The Canadian Legal Information Institute recently published an
overlooked but important class action decision of the Saskatchewan
Court of King's Bench (Court) in Graham et al. v. Hoffmann-La Roche Limited et
al. (Graham). The Court struck the plaintiffs' expert
opinion on the alleged link between a well-known medicine for
severe acne (Medicine) and inflammatory bowel disease (IBD). The
Court also refused to certify the proposed national class
action.
The authors, Gord McKee, Catherine Beagan Flood and Daniel Szirmak,
represented the brand manufacturer defendant at the hearing
together with local counsel (now a judge of the Court).
Reasons for Striking Expert Evidence
The plaintiffs served and relied on an expert report of a
gastroenterologist in support of their application for
certification of the proposed class action. Specifically, they
relied on that report as some basis in fact for a causation common
issue that underpinned all other common issues. The expert opined
that it was probable the Medicine could cause IBD in some
patients.
The defendants brought an application to strike the plaintiffs'
expert evidence on a number of grounds, namely that:
- He did not have the expertise to give the opinions expressed in his report.
- His evidence was partisan and not objective.
- His evidence was not reliable because his methodology was incomplete, not scientifically valid and not consistent with generally accepted scientific methods for assessing causation.
The judge hearing the motion agreed that the expert evidence was
inadmissible.
The Court discussed the two-stage analysis for admissibility of
expert evidence set out in White Burgess Langille Inman v. Abbott and
Haliburton Co. (White Burgess). The courts are not to
weigh competing expert evidence at certification. Therefore, the
Court concluded that it should not, on a certification application,
consider the second stage discretionary gatekeeper analysis.
However, the Court considered admissibility of the opinion under
all aspects of the first stage of the White Burgess test.
Ultimately, the Court granted the defendants' application to
strike on the grounds that the expert was not properly qualified to
give the causation opinion in his report. While the Court
recognized his experience as a treating physician and his general
gastroenterology knowledge, it did not accept that he was an expert
in the particular issues on which he opined, namely the cause and
pathology of IBD. His expertise was in diagnosis and treatment of
IBD, not causation. The Court rejected the plaintiffs' argument
that the threshold for qualification of a proposed expert is lower
in the certification context than in other cases.
The Court also noted that the proposed expert did not, in coming to
his opinion, take the necessary steps to use his medical training
to develop expertise on the cause of IBD. In particular, his review
of a subset of articles on the issue provided by plaintiffs'
counsel did not make him an expert.
Reasons for Denying Certification
The Court declined to certify Graham on the primary grounds that
the plaintiffs had failed to establish an evidentiary basis for a
causal link between the Medicine and IBD. This was a necessary
element of each of the plaintiffs' asserted causes of action
and proposed common issues.
The Court also found that the plaintiffs had failed to demonstrate
a workable methodology for determining loss on a class-wide basis.
The Court's decision in its result echoed an earlier decision
of the Quebec Superior Court in Lebrasseur v. Hoffmann-La Roche
Limitée. The decision denied an application to
authorize a Quebec class proceeding on behalf of a similar class of
persons who had consumed the Medicine and suffered from IBD. In
that case, the Court cited a lack of evidence to establish a causal
relationship between the Medicine and the Quebec plaintiff's
alleged Crohn's disease.
The Court's decision to strike the proposed expert's
evidence (as summarized above) was critical to its decision.
According to the Court, his evidence would have provided a basis to
certify the proposed issue regarding the alleged link between the
Medicine and IBD had it been accepted.
The Court rejected the plaintiffs' arguments that a basis in
fact for the common causation issue was provided by:
- The scientific literature on its own.
- Health Canada's adverse reaction reports.
- A statement in one of the defendants' product monographs that the Medicine "has been temporally associated with inflammatory bowel disease."
The Court then accepted that the defendants' own expert
evidence had shown that there was no basis in fact for the
plaintiffs' proposed common causation issue.
Separately, the Court found that if the proposed class action had
succeeded, it would have narrowed the class to Saskatchewan
residents only. This was partly because class counsel had failed to
give proper statutory notice of the certification application to
counsel in parallel class actions in other provinces. Notably,
since the Graham decision was rendered, all of those other cases
have also been dismissed or discontinued (see, for example, Patkus v. Hoffmann-La Roche et
al.).
Conclusion and Implications
The Court's decision in Graham highlights that expert
evidence on a certification motion must meet the threshold
requirements for admissibility under the first stage of the White
Burgess analysis. It also highlights that other evidence alleged to
provide a basis in fact for common causation issues must be
carefully scrutinized to determine if it truly supports such an
assertion or something more limited.
The defendants' expert evidence can be considered by the court
and determinative at certification in some cases even if it may not
be weighed. The case also highlights the important screening role
of the judge at the certification stage. Finally, it reaffirms the
importance of establishing evidence of class-wide causation in
cases where causation is a necessary element of a cause of action
or proposed common issue.
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