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Citation:
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2012 BCSC 1804
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Date: 20121203
Docket: S081441
Registry: Vancouver
Between:
Meah Bartram, and
Infant,
by her Mother and
Litigation Guardian, Faith Gibson,
and the said Faith
Gibson
Plaintiffs
And
GlaxoSmithKline
Inc. and GlaxoSmithKline UK Limited
Defendants
Before: The Honourable Mr. Justice N. Smith
Reasons for
Judgment
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Counsel for Plaintiffs:
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D.M. Rosenberg,
Q.C.
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Counsel for Defendants:
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W.W.J.G. McNamara,
T.J. Walsh, R.C.
Sutton
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Place and Date of Trial/Hearing:
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Vancouver, B.C.
October 1, 2,
2012
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Place and Date of Judgment:
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Vancouver, B.C.
December 3,
2012
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[1] The plaintiffs seek
certification of a class action against the manufacturer of an antidepressant
drug that is alleged to have caused birth defects in children whose mothers used
it while pregnant. They say the defendant knew or ought to have known of the
risk and failed to provide adequate and timely warning to doctors prescribing
the drug and to the general public.
[2] According to the
statement of claim, the infant plaintiff Meah Bartram was born on September 14,
2005, with a ventricular septal defect--in simple terms, a hole in her heart.
Her mother, the adult plaintiff Faith Gibson, was first prescribed the
antidepressant Paxil in December, 2002, and continued to take it throughout her
pregnancy.
[3] Paxil
is the trade name for a drug, also known as paroxetine, that belongs to a
category of antidepressant medications called selective serotonin reuptake
inhibitors ("SSRIs"). The defendant GlaxoSmithKline Inc. (“GSK”) manufactures, markets and sells Paxil throughout Canada.
[4] Information suggesting
an association between the use of Paxil in pregnancy and cardiovascular defects
in newborns was first published by GSK shortly after Meah Bartram was born, but
the plaintiffs allege that GSK knew or ought to have known of the risk before
then. Ms. Gibson says in an affidavit that if she had been
aware that there were any possible consequences to her child from taking Paxil,
she would have taken a different anti-depressant or none at all.
[5] The plaintiffs ask that
Ms. Gibson be appointed representative plaintiff on behalf of a class defined
as:
any person in Canada, born with cardiovascular defects,
to women who ingested Paxil while pregnant, and the mothers of those
persons.
[6] Paxil
was first approved for use in Canada in 1993, and is currently approved for
treatment of major depressive disorder, panic disorder, social phobia/social
anxiety disorder, obsessive-compulsive disorder, generalized anxiety disorder
and post-traumatic stress disorder.
[7] The manufacturer of a
prescription drug is required to publish a product monograph. This is a scientific document that describes in detail the
properties, claims, indications and conditions of use of a drug, as well as
information that may be required for optimal, safe and effective use. It is
regarded as "labeling" in Canada and its wording is approved as part of the
process by which Health Canada approves the drug for sale in this country. The
product monograph is available for reference by doctors who prescribe the
drug, as well as by members of the public. It is often revised,
with Health Canada's approval, to reflect new information.
[8] The original Paxil
monograph included the statement:
Pregnancy and Lactation:
Although animal studies have not shown any teratogenic or selective embryotoxic
effects, the safety of PAXIL in human preganancy has not been established. PAXIL
should not be used during pregnancy unless the potential benefit to the patient
outweighs the possible risk to the fetus.
[9] A revised monograph
issued in September, 2004, repeated that statement, but also reported
respiratory and other complications requiring prolonged hospitalization of some
newborns who had been exposed to Paxil during the third trimester of pregnancy.
It added that physicians treating a patient with Paxil during the third
trimester should “carefully consider the potential risks and benefits of
treatment.”
[10] GSK’s first published
reference to the kind of condition at issue in this case came in a letter it
sent to physicians and other health professionals dated September 29, 2005--two
weeks after the birth of the infant plaintiff. That document referred to
preliminary results of an epidemiological study showing an increased incidence
of cardiovascular defects, most commonly ventricular septal defects, in babies
born to women who had taken Paxil or similar drugs during the first trimester.
The letter recommended that doctors “carefully evaluate this new information
when considering the use of paroxetine in women who are pregnant or planning
pregnancy.”
