Canada: Successful Pre-Certification Summary Trial In Pharmaceutical Product Liability Case

The British Columbia Supreme Court recently dismissed claims against two defendants in a proposed class action, prior to certification, citing a lack of admissible expert evidence supporting the potential class members' claims. The court's willingness to take this step prior to certification appears to reflect the more robust approach to summary proceedings suggested by the Supreme Court of Canada and emphasizes that on summary trial, admissible evidence supporting claims must be tendered.  

That the court decided the matter was suitable for summary trial under British Columbia's Rules of Court, despite the presence of competing expert opinions and a voluminous record of over 5,000 pages, also illustrates that even more complicated product liability claims may be amenable to summary disposition in Canada.  

Background and facts

The Claim

The action was dismissed against two of five makers of fentanyl transdermal patches—Teva Canada Limited and Sandoz Canada Incorporated. The defendants in the proposed class action included the makers of two different fentanyl patches: those that contain a "reservoir" of liquid/gel fentanyl that is released through a rate-controlling membrane, and matrix-style patches that contain the active drug suspended in a semi-solid state in the adhesive. The application for summary trial was brought by the makers of the matrix-style patches, after the parties had conducted full examinations for discovery and cross-examinations of the respective experts and key deponents, but prior to certification.

The representative plaintiffs were the widows of two men who died while using prescription transdermal fentanyl patches. They alleged their husbands' deaths were caused by the ordinary use of the patches, and the defendants failed to warn customers of their products' risks. The plaintiffs' claims against the makers of both styles of patches were based in negligence, negligent misrepresentation, breach of warranty, breach of fiduciary duty and alleged the marketing and selling of defective products. The plaintiffs also claimed breaches of the Food and Drugs Act, the Competition Act, the Sale of Goods Act and the Business Practices and Consumer Protection Act.

Suitable for Summary Disposition

Both plaintiffs and defendants relied heavily on disputed scientific facts and competing expert affidavit evidence regarding the safety of fentanyl transdermal patches. Despite the complex factual issues and nature of the evidence, the court found summary disposition appropriate given the lack of credible evidence supporting the plaintiffs' claim. Citing support in the recent decision Hryniak v Mauldin, the court found it would cause undue prejudice to the defendants and fentanyl patch users if such an unmeritorious claim proceeded to the certification stage, thereby resulting in undue expense to the defendants and the courts, and alarming anyone using or even prescribing fentanyl. Ultimately, the court found the fact that an action is intended to become a class proceeding is not in itself a factor that would render it unjust to dismiss the action.


The court first established that the scope of inquiry in a pre-certification application must include the facts applicable to the individual plaintiffs and the members of the proposed class. The court concluded that evidence relating to the proposed class would be considered in determining whether it would be just to decide the issues on the application.

The court reviewed the various sources of evidence tendered, finding the plaintiffs' evidence failed to establish that using matrix-style patches caused the deaths of the plaintiffs' husbands. The court rejected reported injuries to proposed class members collected by plaintiffs' counsel via telephone interviews as well as adverse event reports published by Health Canada as inadmissible hearsay evidence. The rejection of this evidence illustrates the importance of properly tendered and admissible evidence in relation to any action.  

The court then turned to consider the general causation evidence tendered by both parties. There were a number of conflicts between the expert opinions, and both admissibility and weight were challenged.  

Ultimately, the court found that the plaintiffs' expert misquoted scientific studies, provided evidence outside of her expertise, introduced select evidence that supported her position while ignoring evidence that did not, acted as an advocate rather than a neutral and objective party, and offered an opinion without a proper factual foundation. As such, the evidence, though admissible, was accorded little weight. The court found that the defendants' experts provided clear and well-supported opinion that was admissible and credible.

Lack of admissible evidence

Notwithstanding that a core issue to the dispute – the design and availability of an alternative "safer" product – was the subject of conflicting expert evidence, the court deemed that the action was suitable for summary disposition. The court noted that notwithstanding the conflict in the evidence of the experts, the case was suitable for summary disposition because the conflicts were not rooted in admissible evidence. Given that the plaintiffs had failed to discharge their burden to tender sufficient and admissible expert evidence supporting their position, the action was dismissed.

The court noted that while the decision was not necessarily dispositive of the class action against Teva and Sandoz because, under British Columbia's rules the summary trial is decided only in the context of claims forwarded by the named individuals, it was difficult to imagine that any new representative plaintiff would step forward to re-argue these issues. The court placed reliance on the evidence supporting the defendants' position that they are not in breach of any duty in law to the users of their products, evidence the court found to be admissible and credible.

Lessons Learned

The Player decision provides helpful guidance on the analysis to be undertaken where summary disposition is sought before certification. Defendants in various cases have succeeded in advancing such motions prior to, or at the time of certification, and given the recent guidance by the Supreme Court of Canada on the use of summary proceedings, one can expect that more applications of this nature will be brought, giving courts an opportunity to take a good hard look at the expert evidence, and potentially to make dispositive findings prior to certification.

Click here to read the Player v Janssen-Ortho Inc., 2014 BCSC 1122 decision.

Norton Rose Fulbright Canada LLP

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