Ahlquist V. Glaxosmithkline Consumer Healthcare: Pre-Certification Disclosure In Class Actions

The recent decision of Ahlquist v. GlaxoSmithKline Consumer Healthcare, 2015 SKQB 192, concerns the scope of pre-certification disclosure in class actions.

Ahlquist involved denture adhesives manufactured by GlaxoSmithKline Consumer Healthcare Inc. ("GSK") and Procter & Gamble Inc. ("P&G") (collectively, the "Defendants") and known respectively as "Poligrip" and "Fixodent" (collectively, the "Adhesives").

Ms. Ahlquist, the representative plaintiff, had used the Adhesives over a prolonged period of time and began experiencing symptoms of a neurological disorder including "pins and needles sensations, numbness in her arms and legs...and sharp bursts of pain." Ms. Ahlquist alleged that zinc contained within the Adhesives was the cause of her injuries. Additionally, she asserted that the Defendants were negligent in marketing Adhesives containing zinc because they "knew or ought to have known, about the risks, injuries and losses to consumers and users that could result from the use of these denture adhesive products1

In her application for class certification Ms. Ahlquist sought to define the class as "all persons in Canada who have purchased or used the Adhesives." In support of her application, Ms. Ahlquist filed two affidavits: her own, and an affidavit of Vancouver neurologist Dr. Robert Douglas Keyes (the "Keyes Affidavit"). The Keyes Affidavit focused on the general impact of zinc toxicity in the human body. Although Dr. Keyes had never personally examined Ms. Ahlquist, the Keyes Affidavit stated that her symptoms were consistent with zinc overexposure.

In response, the Defendants challenged Ms. Ahlquist's assertion that the Adhesives were the source of Ms. Ahlquist's ailments. They argued that they could not respond to Ms. Ahlquist's application for certification fairly and fully without production of Ms. Ahlquist's medical, dental and pharmacy records as well as any other documents that disclosed Ms. Ahlquist's purchase of the Adhesives.

To determine the appropriate scope of pre-certification disclosure, the Court conducted a wide-ranging analysis of the case law respecting pre-certification disclosure which it then condensed into a two-part test:

(a) In the first step, a court assesses the probability that the eventual certification inquiry will be assisted by the disclosure and production of the information sought. This requires an assessment as to whether the information assists in establishing, or not, one of the certification...