Law Times

Page 14 April 20, 2015 • lAw Times www.lawtimesnews.com Drug class actions continue to proliferate But prospects for certification diminished in light of B.C. case BY JULIUS MELNITZER For Law Times n 2014, plaintiffs' lawyers initiated at least 15 class proceedings alleging a failure to warn of the risks as- sociated with prescription drugs. The list of impugned medications includes the blood thinner Pradaxa, testosterone replacement drugs, the antipsychotics Risperdal and Invega, the acne treatment drug Accutane, and the seizure relief drug Topamax. The courts haven't certified any of these actions. The prospects of that occurring, however, have diminished somewhat in light of the British Columbia Court of Ap- peal's decision in Charlton v. Abbott Laboratories Ltd. earlier this year. "It used to be that pharma cases were considered as paradigms for class actions," says Katherine Kay of Stikeman Elliott LLP in Toronto, who represented Apo- tex Inc. in the Charlton proceedings. "The law against us was so bad, though, that as a general matter you had to think it would swing back." Charlton involved a drug, Sibutramine, contained in medication manufactured by Abbott Laboratories and Apotex for the treatment of obesity. The plaintiffs al- leged Sibutramine was adverse to cardiovascular health, causing a variety of conditions including heart attacks, strokes, high blood pressure, increased heart rate, and irregular heartbeat. Some of the class members reported cardiovascular events after ingesting Sibutramine while others didn't. It was also unclear how many class members, if any, had pre-existing cardiovascular problems, and the expert re- ports presented by the plaintiffs showed no studies of the risk to patients with no such history. At first instance, the B.C. Supreme Court certified the case, defining the class as all Canadians who were prescribed and took Sibutramine. On appeal, the de- fendants alleged the plaintiffs hadn't led evidence of a methodology for establishing causation on a class-wide basis. The Court of Appeal agreed with the defendants' argument, concluding that no generalized risk data was available. That was an insurmountable evidentiary hurdle. "While there is no dispute that those with preexisting cardio- pulmonary disease are at a sta- tistically increased risk of adverse cardiac events, this is not a case where the experts disagree on the extent of the risk, but rather, a case where the experts are uncertain whether there is a risk to the class as a whole and cannot describe a methodology for addressing that question," the court wrote. The B.C. court pointed to a 2012 decision, MacMillan v. Ab- bott Laboratories, in which the Quebec Superior Court had de- nied certification in a similar ac- tion in the context of that province's Civil Code of Pro- cedure. "Even though the number of pharma actions filed indicates that these types of decisions have not been a major discouragement for plaintiffs, it does seem that courts are applying higher standards in claims against pharma manufacturers," says Emily Larose of Cassels Brock & Blackwell LLP in Toronto. "They're doing so by scrutinizing plaintiffs' litigation plans more closely, affirming that bold statements and bullet points are not enough, and insisting that someone has to think out what is needed to prove causation on a class-wide basis." Larose believes the length and complexity of the 2012 Ontario Superior Court trial in Andersen v. St. Jude Medical Inc., in which the court dismissed a class action alleging defects in prosthetic heart valves, has given judges pause about granting certifica- tion too easily. "To be sure, Andersen was a medical device case, but it was an eye opener in terms of how diffi- cult, costly, and lengthy trials of common issues can be and how hard they are on scarce judicial resources," she says. Sylvie Rodrigue, who prac- tises out of Torys LLP's offices in Toronto and Montreal, says Charlton is a good example of a "gatekeeper" case. "The Court of Appeal did ex- actly what judges should be do- ing because it's important for the plaintiffs to establish that certify- ing will advance the case for the entire class," she says. "Some judges, particularly in Ontario, have been watering the test down to the point where the defence bar feels that the courts are abdicating their role as gate- keepers." Still, Kay believes the pendulum will continue to swing. "What seems to happen time and time again is that we get a decision, the plaintiffs change the pitch of their arguments, the defendants respond in kind, and the jur- isprudential landscape changes," she says. "Having said that, however, it's still too early to determine whether Charlton will or will not be a one-off." LT law.utoronto.ca/ExecutiveLLM GPLLM Global Professional Master of Laws [Get a Master of Laws] Because business issues are legal issues. So if you want to get ahead in business, get the degree that gets you there faster. ONE YEAR – PART - TIME – NO THESIS – FOR L AWYERS AND NON - LAWYERS Untitled-8 1 2015-03-02 11:15 AM FOCUS 'It used to be that pharma cases were considered as para- digms for class actions,' says Katherine Kay. I

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