The Quebec Court of Appeal just handed down its decision on a motion to authorize a class action related to the use of the well known antiosteoporotic drug Fosamax (Option Consommateurs c Merck & Co.). On January 16, the Court of Appeal dismissed the motion on the ground that the designated person was not suffering from the problems that, according to her, were caused by the use of Fosamax. The Court of Appeal also concluded that, in all likelihood, the group of consumers she wished to represent did not exist.

Ms. Syed-Logister and Option Consommateurs applied to the Court of Appeal for authorization to institute a class action against the manufacturer of Fosamax. According to the motion, the manufacturer had failed in its duty of safety and duty to inform by distributing the drug when there was a risk that it would cause osteonecrosis of the jaw and bone embrittlement. The motion alleged that Ms. Syed-Logister was suffering from "symptoms associated with osteonecrosis of the jaw" and it was supported by several scientific articles dealing with the effects of Fosamax on the human skeleton.

During the examination for discovery, the drug's manufacturer obtained an order forcing Ms. Syed-Logister to submit her dental and medical records. These records revealed two important facts. First, Ms. Syed-Logister had never obtained a diagnosis confirming that she was, in fact, suffering from osteonecrosis of the jaw or bone embrittlement. Second, she had continued to take Fosamax after filing her motion for authorization, in spite of claiming in the motion that she would never have taken Fosamax if she had been aware of the drug's purported risks.

The Court of Appeal found that, at the motion for authorization stage, it is the individual situation of the designated person that must be examined to determine whether the conditions for authorization of a class action have been met. In this case, it was clear that Ms. Syed-Logister was not suffering from the problems that she attributed to the use of Fosamax. The fact that the motion for authorization was not supported by a medical report confirming that Ms Syed-Logister was suffering from osteonecrosis of the jaw or bone embrittlement was fatal to her action. The court also noted that the motion for authorization at no point alleged that Ms. Syed-Logister was suffering from bone embrittlement.

Finally, the Court of Appeal concluded that in the absence of indicators permitting it to assess the size and composition of the group, it was impossible to evaluate the advantages of a class action. The court pointed out that, in light of the various scientific articles submitted in support of the motion, it was statistically possible that the proposed group did not exist.

This decision shows just how important it is for a person bringing a class action to have a bona fide cause of action. If that person is not able to bring an individual action, then he or she does not have the standing to institute a class action on behalf of the group.

* Merck & Co. and Merck Frosst Canada Ltd. were represented before the Court of Appeal by Norton Rose Canada.

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