Canada: Plaintiffs Lose Pre-Certification Summary Trial In BC For Failure To Provide Unbiased Expert Evidence

In a pre-certification summary trial, the British Columbia Supreme Court in Player Estate v. Janssen-Ortho Inc.,¹ dismissed claims against defendant manufacturers of fentanyl patches. One feature of this case may have limited applicability to the British Columbia class actions bar, given the differences between the law in BC and other Canadian provinces noted below, but it illustrates how the failure to submit proper expert evidence can be fatal to a claim.

The representative plaintiffs were widowed after their husbands died while using prescription transdermal fentanyl patches. They sought to certify a class action alleging that the patches manufactured by the defendants were defectively designed and the defendants failed to warn customers of the risks associated with their products.

The defendants manufactured two types of patches. Two of the defendants applied for summary trial on the basis that the class action was over-inclusive as the type of patches they manufactured did not cause the alleged harm.

The Court noted that BC class actions law differs from the law other provinces where a proposed class action is treated as an individual action. In contrast, in British Columbia a pre-certification proceeding cannot be dismissed solely on the basis that the representative plaintiff does not have a claim against a particular defendant. The Court held that it followed from this distinction that it could consider evidence of potential class members, as well as expert evidence that the products were defective and breached the duty of care to those class members. That being said, the Court would not issue judgment in favour of the representative plaintiffs as the proposed class members were not parties to the action.

The Court in Player Estate went on to note that, because a summary trial consists of written, rather than oral, evidence, summary trial is not suitable for complex cases or where expert evidence conflicts on important issues. However, the Court noted that any conflicts must be rooted in admissible evidence.² In that regard, the Court found that the plaintiffs' only expert was biased and not credible, given that she acted as an advocate for the plaintiffs, misquoting scientific data and intentionally omitting material that conflicted with her position. The expert evidence adduced by applicant defendants was found to be clear, credible and admissible. As a result, the Court found that there was no conflicting admissible evidence, so a summary trial was appropriate.

Although the plaintiffs' claims were based on a number of grounds, the only grounds that the Court addressed in more than a summary fashion were as follows: that the patches were defectively designed, and that consumers had not been adequately warned.

The Court held that to demonstrate negligent design, the plaintiff not only needed to show that the product was not reasonably safe, but also had to show that it was feasible to design the product in a safer manner.³ The evidence showed that the applicant defendants complied with the relevant regulatory standards in manufacturing their patches. Moreover, given that the plaintiffs' expert evidence was found to be inadmissible, the plaintiffs were unable to show that a safer alternative design was available.

Similarly, based in part upon the uncontradicted evidence of the applicant defendants' expert, the product monographs included in the product packaging adequately warned consumers. Accordingly, the plaintiff's claim for failure to warn was also dismissed.

This case illustrates the necessity of ensuring that a party obtain an independent expert, not an advocate. The plaintiffs' claims were dismissed because there was no admissible expert evidence put forth by the plaintiffs. The Court noted that while "class actions are a powerful tool (...), it is not a tool where simply making an allegation against a defendant or group of defendants is sufficient. There must be evidence to warrant the expense of a full trial."⁴

This case also illustrates the difference between pre-certification hearings in British Columbia versus other Canadian provinces, as the scope of the inquiry is much broader in British Columbia. Notwithstanding that any judgment would bind only the named plaintiff(s), evidence relating to the entire proposed class can be considered. However, the Court's decision to hear evidence of potential class members was very recently considered by the Supreme Court of Canada in Bank of Montreal v. Marcotte.⁵ In Marcotte, the Supreme Court held that, in the context of a class action brought under the Québec Code of Civil Procedure, representative plaintiffs in multi-defendant class actions do not need to have a direct cause of action against each defendant to have standing to advance the action.⁶ This approach, the Court noted, ensures the economy of judicial resources, enhances access to justice and averts the possibility of conflicting judgments on the same question of law or fact. ⁷ Though Marcotte discussed only Québec civil procedure, the Supreme Court's reasoning may lend further support for potential class members seeking standing to adduce evidence in pre-certification proceedings across Canada.

Footnotes

1 2014 BCSC 1122 [Player Estate].

2 Ibid at para 191.

3 Ibid at para 211.

4 Player Estate, supra note 1 at para 207.

5 2014 SCC 55 [Marcotte].

6 Ibid at para 31.

7 Ibid at para 32.

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