[11] Further
information was published in the following months and on February 3, 2006, the
product monograph was amended to read, in part:
Pregnant Women and Newborns: Epidemiological
studies of pregnancy outcomes following maternal exposure to antidepressants in
the first trimester have reported an increase in the risk of congenital
malformations, particularly cardiovascular (e.g. ventricular and atrial septal defects),
associated with the use of paroxetine. The data suggest that the risk of
having an infant with a cardiovascular defect following maternal paroxetine
exposure is approximately 1/50 (2%), compared with an expected rate for such
defects of approximately 1/100 (1 %) infants in the general population. In
general, septal defects range from those that are symptomatic and may require
surgery, to those that are asymptomatic and may resolve spontaneously.
Information about the severity of the septal defects reported in the studies is
not available.
If a patient becomes pregnant while taking
PAXIL®, or intends to be become pregnant, she should be informed of the current estimate
of increased risk to the fetus with PAXIL® over other antidepressants. Examinations of
additional databases, as well as updated analyses, may result in changes
to the current risk estimates. Consideration should be given to switching to
other treatment options, including another antidepressant or non-pharmaceutical
treatment such as cognitive behavioral therapy. Treatment with PAXIL® should
only be continued for an individual patient, if the potential benefits outweigh
the potential risks…
Initiation of
paroxetine: For women who intend to become pregnant, or are in their first
trimester of pregnancy, initiation of paroxetine should be considered only after
other treatment options have been evaluated.
That statement continues to appear in the
product monograph.
[12]
In 2003, Health Canada approved a controlled
release formulation of paroxetine under the name Paxil CR. The product monograph
originally contained the same statement about use in pregnancy as in the first
Paxil monograph and has evolved in the same way.
[13]
The certification of a proceeding as a class
action is governed by s. 4 of the Class Proceedings Act, RSBC 1996, c.
50, s. 4 (CPA) which reads:
4 (1) The court must certify a proceeding as a class
proceeding on an application under section 2 or 3 if all of the following
requirements are met:
(a) the pleadings disclose a cause of
action;
(b) there is an identifiable class of
2 or more persons;
(c) the claims of the class members
raise common issues, whether or not those common issues predominate over issues
affecting only individual members;
(d) a class proceeding would be the
preferable procedure for the fair and efficient resolution of the common
issues;
(e) there is a representative
plaintiff who
(i) would fairly and adequately
represent the interests of the class,
(ii) has produced a plan for the
proceeding that sets out a workable method of advancing the proceeding on behalf
of the class and of notifying class members of the proceeding, and
(iii) does not have, on the common
issues, an interest that is in conflict with the interests of other class
members.
(2) In determining whether a class proceeding would be the
preferable procedure for the fair and efficient resolution of the common issues,
the court must consider all relevant matters including the following:
(a) whether questions of fact or law
common to the members of the class predominate over any questions affecting only
individual members;
(b) whether a significant number of
the members of the class have a valid interest in individually controlling the
prosecution of separate actions;
(c) whether the class proceeding
would involve claims that are or have been the subject of any other
proceedings;
(d) whether other means of resolving
the claims are less practical or less efficient;
(e) whether the
administration of the class proceeding would create greater difficulties than
those likely to be experienced if relief were sought by other means.
[14] The plaintiffs seek orders
certifying the following issues as common issues:
a) Did Paxil cause or
increase the likelihood of birth defects?
b) Is Paxil unfit for its intended purpose?
c) Did the Defendant, GLAXOSMITHKLINE INC. fail to warn class
members and/or Health Canada of the true risk of birth defects caused by using
Paxil?
d) Did the Defendant, GLAXOSMITHKLINE INC. breach a duty of
care to class members and if so, when and how?
e) Does the conduct of Defendant, GLAXOSMITHKLINE INC.
warrant an award of punitive damages, and if so, what amount of punitive damages
should be awarded?
f) Did the Defendant, GLAXOSMITHKLINE INC.'s solicitations,
offers, advertisements, promotions, sales and supply of Paxil for personal use
by class members fall within the meaning of "consumer transactions" in the
Business Practices and Consumer Protection Act [SBC 2004 c. 57] (the
"BPCPA")?
g) With respect to the sales in British Columbia of Paxil to
class members for their personal use, was the Defendant, GLAXOSMITHKLINE INC. a
"supplier" as defined in the BPCPA?
h) Are the class members "consumers" as defined by the
BPCPA?
i) Did the Defendant, GLAXOSMITHKLINE INC. engage in
conduct, as alleged in the
Statement of Claim, that amounted to deceptive acts or practices contrary
to the BPCPA?
