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When it comes to legal developments in the nation to our north, we are happy to defer to actual Canadian lawyers. Here, we present a guest post from Ashley Paterson and Gina Azer of Bennett Jones. This is Ashley’s second guest post, which means she is close to qualifying for the coveted FOB (friend of the Blog) designation. 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. 

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The talc saga continues in the Great White North. A Canadian court (in British Columbia) accepted a plaintiff’s second attempt to show a workable causal link methodology between talc powder and ovarian cancer and certified a national class action in Ennis v. Johnson & Johnson, 2024 BCSC 1759.

For those unfamiliar with the Canadian class action regime, like in the U.S., proposed class actions must be certified in order to proceed. In British Columbia, the test for certification is as follows (and is relatively similar throughout Canada):

the court must certify a proceeding as a class proceeding if all of the following requirements are met:

a. the pleading discloses a cause of action;

b. there is an identifiable class of two 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; and

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.

First, a little background on the Ennis v. Johnson & Johnson action. The plaintiff first moved unsuccessfully to have the class action certified in February 2020. In November 2020, the British Columbia court released its decision [2020 BCSC 1746] refusing to certify the action due to insufficiency of the evidence linking the use of talc powder to ovarian cancer. The plaintiff had attempted to link talc powder use to all ovarian cancers. In their response, the defendants opposed certification in part on the basis that there was insufficient evidence of a common biological or causal mechanism for either epithelial or non-epithelial ovarian cancers. Though this point could have been fatal to the plaintiff’s certification application at the time, the court granted leave to the plaintiff to obtain more evidence and redefine the class definition accordingly.

With leave, the plaintiff returned to court years later with more evidence and an amended claim. In the plaintiff’s amended claim, the putative class was narrowed to all Canadian persons (excluding Quebec) that used talc powder and subsequently developed epithelial ovarian cancer. The amendment meant that the evidence at the return of the certification application would need to show a basis in fact for a causal link between exposure to talc powder and epithelial ovarian cancer. The court held that the plaintiff’s reliance on the new evidence of Dr. Cramer, an epidemiologist and gynecologist from Harvard (see here for where he got knocked out in similar U.S. litigation), was sufficient to bring them across the certification line. Of course, the merit of the evidence itself is not tested at the certification stage. And here, it was enough to meet, in the court’s words, “the very low bar of demonstrating a methodology that suggests Baby Powder is a contributing cause to the development of epithelial ovarian cancer in some individuals.”

In response to the evidence of Dr. Cramer, the defendants pointed to the evidence of their expert which indicated that five different types of epithelial ovarian cancers were at issue, all with different causal mechanisms, some of which are independent of talc powder. The defendants also argued that Dr. Cramer’s proposed methodology would not advance the class members’ claims since individual issues, such as personal histories, circumstances, histological factors, and characteristics would dominate resolution of the common issues. But the court refused to weigh the conflicting expert evidence at the certification stage and instructed the plaintiff to rephrase the common question to exclude epithelial ovarian cancers that are not linked to talc. As a result, putative class members will be required to determine whether they were diagnosed with a non-talc related epithelial ovarian cancer in order to know whether they are class members.

The defense further challenged Dr. Cramer’s methodology by noting that it failed to provide “some evidence” (another way of saying “some basis in fact,” the evidentiary standard for the certification criteria other than a pleaded cause of action) of a causal link between talc and any epithelial ovarian cancer and failed to conclude that one biological methodology can be linked to all types of epithelial cancers. The defendants highlighted that Dr. Cramer’s methodology failed to use the benchmark odds ratio of 2.0 to show the alleged causal link. Dr. Cramer acknowledged this deficiency and admitted to formulating his own odds ratio after accounting for a wide range of individual factors in his research study subjects. The defendants responded that a methodology reliant on individual assessments at each instance could not be applicable to the entire class. However, notwithstanding Dr. Cramer’s 1.29 odds ratio and his consideration of a multitude of individual factors, the court accepted his methodology because, in theory, it could establish a reliable measure of the general association between the use of talc powder and epithelial ovarian cancers. In other words, the combination of the odds ratio with other factors was enough to meet the standard for a workable methodology for class certification purposes.

With respect to the fourth branch of the certification test, whether a class proceeding is the preferable procedure to advance the action, the defendants argued that individual class members would need to show how the risk materialized in the context of their specific cancer, and that Dr. Cramer himself gave evidence that he would need to consider each individual class member’s medical history to show specific causation. Despite this, the court held that Dr. Cramer’s evidence showed the required general causal relationship and answering the question of whether talc powder causes epithelial ovarian cancer would advance the claims of all class members, whether affirmatively or negatively.

A significant moving piece in the background of all this was that unlike the FDA, Health Canada published its screening assessment of talc under the Chemicals Management Plan, finding that the latest scientific evidence supports that “inhaling loose talc powders and using certain products containing talc in the female genital area may be harmful to human health.”

To conclude, certification of this case (in particular, on the second try) reinforces the need for plaintiffs to show a plausible and credible methodology for establishing general causation on a class-wide basis. In this case, evidence of such a methodology was apparently enough to outweigh the clear evidence (from the plaintiff’s expert!) that individualized assessments would be required. The decision also reinforces the challenges faced by defendants in responding to such evidence without creating the dreaded “battle of the experts” that often leads Canadian courts to certify cases since conflicting expert evidence is not to be addressed at the certification stage.