Product Liability: Superior Court Refuses Authorization For A Class Action Against A Drug Manufacturer

On July 4, 2011, the Quebec Superior Court dismissed a motion filed by Option consommateurs (Petitioner) for authorization to institute a class action against one of our clients, Merck Canada Inc. and Merck & Co., Inc. (Merck).1

The class action was being sought on behalf of all natural persons who, in Quebec, had purchased or taken a drug marketed under the name FOSAMAX®, which is prescribed for treating and preventing osteoporosis. The Petitioner accused Merck of being negligent and failing in its duty of safety and its duty to inform in marketing the drug, the use of which is linked to osteonecrosis of the jaw (ONJ), a rare condition disclosed in the product monograph. The Petitioner also alleged that the drug could increase the risk of atypical fractures. It was seeking reimbursement of the price paid for the drug as well as punitive and compensatory damages.

The Superior Court dismissed the motion because the Petitioner failed to show that the criteria in article 1003 of the Code of Civil Procedure (CCP) were satisfied.

Existence of common questions (article 1003 (a) CCP)

The court found that individual questions concerning the existence of harm, a causal relationship and exculpatory grounds were so numerous and substantial that the test in article 1003 (a) CCP was not met.

The proposed action required the examination, for each group member, of a host of individual questions, including: the existence of harm (diagnosis of ONJ or an atypical fracture); the connection between the harm sustained and use of the drug in light of all relevant risk factors; the information received from the physician or dentist; and the advisability of taking the drug despite the alleged risk of ONJ and atypical fractures given the member's particular situation...