Do You Have the Heart? A Cross-border Comparative Case Study Analysis of Certification Legislation and Motions to Certify Vioxx Class Action Lawsuits in Ontario and the United States

• Author: Adrienne Shnier
• Pages: 169-199

169

Do You Have the Heart? A Cross-Border Comparative

Case Study Analysis of Certif‌ication Legislation and

Motions to Certify Vioxx Class Action Lawsuits in

Ontario and the United States

Adrienne Shnier

: The certif‌ication motion is arguably the most important step

in a class action proceeding, as the court decides whether a putative class

will be certif‌ied to allow a class action to move forward. The area of class

action litigation is one in which there are commonly concurrent and sub-

sequent proceedings in Canada and the United States, creating a unique

opportunity for cross-border comparative analyses of the class proceed-

ings and relevant legislation. In 2006 and 2008, proposed plaintif‌f classes

in the United States and Ontario, respectively, brought comparable cer-

tif‌ication motions to certify Vioxx class action lawsuits. The certif‌ication

motion in Ontario was granted, while the US motion was denied. This

paper undertakes a comparative analysis of the Ontario Class Proceed-

ings Act (CPA), the US Federal Rules of Civil Procedure (FCRP), and certif‌i-

cation requirements implications. In particular, the CPA requirement for

common issues and the FRCP commonality and typicality requirements

are comparatively analyzed based on the Ontarian and US Vioxx class

action certif‌ication motion decisions and reasons. This paper further

uniquely contextualizes the Vioxx class action certif‌ication motion deci-

sions within the structural context and culture in which Vioxx’s spon-

sor, Merck, shaped its promotion in the medical and public narrative,

discourse, and ethos, from which regulators, physicians, and the public

received information on the drug’s risk for adverse events. Considered

contextually, the CPA legislation seems more equitable, as compared with

the comparable FRCP legislation. This analysis closes with recommenda-

tions to broaden the FRCP certif‌ication legislation to become more equit-

able in its requirements.

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CCAR 15-1.indb 170 8/6/2019 4:33:32 PM