimpex.

In May 2012, the Appeal Court agreed with the dismissal of Pfizer’s patent by the Supreme Court and also ended the injunction. That ruling was upheld by the Privy Council in London in 2014 and suggested that the parties return to the Supreme Court for an assessment of damages arising from the injucntion.

Following a pre-trial last December, the case was originally expected to start in January, but was delayed to July 18 for the parties to fulfil certain orders of the court.

The case is now at the stage of assessment of damages according from the injunction which was requested by Pfizer and awarded by the local Supreme Court in 2005. It lasted until 2012.

In the meantime, Pfizer acquired an expert witness, which has since been identified as Prem Lobo, a principal at Cohen Hamilton Steger and Company, a leading expert in damages quantification, business valuation and forensic accounting based in Canada.

Lasco also has an expert witness in St.Elmo White, who has provided an expert report on the losses sustained by the local distributor due to the injunction.

Unlike Pfizer, Lasco, and to a lesser extent Medimpex, has not limited its period of claim to the seven years of the injunction. Instead, it has focused on its marketing and growth strategy, which covers a period up to 2022.

On that basis, Lasco has made a claim for approximately US$311 million in damages, including the lost profits during and after the injunction. That amount includes an estimated $10.7 billion (or US$132 million) loss in profits during the 2005-2012 injunction period, and a further $20 billion (US$179 million) loss for the post-injunction periods lost profits.

Lasco has also listed lost sales of close to one billion tablets during the injunction, and an additional projected 2.3 billion sales in tablets since.

Meanwhile, Medimpex has claimed losses of US$11.5 million during the injunction, including $442 million (US$5.5 million), and an additional $722.6 million (US$6 million) since the injunction.

However, in response, Pfizer has limited those losses to US$518,000 for Lasco and US$68,000 for Medimpex.

In fact, Pfizer has refused to respond to the local companies’ claims for losses after the injunction expired in 2012. Its total offer of US$3.3 million to both companies only covers the period up to 2012, when the injunction was removed.

Pfizer has offered an explanation that the significant differences between the figures are due to several issues, such as:

(i) differences in the estimate of their “but for” tablet sales volumes, including; (a) differences in the assumed size of the Amlopidine market in Jamaica; and, (b) differences in the assumed market shares between Pfizer, Lasco and Medimpex;

(ii) Differences in the “but for” tablet selling prices presented by both companies;

(iii) Differences in the estimated cost of sales and gross profit margins with respect to both.

However, available data on actual sales of the Norvasc/Las-Amlodipine/Normodipine tablets in Jamaica, show that sales of the tablets were at their highest between 2006 and 2010, which were within the first five years of the seven-year injunction.

In fact, sales of the tablets more than doubled from just above 1.5 million tablets in 2005, when the injunction was granted, to close to 3.5 million tablets in 2010 when it ended, the highest annual sales figure for the hypertension drugs up to 2015.

At the time, the Caribbean region was suffering from what experts in the field of Noncommunicable Diseases (NCDs), including Dr Taneisha Davis, suggested was “an epidemic of diabetes and hypertension of some sort”.

Local surveys then were showing that among people 15-74 there was an upward trend in the prevalence of obesity, hypertension and diabetes.

Davis noted that, with there being no cure for diabetes and hypertension, attention had focus on healthy lifestyles and adhering to medications.

Lasco, one of Jamaica’s largest distributors of pharmaceuticals, exploited the situation by offering its amlodipine for one-eighth the price for which the original brand from Pfizer was selling.

With nearly 40 per cent of Jamaicans suffering from hypertension, most of whom could not afford the more expensive Pfizer brand and settled for Lasco’s and Medimpex’s much cheaper generics, the two local companies, were experiencing rapidly increasing sales, while Pfizer’s sales fell dramatically.

“Amlodipine is very important — 38 per cent of Jamaicans have hypertension and most of them are poor. They have to take that pill daily. Our price is one-eighth of our competitor’s which is at $120. We sell ours for $15-$20 each,” Lasco Chairman, Lascelles Chin said in a newspaper interview last year.

The issue was also a moral one, as there was widespread concern that Jamaicans who could not afford Pfizer’s much more expensive tablets were unable to fund proper medication, and many of them were turning to local “bush” remedies.

At least some of these issues are expected to be aired in court when the parties meet again in September to settle damages.