5. if
the Court finds that the Defendant, GLAXOSMITHKLINE INC.' s conduct was contrary
to the BPCPA should a monetary award be made in favour of the class and, if so,
in what amount?
[15] The CPA came into
force in 1995. In Stanway v. Wyeth Canada Inc., 2012 BCCA 260 at
para 3, the Court of Appeal said that, after 17 years of experience, “certain
issues have been settled and guiding principles (including those expressed in
the Act) have emerged” to determine applications for certification. That
clarification process should by now have made many certification applications
less complex and more capable of expeditious resolution. But one would not know
that from this application, in which the parties have seen fit to provide the
court with more than 80 case authorities from this and other Canadian
jurisdictions.
[16] Notwithstanding the mass of
authority with which I have been provided, the guiding principles that are
binding on me were succinctly summarized in Stanway:
[4] In Hollick v. Toronto (City), 2001 SCC 68, [2001] 3
S.C.R. 158 at para. 15, Chief Justice McLachlin discussed three important
advantages of class actions over a multiplicity of individual suits:
15 ... First, by aggregating similar
individual actions, class actions serve judicial economy by avoiding unnecessary
duplication in fact-finding and legal analysis. Second, by distributing fixed
litigation costs amongst a large number of class members, class actions improve
access to justice by making economical the prosecution of claims that any one
class member would find too costly to prosecute on his or her own. Third, class
actions serve efficiency and justice by ensuring that actual and potential
wrongdoers modify their behaviour to take full account of the harm they are
causing, or might cause, to the public.
[5] In light of these advantages, McLachlin C.J.C. instructed
courts not to take “an overly restrictive approach to the legislation, but
rather [to] interpret the Act in a way that gives full effect to the benefits
foreseen by the drafters” (at para. 15).
[6] At para. 16, she further underscored the limited nature of
the inquiry on certification:
[16] ... the certification stage is
decidedly not meant to be a test of the merits of the action: see Class
Proceedings Act, 1992, s. 5(5) (“An order certifying a class proceeding is
not a determination of the merits of the proceeding”); see also Caputo v.
Imperial Tobacco Ltd. (1997), 34 O.R. (3d) 314 (Gen. Div.), at p. 320 (“any
inquiry into the merits of the action will not be relevant on a motion for
certification”). Rather the certification stage focuses on the form of
the action. The question at the certification stage is not whether the claim is
likely to succeed, but whether the suit is appropriately prosecuted as a class
action ...
[7] Although the certification stage does not entail a test of
the merits of an action, the representative plaintiff must still establish an
evidentiary basis for the certification requirements provided in the Act,
other than the requirement that the pleadings disclose a cause of action:
Hollick, supra, at para. 25; Ernewein v. General Motors of
Canada Ltd., 2005 BCCA 540 at para. 25, 46 B.C.L.R. (4th) 234. [...]
[8] Although the determination of common issues often proves
contentious, they need not be determinative of liability for certification. The
resolution of a single common issue does not have to provide a sufficient basis
for relief. For common issues to be certifiable, they need only be “issues of
fact or law that move the litigation forward”: Campbell v. Flexwatt Corp.
(1997), 44 B.C.L.R. (3d) 343 at para. 53, 98 B.C.A.C. 22 (C.A.), per
Cumming J.A., for the Court.
[9] In addition, commonality
should be approached purposively, in light of the underlying question of whether
class proceedings will avoid duplication of fact-finding or legal analysis:
Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at para.
39, [2001] 2 S.C.R. 534, per McLachlin C.J.C.
