This post discusses a Vioxx case, and Bexis’ tongue is thus tied. The following post was written by Herrmann alone:
Earlier this year, in a post cleverly titled, “Oy, Canada,” we deplored the fact that apparently no Canadian trial court had ever denied a motion to certify a class action.
We’re pleased to report that the times they are a-changin’. Civilization has arrived in our neighbor to the north.
Last week, the Court of Appeal for Saskatchewan [it’s not just a blog; it’s a spelling lesson, too!] reversed a trial court’s decision to certify a class of certain Canadian consumers of Vioxx. Merck Frosst Canada Ltd. v. Wuttunee, 2009 SKCA 43, slip op. (Court of Appeal Mar. 30, 2009) (click here to read the opinion and weep for joy).
After some preliminary skirmishing, the Vioxx consumers were pursuing claims under Canada’s Consumer Protection Act, Competition Act, and common law of negligence, battery and deceit. The trial judge (who has since been elevated to the Chief Justice of Saskatchewan) certified a class of Vioxx purchasers or consumers who fell into one or more of eight subclasses and included those seeking restitution for alleged ineffectiveness of Vioxx, others seeking the difference in purchase price between Vioxx and less expensive drugs in its class, and those who claimed to have suffered cardiovascular or gastrointestinal injuries. For good measure, the court certified a nationwide Canadian class. Id. at 6-8.
The trial court certified as common issues the questions of general medical causation, Merck’s knowledge, product defect, failure to warn, misrepresentation, and punitive damages. Id. at 9. And here you thought American class action law was dangerous!
But the Saskatchewan Court of Appeal saw the light: “[T]he most intractable difficulty with this action lies in the diversity of claims sought to be advanced on a common basis, and in the related question of whether such an action is manageable as a class action.” Id. at 25.
The appellate court found that the trial court’s description of the certified issues did nothing more than give “the impression of commonality, where commonality does not in fact exist,” and that the issues presented “a myriad of questions, susceptible to different answers in relation to each of the risks or defects of Vioxx alleged” such that “all semblance of commonality is lost.” In short, “the fragmentation of the class into subclasses, together with the range and diversity of claims asserted by members of the subclasses against the appellant, have together posed an insurmountable challenge to the quest for commonality in relation to the proposed common issues.” Id. at 77.
In addition to thinking about what Americans would call “commonality,” the court also addressed what we’d call “manageability.” The “complexity would in this case defeat the requirement that a class action be a fair, efficient and manageable method of advancing the claims of class members.” Id. at 78.
Because the court had decertified the class on other grounds, the court chose not to address the question of the propriety of multi-province or nationwide class actions. Id. at 79-80.
This ruling does not eliminate all certified Vioxx class actions in Canada, because an Ontario-certified class (national in scope, but excluding Saskatchewan and Quebec) and a Quebec-only certified class action remain pending.
But this is a start.
God save the Queen!