B.C. Court Confirms Plaintiffs Must Provide Workable Causation Methodology To Certify Product Liability Class Proceedings

In Charlton v. Abbott Laboratories, Ltd., 2015 BCCA 26 (Charlton), the British Columbia Court of Appeal clarified the evidentiary threshold plaintiffs must satisfy at the certification stage in the context of product liability class actions. In particular, the Court confirmed that plaintiffs alleging that a product causes adverse effects or injury must adduce evidence of a workable methodology to demonstrate that the product in question was capable of causing adverse effects on a class-wide basis. In so ruling, the Court reiterated the principles articulated by the Supreme Court in the 2013 "indirect purchaser trilogy," and affirmed their application to the product liability context. Ultimately, the plaintiffs in Charlton failed to adduce sufficient evidence of general causation, which proved fatal to the certification of the action.

Background

In 2011, a class action was commenced against Abbott Laboratories, Ltd. (Abbott) and Apotex, Inc. (Apotex) on behalf of all individuals in Canada who were prescribed a drug containing sibutramine, on the basis that ingestion of sibutramine allegedly caused or contributed to adverse cardiovascular health, including heart attacks, strokes, increased blood pressure, increased heart rate and irregular heartbeat. The plaintiffs pleaded various causes of action, including negligence, failure to warn and breaches of the B.C. Business Practices and Consumer Protection Act and the Competition Act, in addition to seeking damages pursuant to the doctrine of waiver of tort.

Notably, some of the members of the class reported suffering from cardiovascular events like heart attacks or strokes after being prescribed sibutramine, while others had not. Furthermore, it was unclear from the evidence how many class members (if any) had a pre-existing history of cardiovascular illness.

Expert Evidence at Certification

The plaintiffs filed two medical expert reports in support of their application for certification, and the defendants filed two responding expert reports. After considering the expert evidence as whole, the Court of Appeal summarized the evidence as follows:

There was some evidence of increased risk for cardiovascular events in individuals with pre-existing heart problems. The Canadian product monograph cautioned against prescribing sibutramine to patients with a history of cardiovascular disease. There was no evidence presented to suggest that the drugs in question had in fact been prescribed to individuals...