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Jul 18, 2014

Taking an innovative approach to the defence of product liability class actions, McMillan litigators Scott Maidment and Lisa Parliament have successfully used British Columbia’s summary trial procedure to dismiss a pharmaceutical class action prior to certification.

The decision by Mr. Justice Bracken of the British Columbia Supreme Court establishes that the summary trial procedure can be used to dispose of a class action before certification even where there is disputed expert evidence. Through cross-examination of the plaintiff’s expert witness, McMillan’s lawyers established that the plaintiff’s expert witness lacked the independence required of an expert witness and that the plaintiff’s expert evidence lacked a proper foundation on the central issue of defective design. The case is a good example of a court’s fulfilling its “gatekeeper” function to eliminate the testimony of experts who are not independent, and using a summary trial procedure to expedite the disposition of a complex proceeding.

The court’s 70 page trial decision, issued on June 20, 2014, provides comprehensive reasons dealing with issues of negligent design, the availability of “safer” alternative products, failure to warn, and expert evidence. It is not often that a Canadian Court deals with these issues in the trial of a pharmaceutical product case, making this decision noteworthy on that basis alone.

Case Background

The case, (Player v Janssen-Ortho Inc. 2014 BCSC 1122), was launched in September 2010 by Merchant Law Group and centred on the use of transdermal fentanyl patches for pain control and their alleged role in the deaths of relatives of the representative plaintiffs. The patches are manufactured by several companies including McMillan’s client, Teva Canada Ltd. which led the defence case. The patches come in two main types: “matrix” patches, as produced by Teva and Sandoz Canada Inc. in particular, and “reservoir” patches, as produced by other manufacturers.

Acting for Teva, McMillan’s lawyers argued for summary dismissal on the basis that Teva was not in breach of any duty to the users of their matrix-style patch, and in particular that there was no safer alternative design than the matrix design used by Teva.

The Court agreed and found that neither Teva nor Sandoz had breached any duty of care to the plaintiffs. In particular, the court found that there was no evidence that the design of the Teva or Sandoz patches was defective or that there was any safer alternative design. The court also found that the information provided to patients and physicians by the companies was clear, complete and current and that, therefore Teva and Sandoz did not breach any duty of care by failing to provide a reasonable warning of the risks associated with the ordinary use of their patches.

The Court also found that the plaintiffs had failed to prove that fentanyl caused the deaths of the plaintiffs’ relatives.