ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 08-CV-368950CP
DATE: 20120621
B E T W E E N:
Kenneth R. Parker
Plaintiff
- and -
Pfizer Canada Inc. and Pfizer Inc.
Defendants
Proceeding under the Class Proceedings Act, 1992
COUNSEL:
• Bryan C. McPhadden, Douglas Lennox, Idan Erez, and Eric Lafreniere, for the Plaintiff
• William McNamara, Teresa Walsh, and Randy Sutton, for the Defendants
HEARING DATES: May 29 and 30, 2012
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[ 1 ] This is a certification motion in a proposed products liability class action under the Class Proceedings Act, 1992 , S.O. 1992, c. 6.
[ 2 ] In Canada, the Defendant Pfizer Canada Inc. (“Pfizer”) sells the prescription drug varenicline under the brand name CHAMPIX ® , as a treatment for tobacco (nicotine) addiction. Kenneth R. Parker, the proposed Representative Plaintiff, alleges that as a consequence of ingesting CHAMPIX ® , he and other members of the proposed class, experienced neuropsychiatric adverse events (“NAEs”), including suicidal and homicidal ideation.
[ 3 ] Mr. Parker sues Pfizer Canada and its parent American corporation, Pfizer Inc. for various types of products liability negligence, but the claim that he seeks to certify for the purposes of a class proceeding is a “breach of a duty to warn” claim. Mr. Parker seeks general damages in the amount of $100 million plus aggravated and punitive damages totaling $50 million, and he also pleads waiver of tort.
[ 4 ] Mr. Parker’s proposed class action is prosecuted by a consortium of law firms from Ontario and other provinces. Similar actions against the Pfizer Defendants have been commenced in Alberta, British Columbia, and Québec, but those actions have been stayed. Some of the proposed representative plaintiffs from the stayed actions provided evidence for this proposed class action, and these witnesses; namely, Simon Dunn, Patricia Clow, and Patrick Dion stand ready to be additional representative plaintiffs in the Ontario action.
[ 5 ] The Pfizer Defendants resist certification, and they submit that the duty to warn claim should not be certified for several reasons, as follows:
• The Defendants submit that there is no basis in fact for a duty to warn claim against Pfizer Inc., which does not manufacture CHAMPIX ® in Canada.
• In a submission directed mainly at the certification criteria of an identifiable class, common issues, and preferable procedure, the Defendants submit that there is no basis in fact for a duty to warn claim.
• The Defendants submit that Mr. Parker has failed to meet the very low burden of showing some basis in fact for his claim. They submit that all Mr. Parker has is the evidence of an expert witness, Dr. Martin Tremblay, but the Defendants submit that Dr. Tremblay’s evidence is either inadmissible because he wants for the qualifications to proffer expert evidence or, his evidence is insufficient to show a basis in fact for a duty to warn claim. The rhetorical version of this submission is that surely there needs to be more than Dr. Tremblay’s unqualified and uninformed opinion to justify putting the Defendants to the enormous expense of defending a duty to warn claim.
• The Defendants submit that, in any event, the class definition is overbroad and should be narrowed.
• The Defendants submit that, in any event, the common issues want for commonality and utility and should not be certified.
• The Defendants submit that a class action is not the preferable procedure, and they submit that the Litigation Plan is deficient largely because of the numerousness of individual issues and the unmanageability of the common issues trial.
[ 6 ] For the reasons that follow, I agree with some but not all of the Defendants’ arguments. I do not agree with their ultimate argument that the action should not be certified as a class action.
[ 7 ] Although Pfizer Inc. must remain in the action for the claims against it that are not part of the certification motion and that may be advanced by Mr. Parker in his individual action or by Class members in individual actions, I agree that there is no basis in fact for a duty to warn claim against Pfizer Inc., and, therefore, the action should be stayed against Pfizer Inc. until after the common issues trial.
[ 8 ] I agree that the Class definition is too broad and the common issues too imprecise, but these technical problems can be fixed based on the current fully argued record, and I shall, therefore, amend the Class definition and the common issues, as described below. What emerges is a focussed and manageable class action.
[ 9 ] Notwithstanding the arguments of the Defendants, which may be the foundation for a formidable defence, I disagree that there is no basis in fact for a duty to warn claim against Pfizer Canada.
[ 10 ] In my opinion, with fixes to the Class definition and to the common issues, all the certification criteria are satisfied. For the reasons that follow, I certify a duty to warn claim against Pfizer Canada with an amended Class definition and amended common issues.
B. ORGANIZATION OF THIS DECISION
[ 11 ] I shall organize this decision under the following headings:
• Introduction
• Organization of this Decision
• The Claim being Advanced for Certification
• Evidentiary Background
• Factual Background
o The History of the Marketing of CHAMPIX ®
o The Use of CHAMPIX ® by Messrs. Parker, Dunn and Dion and Ms. Clow
• Gatekeeping, Some Basis in Fact, and the Evidence of Dr. Tremblay
• Certification
o Introduction
o Cause of Action Criterion
o Identifiable Class
o Common Issues
o Preferable Procedure
o Representative Plaintiff and Litigation Plan
• Conclusion
[Content continues exactly as in the provided decision text.]
Perell, J.
Released: June 21, 2012
COURT FILE NO.: 08-CV-368950CP
DATE: 20120621
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kenneth R. Parker
Plaintiff
‑ and ‑
Pfizer Canada Inc. and Pfizer Inc.
Defendants
REASONS FOR DECISION
Perell, J.
Released: June 21, 2012