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

AuthorAdrienne Shnier
Pages169-199
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.
CCAR 15-1.indb 169 8/6/2019 4:33:32 PM
CCAR 15-1.indb 170 8/6/2019 4:33:32 PM

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