The federal right-to-try (“RTT”) adventure, which we chronicled here, and here, concluded not long ago with the final passage of S. 204, signed into law on May 30.  The final bill is not materially different from the house draft we analyzed earlier.  The final bill cleaned up some of the previous hastily-drafted

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.

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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”.


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What follows is a guest post about a recent favorable development in Canadian drug/device litigation.  We’re not Canadian lawyers, so we gladly outsource Canadian developments to those who are, such as these guys – Mike A. Eizenga, Gavin H. Finlayson and Ashley L. Paterson, of Bennett Jones LLP – who won the case in question.  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.  Here goes:

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Certification was denied in a recent proposed multiple-model product liability class action before the Ontario Superior Court of Justice in O’Brien v Bard Canada Inc

Class actions are more common in Canada than the US, due in large part to the low bar for certification of an action as a class proceeding in Canada.  Although all Canadian jurisdictions, with the exception of the three territories and the province of Prince Edward Island, have their own class proceedings legislation, the test for certification of an action as a class proceeding is substantially similar across all common law provinces. In Ontario, there is a five-part test under section 5(1) of the Class Proceedings Act, 1992, which must be met in order for an action to be certified:

(a) the pleadings must disclose a cause of action;

(b) there must be an identifiable class of two or more persons;

(c) the claims of the class members must raise common issues;

(d) a class proceeding must be the preferable procedure for the resolution of the common issues; and

(e) the representative plaintiff must fairly and adequately represent the class, have a workable litigation plan and have no conflicts with the other class members.


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What follows is a guest post about a significant class action decision in Canada.  Our guest poster today is Chris Horkins of the Canadian firm Cassels Brock & Blackwell LLP.   We haven’t changed a thing, not even Canadian-style spelling, so as always our guest poster gets all the credit, and any blame, for what

Several years ago we vacationed in Toronto. Back then, the Drug and Device Law Son split his time between hockey and videogames. He was a goalie, so, like his dad, he was always on defense. We visited the Hockey Hall of Fame, tap-danced on the glass floor in the CN Tower, had dinner at Wayne Gretzky’s restaurant, took in a Maple Leafs game, and wandered around the huge underground mall. With the sort of weather that reigns in the True North, an underground mall (really an entire underground city) makes a lot of sense. We noticed that many of the stores had a slogan on the walls: “The World Needs More Canada.” It’s hard to argue with that. Canada has pretty much everything we like (a nice standard of living, cultural offerings, and poutine), and not so much of those things we don’t like (crime, arrogance, and crocodiles).   How can you not admire a country that has given us Joni Mitchell, Bobby Orr, and Pamela Anderson, as well as the inventors of the zipper, basketball, and Trivial Pursuit?  And we look back with fondness at a college road trip adventure, when we drifted across the border to empty the town of Magog of Molson Brador.  (Bexis points out that Canada is also responsible for the rock groups Rush and BTO.  Hmmmm.  That fact might prompt us to reconsider the whole premise of this paragraph.)

Every once in a while we have the opportunity to blog about drug and device developments north of the border, involving matters also being litigated in the USA. As we said above, there’s a lot to like about Canada.  But its class action law is usually something we don’t like so much.  Canada’s application of class action certification rules is considerably more liberal than the corresponding rules here — excepting, perhaps, certain rogue counties in Southern Illinois.  Nevertheless, we are pleased to relay some good news from the Canadian courts.  Our friends at Covington, specifically Michael Imbroscio, sent us a decision by the Quebec Superior Court rejecting certification (what they call “authorization” in Quebec) of a proposed class action alleging that Accutane (isotretinoin) caused inflammatory bowel disease (IBD), in Lebrasseur v. Hoffman – La Roche Limitee, (Quebec Superior Court file no. 500-06-000512-109). The decision is in French, which we cannot read (though the Drug and Device Law Son says he can, and even has the grades to prove it), so we are trusting Covington’s summary.  But for those of you who claim the ability to read Proust and Moliere in the original, here is a copy of the Quebec court’s opinion.


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We’ve blogged before, occasionally, about drug/device developments north of the border.  Most of these developments have involved class action practice, where Canadian law is considerably more liberal than the corresponding rules here in the USA.

But there’s a point at which class actions fail even under Canadian law.  That point was recently reached in the parallel Seroquel litigation pending in Ontario.  We’re pleased to report that, in Martin v. AstraZeneca Pharmaceuticals PLC, No. 06-CV-314632CP, slip op. (Ont. Super. May 7, 2012), the court flatly rejected class certification.

Unlike the Canadian judiciary (the opinion is 78 pages long, single spaced), we’ll try to keep this report brief.

The class was huge and undifferentiated – “all persons” in Canada who “ever used Seroquel.”  Slip op. at ¶5.  Likewise, the alleged injuries were everything under the sun.  Id. ¶¶7-9.  The claims are the same that we typically see in the USA, a hodgepodge of inadequate warning, off-label promotion, and fraud on regulatory agency allegations.  Id. ¶¶11-13.  Their experts were also eye-rollingly familiar to US litigators, Laura Plunkett and William Wirsching.  Id. ¶¶26-28.  As often happens in the US, Plunkett was ruled incompetent to offer any medical opinions.  Id. ¶¶50.  More interestingly, since it’s part of her schtick, Plunket was also held incompetent to testify about Canadian regulations, since her only background involved the American FDA.  Id. ¶¶65-66.  Contrary to the plaintiffs’ apparent position, Canada is not simply an appendage of the US.

Despite having sophisticated class action counsel, plaintiffs were really lousy pleaders.  “It is plain and obvious that the causes of action as pleaded will fail.”  Id. ¶108.  Among other things, they “lump” differently situated defendants “together as a group” and allege that everybody’s liable for everything.  Id. ¶109.  Maybe we should call these pleading rulings “Canadian TwIqbal” or “CwIqbal” for short.  Whatever it’s called, the plaintiffs couldn’t meet the standard and the entire complaint was pitched.

How can counsel who can’t or won’t satisfy the most basic pleading requirements possibly be considered “adequate” for class action purposes?

Just a thought.

Another interesting holding in Martin – at least to us, since we don’t know much Canadian substantive law – is that it’s essential in design defect cases to plead “a safer and economical alternative design.”  Id. ¶¶136-37.  That’s also the law in many US jurisdictions.  Of course plaintiffs can’t plead an actual alternative design in most drug cases, so they just plead that somehow some other drug is safer.  That didn’t cut it in Martin.  Id. ¶136.


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As we’ve said before, we don’t do Canadian law here. We posted once on that subject, about a year ago, and we were quick to confess our ignorance.

But we were startled by what we heard about Canadian class action law at the ACI conference in New York City last month. One speaker said