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What follows is a guest post about a recent favorable decision in Canadian drug/device litigation.  Unlike in the USA, product liability class actions cases are often certified in Canada.  Thus, any pro-defense decision is good news indeed.  Robin Linley and Jessica Lam of Blake, Cassels & Graydon LLP in Toronto have been good enough to provide us what they call a “brief and selective summary” of Wise v. Abbott Laboratories Limited, No. CV-16-550747CP, 2016 ONSC 7275 slip op. (Ont. Super. Nov. 23, 2016), which in typical Canadian fashion, takes 85 pages to reach a result that our clients will like.  As always, our guest posters are 100% responsible for their content, and thus entitled to 100% of the credit or blame, as it may be, for what appears below.


In a recent product liability class action decision, Wise v. Abbott Laboratories Limited, No. CV-16-550747CP, 2016 ONSC 7275 slip op. (Ont. Super. Nov. 23, 2016) (“Wise“), the Ontario Superior Court of Justice (“Court”) granted the defendants’ motion for summary judgment in advance of the certification motion, concluding that there was no genuine issue requiring a trial because there was insufficient evidence of general causation.  The decision highlights the potential for defendants to use summary judgment to resolve a class action before certification in appropriate cases.

The representative plaintiff brought a proposed class action against Abbott alleging that its testosterone replacement product, for the treatment of hypogonadism (testosterone deficiency) in men, caused serious cardiovascular (CV) events.  The plaintiff further alleged that the drug had no therapeutic benefit and that class members should be compensated for their economic losses incurred in purchasing the product. The plaintiffs also sought recovery from the defendant based on allegations of failure to warn and the novel claim of “waiver of tort”.

Abbott submitted that the plaintiff’s claims should be dismissed on the grounds that they could not prove general causation, which was a constituent element in all of the plaintiff’s product liability claims, and that ultimately, there was insufficient evidence of a “genuine issue requiring a trial”.

Notably, the parties filed more than 11,000 pages in materials for the motion, including 22 expert reports from nine experts.  There were six days of oral argument.  A pro-plaintiff cynic might think that 11,000 pages of evidence, 22 expert reports and the need for 6 days of oral argument would spawn at least one genuine issue requiring a trial, but apparently not!  Summary judgment is not decided by the kilo


Is the Case Appropriate for Summary Judgment?

The Court held that at the heart of the “no genuine issue requiring a trial” test for granting summary judgment is the need to undertake a “judicial gut check.”  Justice Perell concluded that the case at bar was an appropriate case for summary judgment because he had “no doubt” that he had sufficient evidence on all relevant points and both sides had put forward sufficient evidence to make their respective arguments about the dispositive issues.

Is There a Genuine Issue Requiring a Trial About General Causation?

The defendants relied heavily on the Canadian landmark decision in Andersen v. St. Jude Medical, Inc., 2012 ONSC 3660, slip op. (Ont. Super. June 26, 2012) (“St. Jude“) (subject of another guest post here) to argue that a minimum statistical risk ratio of 2.0 must be demonstrated in order to establish general causation.  The Court, however, disagreed.  First, the Court distinguished St. Jude by holding that the 2.0 risk ratio in St. Jude arose in the context of the court’s discussion of specific causation, which the Court held “has little to do with the risk ratio threshold for proof of general causation.”  Nor was the Court prepared to accept the defendant’s argument that legal proof of general causation should be confined to statistical analysis alone.

Despite this, the Court found on the evidence that the plaintiff had failed to establish general causation on a balance of probabilities.  None of the plaintiff’s experts were prepared to commit to an opinion that the association between the product at issue and serious CV events was causal, and the plaintiff’s experts admitted that “association” does not establish “causation.”  Furthermore, the Court found that the case at bar was not a case that permitted an inference of general causation to be drawn from the evidence of association.

Is There a Genuine Issue Requiring a Trial About the Duty to Warn?

The Court further held that an association between a product and a dangerous condition may give rise to a duty to warn on the part of a manufacturer even if the association has not been demonstrated to be causal.  While the Court did not make a finding about whether or not the defendants breached a duty to warn (while noting that the evidence tended to favour the view that the warnings were adequate), the Court nonetheless held that the plaintiff’s failure to warn claim must still fail, because even assuming a breach of the standard of care, they failed to prove general causation.  A defendant’s failure to warn that causes no harm is not negligent.

Unjust Enrichment and Pure Economic Loss

As a legal matter, the Court further found that the plaintiffs’ unjust enrichment claim failed on the basis that there is no pure economic loss for selling worthless or shoddy goods that are not dangerous for the uses for which they are sold.  The defendants’ product was not a shoddy good and any of the dangers in its use, insofar as they were known to exist, had been disclosed in the warnings provided.

Ultimately, the decision in Wise demonstrates that, in appropriate cases, summary judgment may be an effective tool for defendants north of the border to resolve a class proceeding.