[17] The issues in Stanway
were very similar to those in this case. The plaintiff in Stanway alleged
that hormone therapy drugs prescribed to women to treat the symptoms of
menopause caused breast cancer. This case differs in that Paxil was not
prescribed only to women, much less only to pregnant women, so the alleged
danger applies only to a small segment of Paxil’s market. This case also alleges
a closer temporal connection between any individual’s use of the drug and the
injury. Injuries discovered at or shortly after birth are alleged to be related
to use of Paxil in the first trimester of pregnancy.
Cause of Action
[18] The first requirement for
certification, set out in s. 4(1)(a) of the CPA, is that the pleadings
disclose a cause of action. The statement of claim, which was filed under the
former Rules of Court, alleges:
21. As a result of the teratogenetic
effect of Paxil, it was inherently dangerous when taken by pregnant
women.
22. The Defendants at all material
times owed a duty of care to the Plaintiffs to:
a.
ensure that Paxil was fit for its intended
or reasonably foreseeable use;
b.
conduct appropriate testing to determine
whether and to what extent ingestion of Paxil posed serious health risks
to pregnant women, including the risk of serious adverse complications for newborn children of
mothers who ingest Paxil during pregnancy; and
c.
warn the Plaintiff, Faith Gibson and her physicians that the ingestion of Paxil
carries the risk of serious adverse complications for newborn children of
mothers who ingest Paxil during pregnancy.
23. The
Defendants negligently breached their duty of care, particulars of which are set
out in the following paragraph.
[19] The following paragraph of
the statement of claim lists 17 particulars of negligence, including failure to
adequately test Paxil, failure to conduct adequate follow up studies, failure to
provide complete and accurate information to Health Canada, failure to warn
physicians and patients of the risk of cardiovascular complications and
misrepresentation of the state of research and medical literature.
[20] Leaving aside the question
of whether the plaintiffs will be able to prove any or all of those allegations,
there can be no doubt that they state a cause of action in negligence. In
Hollis v. Dow Corning Corp., [1995] 4 SCR 634, the Supreme Court of
Canada said at para 23:
[23] ... Medical products
are often designed for bodily ingestion or implantation, and the risks created
by their improper use are obviously substantial. The courts in this country have
long recognized that manufacturers of products that are ingested, consumed or
otherwise placed in the body, and thereby have a great capacity to cause injury
to consumers, are subject to a correspondingly high standard of care under the
law of negligence. Given the intimate relationship between medical products and
the consumer's body, and the resulting risk created to the consumer, there will
almost always be a heavy onus on manufacturers of medical products to provide
clear, complete and current information concerning the dangers inherent in the
ordinary use of their product. [Citations omitted.]
[21] Although the alleged
particulars of negligence cover a broad range of conduct, I do not accept the
defendant’s argument that the claim is “unfocussed” or that it improperly
combines distinct forms of negligence in a way that will make it difficult to
determine how each claim relates to the common issues. Not yet having had the
advantage of discovery, which may assist in narrowing the claim, the plaintiffs
had no choice but to state particulars that cast as wide a net as possible.
[22] The plaintiff’s also allege
a separate cause of action under the Business Practices and Consumer
Protection Act, SBC 2004, c. 2. (BPCPA) The relevant provisions of
that legislation are:
4 (1) In this Division:
"deceptive act or practice" means, in relation to a consumer
transaction,
(a) an oral, written, visual,
descriptive or other representation by a supplier, or
(b) any conduct by a supplier
that has the capability, tendency or effect of deceiving or
misleading a consumer or guarantor;
"representation" includes any term or form of a contract,
notice or other document used or relied on by a supplier in connection with a
consumer transaction.
(2) A deceptive act or practice by a supplier may occur
before, during or after the consumer transaction.
(3) Without limiting subsection (1), one or more of the
following constitutes a deceptive act or practice:
(a) a representation by a supplier
that goods or services
(i) have sponsorship, approval,
performance characteristics, accessories, ingredients, quantities, components,
uses or benefits that they do not have,
(ii) are of a particular standard,
quality, grade, style or model if they are not,
...
[23] In Stanway, the Court
of Appeal confirmed that non-disclosure of a material fact can ground a cause of
action under the BPCPA and upheld the trial judge’s certification of a
claim against a drug manufacturer. For the purposes of this issue in the
certification application, I find this case to be indistinguishable from
Stanway.
