We have posted before about just how difficult Canada is becoming as a jurisdiction for class actions defendants, particularly companies in the pharmaceutical industry. Frequently, identical consumer products, drugs, and medical devices are marketed in Canada as well as the U.S. When a product is recalled, or new science suggests risks in a product leading to American product liability and mass tort litigation, Canadian plaintiff attorneys have not been bashful about bringing copycat litigation, borrowing from U.S.-conducted theories and discovery.
A ray of hope to the north? The Quebec Superior Court last week declined to certify (authorize is the term they use) a class action for Canadians claiming to have experienced side effects from the use of GlaxoSmithKline Inc.’s antidepressant Paxil. This is the first time a Quebec court has rejected a class action involving a prescription pharmaceutical product — ever as far as we can tell. See Goyette v. GlaxoSmithKline Inc., Quebec Superior Court, No. 500-06-000157-020 (8/17/09).
Plaintiff sought to represent a national class of Paxil users. Three issues were prominent: Did the claims of the class members raise identical, similar or related questions of law or fact? Did the facts alleged seem to justify the relief sought? And was the plaintiff an adequate class representative? Importantly, at the time of the complaint, the class rules required plaintiff to submit a supporting affidavit (on which she was cross-examined). Since that time, Quebec has sought to minimize the amount of factual material presented to the court in support of class certification (making opposition a bit more difficult).
The first issues sounds like the commonality aspect of U.S. class procedure. GSK argued that the highly subjective nature of the alleged symptoms in the present case, such as headaches, nausea, vertigo, the infinite variations on the symptoms, and the intensity and duration are so subjective that they cannot be decided collectively and so cannot satisfy the common question element. Nevertheless, the court found that while the claim for exemplary damages was not common, there were common questions concerning the warnings GSK had given.
However, even in the absence of a true predominance requirement, some Canadian courts will look at whether and what issues will require individual determination. Here, the court agreed that the underlying question is whether allowing the suit to proceed as a representative one will avoid duplication of fact-finding or legal analysis. Thus an issue will be “common” only where its resolution is necessary to the resolution of each class member’s claim. The court found that if “a class action were permitted here, there would be no saving in judicial time since there is no real common question and each case must be litigated on its on merits.” The court noted that each year there was a different set of information in the CPS (Canadian PDR), and accordingly, there would be different sub-classes depending on changes in the relevant wording in each of the years.
Similarly, in this case, civil liability must be determined by assessing the specific risks disclosed for each individual patient which risks vary depending on multiple factors:
a) whether the adverse effects occur during the use of the product and lead to discontinuation;
b) whether adverse effects follow discontinuation;
c) whether the user was advised prior to use, by either their physician or pharmacist, of whether they may experience dependency or withdrawal symptoms;
d) whether the symptoms suffered were described in the C.P.S. (PDR);
e) whether the symptoms were not described in the C.P.S. but are proved to be directly related to the use of Paxil; or
f) to the extent that the symptoms arose following discontinuation, whether such symptoms were “mild and transient” and were described in the C.P.S.
Next, the court determined that the facts alleged do not support the relief requested. All of the symptoms that Ms. Goyette alleges to have experienced were mentioned by GSK in the C.P.S. and that any fault must have been through the misreading of the C.P.S. by Ms. Goyette’s prescribing physician. And she made no specific allegations about the injuries of the absent class members. Accepting as true the well-pleaded allegations, in essence, the facts that are taken as proven do not include impressions, opinion, legal argument, inferences or hypotheses that are not verified.
Finally, adequacy of representation is evaluated on three criteria:
1- an interest in undertaking the legal proceedings;
2- an ability to instruct counsel; and
3- absence of a conflict with the other group members.
Based on the previous analysis, the court found that Ms. Goyette could not represent a class since she herself does not have a valid cause of action. Moreover, plaintiff had shown a singular lack of interest in that she never sought to speak with any of the other members of the proposed class, none of whom she knows; she has never sought to communicate with any of the individuals alleged to have signed up at her attorneys’ website; and she could provide no explanation as to why these legal proceedings which started on May 2, 2002 remained dormant for several years.
An analysis with a little bit of teeth.