Pharmaceutical Drug Class Actions: Plaintiffs’ Considerations

• Author: Harvin Pitch and Cindy Kieu
• Pages: 219-239

219

PHARMACEUTICAL DRUG

CLASS ACTIONS: PLAINTIFFS’

CONSIDERATIONS

Harvin Pitch and Cindy Kieu*

This article will outline the issues involved in certifying a class action

with respect to the marketing and sale of a pharmaceutical drug with a

view of offering plaintiffs’ counsel best practices for litigating a drug class

action. It will also deal with recent developments in the national class

action field with respect to competing national class cases involving the

same drug issues.

A. INTRODUCTION

Product liability cases including the manufacturing, marketing, and sale

of defective pharmaceutical products have been said by the courts to

lend themselves particularly to class action treatment.1 This is because

pharmaceutical products are manufactured for use worldwide. They are

* This article was written in preparation for the 2009 Canadian Institute’s Forum

on Drug, Medical Device and Biotech Litigation, which was originally sched-

uled for 6–7 April 2009. The conference, unfortunately, did not take place as

scheduled.

Harvin Pitch is a partner with the firm of Teplitsky, Colson LLP. He was called

to the Bar in 1970 and has practised civil litigation ever since. He holds an

LL.M. from Harvard Law School and is the author of a text “Damages for

Breach of Contract,” which is updated quarterly. He has lectured at the Law

Society, Canadian Bar Association, Advocates’ Society, and Insight on numerous

topics involving commercial litigation and class actions. Cindy Kieu is an arti-

cling student at Teplitsky, Colson LLP and a member of the graduating class of

2008, Faculty of Law, University of Windsor.

1 Wilson v. Servier (2000), 50 O.R. (3d) 219 at para. 118 (S.C.J.) (granting cer-

tification), leave to appeal to Div. Ct. refused (2000), 52 O.R. (3d) 20 (S.C.J.)

[Wilson]. However, the comments of Justice Ellen MacDonald in Boulanger v.

Johnson & Johnson (2007), 40 C.P.C. (6th) 170 (Ont. S.C.J.), leave to appeal

refused, [2007] O.J. No. 1991 (S.C.J.) [Boulanger] suggest that the courts will

not adopt this principle. She is particularly critical of the statement that prod-

uct liability is a quintessential case for certification (at para. 8).

220 THE CANADIAN CLASS ACTION REVIEW

likely manufactured in the US and then sold in Canada and elsewhere.

The manufacturing process is therefore standard and the marketing and

sales are also standard in terms of representations and warnings. There

are some differences between Health Canada and US Food and Drug

Administration (FDA) regulation, but the principle of similarity still

applies.

In the pharmaceutical area, cases involving pacemaker leads,2

mechanical heart valve repair products and devices,3 pharmaceutical

drugs, such as diet drugs, Vioxx, and Zyprexa, and implants have been

certified.4

There has yet to be a trial of a certified pharmaceutical drug class

action, although Wilson v. Servier Canada Inc.,5 came close before being

settled just before trial. In that threshold decision, all issues were debated

and determined before Justice Cummings in a certification motion. The

case involved the manufacture and sale of a diet drug that caused hyper-

tension and heart disease. There were thirty-five interlocutory motions

brought before the case was finally settled. The key issue in Wilson, as in

all pharmaceutical drug class actions, was whether the individual issues

overwhelmed the common issues, thus rendering a class action not to be

the preferable procedure.

A number of problems have contributed to the few number of phar-

maceutical drug class actions actually litigated as compared to class

actions in other areas. One serious problem in pharmaceutical drug

cases is that although the drug may be negligently manufactured or the

warning may be inadequate, the question as to why each member of the

class developed the particular illness, be it diabetes or heart disease, is

very particular to the individual and can depend on a host of individual

factors. While such an issue does not prevent the certification of class

actions, it makes the resolution of the ultimate trial long and arduous.

2 Nantais v. Telectronics Proprietary (Canada) Ltd. (1995), 127 D.L.R. (4th) 552

(Ont. Ct. Gen. Div.), leave to appeal dismissed (1995), 129 D.L.R. (4th) 110

(Ont. Ct. Gen. Div.).

3 Andersen v. St. Jude Medical Inc. (2003), 67 O.R. (3d) 136 (S.C.J.); Peter v.

Medtronic Inc., [2007] O.J. No. 4828 (S.C.J.); LeFrancois v. Guidant Corp. (2008),

56 C.P.C. (6th) 268 (Ont. S.C.J.); Tiboni v. Merck Frosst Canada Ltd. (2008), 54

C.P.C. (6th) 366 (Ont. S.C.J.) [Tiboni]; Wilson, above note 1; Heward v. Lily and

Co., [2007] O.J. No. 404 (S.C.J.), aff ’d (2008), 295 D.L.R. (4th) 175 (Ont. Div.

Ct.) (appeal dismissed) [Heward]; Boulanger, above note 1.

4 Bendall v. McGhan Medical Corp. (1993), 106 D.L.R. (4th) 339 (Ont. Ct. Gen.

Div.), leave to appeal refused, [1993] O.J. No. 4210 (Gen. Div.).

5 Wilson, above note 1.