Identifiable Class
[24] Section 4(1)(b) of the
CPA requires an identifiable class of two or more persons. Evidence put
forward by the defendant shows that between 1993 and 2009, almost six million
Paxil prescriptions were written for women of child-bearing age. One study has
identified 20 adverse cardiovascular effects in newborns who had been exposed to
Paxil in utero. A similar class action has been proposed in Saskatchewan but is
not proceeding. Counsel in that case deposes that his office was contacted by 42
women who were potential class members.
[25] Counsel for the defendant
argues that the class proposed would include individuals who used Paxil over too
long a period, during which the state of knowledge and the standard of care were
evolving. A similar argument was rejected in Stanway:
[60] Wyeth submits that the 27-year class period is
unmanageable in the context of the changing scientific knowledge regarding the
risks of hormone therapy. Wyeth contends that there is no commonality because
its duty of care must be assessed at a specific period of time. Wyeth submits
that the evolving medical knowledge and the concomitant changing prescribing
information precludes a finding of a single common standard of care for the
entire 27-year class period.
[61] There may well be
challenges in assessing the duty of care (and the standard of care) over the
27-year class period. Similar concerns arose in Rumley, but the Supreme
Court of Canada concluded that the common question was capable of a “nuanced
answer”. It is too early to say in this case what shape that answer might take,
but one obvious potential solution would be the development of sub-classes
defined by reference to the changing product monographs. If the class period
proves to be truly unmanageable, it is open to the court to decertify the
action. These are refinements that can be addressed as the litigation
progresses.
[26] In this case, the
plaintiff’s proposed class would cover a period from 1993, when Paxil first went
on the market, to date. That may not be the class that ultimately proceeds to
trial or that may be successful at trial. For example, even if the plaintiffs
prove that GSK failed to disclose what it knew or should have known, the
evidence may show a date before which GSK could not reasonably have had the
critical information and/or a date after which it made adequate disclosure. Such
a result would narrow the class period and disqualify many potential class
members, perhaps to the point where, as the defendant suggests, the class would
become vanishingly small. But in my view it is premature to speculate on such
matters and I find that on the evidence now before me, there is an identifiable
class.
The Proposed Common Issues
1) Did Paxil cause or increase the likelihood of birth defects?
[27] The parties have put forward
conflicting expert evidence on the issue of causation. The defendant relies on
the evidence of Dr. Edward Lammer, a pediatrician and medical geneticist, who
says that every woman has a three per cent chance of giving birth to a baby with
a congenital malformation. He adds that the causes of such malformations are
diverse, that no single agent can cause all of them and only about one per cent
of all major congenital malformations are caused by exposure to chemicals,
medications or radiation. He says the causative role of Paxil, if any, must be
determined on a case-by-case basis.
[28] The plaintiffs rely on the
evidence of an epidemiologist, Shira Kramer, who says there is a “consistent
body of epidemiological research” that establishes that Paxil causes
cardiovascular birth defects.
[29] It is neither necessary nor
appropriate on a certification application to weigh that evidence or to consider
the limitations of each witness’s expertise. In any case, GSK’s own published
material has acknowledged that epidemiological studies suggest that the use of
Paxil during pregnancy is associated with at least an increased risk of
cardiovascular defects in newborns.
[30] Authorities such as
Harrington v. Dow Corning Corp., 2000 BCCA 605, establish the distinction
between general and individual causation. In the context of this case, the
general causation question is whether Paxil is capable of causing cardiac birth
defects and, if so, which ones. That will depend on expert evidence that will be
applicable to the claim of all class members.
[31] If the plaintiffs fail to
prove general causation, that will be the end of the matter. If they succeed, it
will then be up to each individual plaintiff to show that the injury that
occurred was of a kind that can be caused by Paxil and was in fact one that
would likely not have occurred but for the use of Paxil.
[32] In an individual action, a
plaintiff probably could not succeed by merely showing that the use of Paxil
increased the risk of injury. In Clements v. Clements, 2012 SCC 32, the
Supreme Court of Canada re-affirmed the primacy of the “but for” test in proving
causation and confined the alternate “material contribution” test to cases
involving multiple negligent defendants where it is not possible to prove which
one caused the injury. However, dicta in Clements may leave open
an argument that different considerations apply in cases involving multiple
plaintiffs, such as class actions.
