The Price Of Generality: Certification Denied

• Published date: 19 January 2023
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Product Liability & Safety, Class Actions, Food and Drugs Law
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Class Actions Monitor, Dorothy Charach, Brandon Kain and Frank McLaughlin
• topic: Product Liability Law

A Significant Win for a Pharmaceutical Company in a Product Liability Class Action

Contrary to popular belief, certification is not always granted in pharmaceutical product liability class actions. Once again,¹ the defendants have prevailed in the significant decision recently released by the Honourable Justice Glustein: Price v. H. Lundbeck A/S et al., 2022 ONSC 7160 ("Price").²

The decision is an excellent precedent for defendants in product liability class actions facing allegations of a failure to warn their consumers about alleged harms that their products might cause. Price holds that manufacturers have a duty to warn about specific risks, not generalized and unidentified risks of harm - so if a "failure to warn" common issue proposed by a plaintiff is too general, the answer will not advance the litigation for the class and the class action cannot be certified. The decision also affirms that defendants can defeat certification in pharmaceutical product liability class actions if plaintiffs fail to propose an appropriately framed general causation common issue. It is not enough for a general causation question to be answerable in theory - if that answer will not advance the litigation for the class, then the class action will not be certifiable.³

Background

In this case, the plaintiffs alleged that Celexa', a very important anti-depressant that many Canadians rely on, was teratogenic if ingested during pregnancy. A teratogen is any agent that can, under reasonable circumstances of exposure, disturb the development of an embryo or fetus and thereby cause congenital malformations.⁴ The plaintiffs did not allege that there was any specific congenital malformation or birth defect that could be caused by Celexa', but rather that there was a possibility that hundreds of malformations, ranging from minor cosmetic imperfections to major life-threatening conditions, might be caused by it.⁵ Despite Lundbeck's warning in its product monograph that the safety of Celexa' in pregnancy had not been established, the plaintiffs alleged that Lundbeck breached a duty to warn that Celexa' "is or may be a Teratogen."⁶

By way of background, in order for a plaintiff to succeed in a pharmaceutical product liability class action, they must establish (among other things) two aspects of causation: general causation and specific causation. General causation is defined as "whether or not an agent has the capacity to cause a disease or medical condition" while specific causation...