[44] This is not to say
that new situations will not raise new considerations. I leave for another day,
for example, the scenario that might arise in mass toxic tort litigation with
multiple plaintiffs, where it is established statistically that the defendant's
acts induced an injury on some members of the group, but it is impossible to
know which ones.
[33] Depending on what findings
the court makes on some of the other common issues, each individual adult
plaintiff may also have to prove that a reasonable person in her position,
having been informed of the risk of taking Paxil and of the countervailing risks
of changing or discontinuing treatment, would have stopped taking Paxil.
[34] One should not minimize the
difficulties each plaintiff may face in proving individual causation, but those
issues will be irrelevant without a finding on general causation, which is
clearly a common issue.
[35] I would, however, narrow the
question to whether Paxil causes or increases the likelihood of cardiovascular
birth defects. That is the type of defect alleged in the case of the proposed
representative plaintiff and is the only type referred to in the proposed class
definition.
2) Is Paxil unfit for its intended purpose?
[36] There is no evidence that
Paxil is generally unfit for its intended use in treating depression and other
psychiatric conditions. This case relates only to its use for a specific group
of patients. The question should more properly be phrased as whether Paxil is
unfit for use during pregnancy.
[37] That issue is inextricably
tied to the general causation issue. Whether Paxil is unfit for use during
pregnancy will depend on whether it is capable of causing cardiovascular birth
defects, which ones, and the magnitude of the risk. If the plaintiffs prove that
the risk was so great that Paxil should not have been given to any pregnant
women, such a finding will apply to all class members. On the other hand, if the
plaintiffs are only able to prove a failure to disclose a risk that had to be
balanced against other risks and benefits, it will be necessary for each class
member to prove that a reasonable person in her position would have stopped
taking Paxil.
3) Did GSK fail to warn class members and/or Health Canada of Paxil’s true risk?
[38] The essence of this issue
is--to use a popular formulation--“what did GSK know and when did it know it?”
The plaintiffs have produced evidence on this application that, at some point,
GSK became aware of and disclosed information that associated Paxil, at least on
a statistical basis, with an increased incidence of cardiovascular defects. The
question is whether the information published by GSK at any given time reflected
all that it knew or ought to have known, and whether the warnings it issued
could and should have been issued at an earlier date. Evidence on those points
is likely to be largely, if not entirely, within the control of GSK and would
only become available to the plaintiffs through the discovery process.
[39] The plaintiffs rely in part
on a transcript of testimony given by a witness in an American proceeding
relating to the times when, in the opinion of that witness, the danger was, or
should have been, known. The defendant objects to that evidence as hearsay and I
agree the transcript alone would not be admissible at trial. That does not
necessarily make the evidence inadmissible on a certification application, but I
do not need to decide the point because the evidence is unnecessary for present
purposes. The information that GSK itself made public, combined with the fact
that it alone controls the evidence of what else it may or may not have known
and when, constitutes a sufficient evidentiary basis at this stage of the
proceedings.
[40] The defendant relies on the
evidence of the Dr. Anthony Scialli, an obstetrician and gynecologist, who says
that many pregnant women must be treated for depression, and risk-benefit
considerations of whether to use Paxil will depend on each woman’s personal
circumstance and the nature of her psychiatric condition. That may be so, but
the threshold issue relating the adequacy and timeliness of information and
warnings about the safety of Paxil use during pregnancy will be the same for all
plaintiffs.
[41] All potential class members
and/or their treating doctors had to rely on the same published material. If
there was a point at which developing knowledge made that material incomplete,
misleading or inadequate, each class member may still have to separately prove
that she was pregnant after that point and that, if fully informed, she could or
would have safely stopped taking Paxil. However, that does not diminish the
commonality of the threshold issue.
4) Did GSK breach a duty of care to class members and, if so, when and how?
[42] This issue is linked to the
previous ones and, depending on what findings are made on the other issues, the
answer may be self evident. But for present purposes, I find it to be clearly a
common issue.
5) Punitive Damages
[43] In Stanway, the case
management judge certified a similar common issue and relied on Chalmers v.
AMO Canada Company, 2010 BCCA 560, where the Court of Appeal said:
[31] Although the ultimate
determination of the entitlement and quantification of punitive damages must be
deferred until the conclusion of the individual trials, it does not follow, in
my opinion, that no aspect of the claim of punitive damages should be certified
as a common issue. It is my view that the question of whether the defendants’
conduct was sufficiently reprehensible or high-handed to warrant punishment is
capable of being determined as a common issue at the trial in this proceeding
where the other common issues will be determined. The focus will be upon the
defendants’ conduct, and there is nothing in this case that will require a
consideration of the individual circumstances of the class members in order to
determine whether the defendants’ conduct is deserving of punishment. The
ultimate decision of whether punitive damages should be awarded, and the
quantification of them, can be tried as a common issue following the completion
of the individual trials.
[44] I am satisfied that the same
approach should be followed in this case and find the claim for punitive damages
to be a common issue.
Claims under the BPCPA
[45] The proposed issues under
the BPCPA deal with the same alleged representations, or “representations
by omission”, as the common issue of failure to warn. The plaintiffs rely on the
BPCPA to seek additional or alternate remedies. I adopt what was said by
the case management judge in Stanway v. Wyeth Canada Inc., 2011
BCSC 1057:
[61] The plaintiff asserts a statutory claim under the
BPCPA. The BPCPA concerns conduct and representations which a
supplier directs to the “world at large” in the marketing of its products as
opposed to specific interactions between a supplier and an individual customer.
The question of whether a representation is deceptive or misleading does not
require an individual enquiry: Wakelam v. Johnson & Johnson, 2009
BCSC 839 at para. 39.
...
[64] I agree with the plaintiff
that the objective nature of the statutory cause of action under the
BPCPA is suited for class treatment. The participation of individual
class members is not necessary to determine whether the defendants have breached
the statute.
Preferability
[46] Having found that common
issues exist, I am required by s. 4(1)(d) of the CPA to determine if a
class proceeding is the preferable procedure. The question is whether, in the
circumstances of this case, a class action would be preferable and, in
particular, whether it would be preferable to individual proceedings. Hollic
v. Toronto (City), [2001] 3 SCR 158. The Court of Appeal in Stanway
added:
[87] There can be no doubt that
the individual claims will face significant challenges of proof. The
multiplicity of causative factors in the development of breast cancer and the
role of learned intermediaries will certainly complicate the trial of individual
claims. However, there can also be no doubt that the determination of the common
issues will move the litigation forward, serve judicial economy, and improve
access to justice.
[47] The common issues will
require extensive discovery to determine the state of GSK’s knowledge at various
times, expert evidence on the general state of scientific knowledge and research
at those same times, and expert evidence on the general causation issue. I can
think of nothing that would be less efficient, more costly and more limiting of
access to justice than requiring each class member to separately obtain and
adduce the same evidence. Given the complexity and costliness of doing so, I
doubt that the issues raised could be litigated in any procedure but a class
action.
Representative Plaintiff
[48] I am satisfied that Ms.
Gibson is a representative plaintiff who can adequately represent the class. I
recognize that her claim may be broader than that of some class members in that,
as a British Columbia resident, she can advance a claim under the BPCPA.
However, given the large overlap in what must be proved in that claim and in the
negligence claim, I see no conflict with other class members. If, as the matter
proceeds, such a conflict becomes apparent, the court may appoint a second
representative plaintiff to represent class members outside the province.
[49] I am also satisfied that Ms.
Gibson has produced a case management plan that, while still general,
demonstrates proper consideration of how the action can proceed, and that can be
modified as necessary. The plan specifically provides for further hearings to
determine some matters in greater detail, such as the terms and manner of giving
notice to class members.
[50] The defendant objects to the
proposed management plan, in part because it fails to fully address how the
individual causation analysis is to be dealt with for each putative class
member. I do not consider it either realistic or necessary to consider that
issue in any detail at this stage. The individual issues will not need to be
addressed at all unless the plaintiff succeeds on the trial of the common
issues.
Conclusion
[51] The application to certify
this proceeding as a class proceeding is granted, with Ms. Gibson as the
representative plaintiff. The class definition and common issues will be as set
out in the notice of application, subject to the modifications I have made in
paras 35 and 36 above.
“N. Smith J.”