Mersereau v. Bayer Inc., 2015 ONSC 2893

COURT FILE NO.: 5764-11

DATE: 2015/05/ 04

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: THE ESTATE OF VICKY CAPRICE MERSEREAU, by her Estate Trustee, Rodney Mersereau, RODNEY MERSEREAU, personally, DIANE MERSEREAU and ERIC MERSEREAU (Plaintiffs)

AND:

BAYER INC. (Defendant)

BEFORE: Justice B.W. Miller

COUNSEL: J. Mays, for the plaintiffs

G. Worden, for the defendant

HEARD: April 29, 2015

ENDORSEMENT

[1] This is the plaintiffs’ refusals motion in a pharmaceutical products liability action, arising from the examination of Alison Mahoney on October 17, 2014.

[2] The motion was largely resolved in the days immediately prior to oral argument. Twenty-two out of 26 refusals were ultimately answered, and three questions were withdrawn. This endorsement addresses the final question for which a refusal is maintained.

[3] The sole remaining refusal relates to whether it is the defendant’s understanding that certain products liability claims made in the US against the Bayer Group of Companies – claims made with respect to the same pharmaceutical product at issue in this action – are ‘similar claims to the claims being made in this case’ against Bayer Inc.

[4] On examination, counsel for the plaintiff questioned the representative of the defendant on a statement contained in the Bayer Stockholders’ Newsletter (June 30, 2014):

Mr. Baer: So about a third of the way down the page it says “HEALTHCARE”, and then “Product-related litigations”, and then there is a section on Yasmin YAZ … The second sentence in that paragraph says:

“Claimants have alleged that they have suffered personal injuries, some of them fatal, from the use of Bayer’s drospirenone-containing oral contraceptive products such as Yasmin” …

86 Q: Is it your understanding that these are similar claims to the claim being made in this case?

[5] The defendant objects to the question on multiple grounds, principally that it is irrelevant to the litigation, but also that the question is ambiguous, and that it appears from the submissions of counsel for the plaintiff that the answer sought would require the disclosure of privileged communication.

[6] The meaning of the question must be sorted out before I can assess its relevance. The primary problem with the question is not that it is ambiguous between multiple meanings, such that the defendant cannot be sure of what question is being asked. If ambiguity were the problem, it could be resolved by asking the plaintiffs to clarify which of (potentially) several meanings was intended by the question.

[7] The real difficulty is the question’s vagueness. What is ‘similar’, in this context, depends on both judgments of what constitutes a relevant degree of similarity, and of what criteria are to be used to judge whether some similarity is relevant.

[8] If ‘similarity’ is defined broadly enough, the plaintiffs’ question becomes almost trivial: are these claims referenced in the Stockholders’ Newsletter also complaints of venous clot injuries occasioned by the use of the same pharmaceutical product? Thus formulated, the question would be relevant and answerable. It is relevant to this action whether an affiliated corporation in the United States has settled without admission of liability, and continues to consider settlement of, actions brought by third parties for similar injuries arising out of use of the same product.

[9] But this is not the question asked by the plaintiffs. The ‘gloss’ now offered on the question by counsel for the plaintiffs goes far beyond this. The document that forms the basis for the question – the Stockholders’ Newsletter of the Bayer Group – discloses that:

As of July 9, 2014, Bayer had reached agreements, without admission of liability, to settle the claims of approximately 8,900 claimants in the US, for a total amount of about US$1.8 billion. Bayer has only been settling claims in the U.S. for venous clot injuries (deep vein thrombosis or pulmonary embolism) after a case-specific analysis of the medical records on a rolling basis. Such injuries are alleged by about 2,400 of the pending unsettled claimants.

[10] What the plaintiffs really want to know is what criteria the Bayer Group has been using and continues to use in its ‘case-specific analysis of the medical records’ of the claimants when deciding to pursue settlement of claims against it in the US concerning the same pharmaceutical product. What factors is it looking for? What warrants a settlement? And the plaintiffs want to know whether the facts alleged in this case are similar to the facts that were key to the Bayer Group deciding to settle those cases that it has settled, and that it remains open to settling.

[11] Although it was not fully argued before me (doubtless because counsel for the defendant did not anticipate that this would be the line taken by the plaintiffs), it seems that this information sought is protected by settlement privilege, on the principles set out in I. Waxman & Sons Ltd. v. Texaco Canada Ltd., 1968 CanLII 178 (ON SC), [1968] 1 O.R. 642 (Ont HCJ), aff’d 1968 CanLII 327 (ON CA), [1968] 2 O.R. 452 (CA), and Ed Miller Sales & Rentals Ltd. v. Catepillar Tractor Co. (1990) Alberta L.R. (2d) 330 (QB) aff’d [1990] W.W.R. 377 (Alta CA). That is, that privilege extends to subsequent proceedings not related to the dispute in which the settlement or attempted settlement arose. The rationale is as noted in the Law of Evidence in Canada (4th ed) (Lederman, Bryant, and Fuerst (eds)), p. 1042: ‘(a)ny possibility of subsequent adverse use could deter full and frank discussion.’

[12] In any event, the question-as-specified in oral submissions was not the question that was asked on examination for discovery. But even if I were to permit the question to be thus clarified, or asked as a follow-on question, it still hits a wall of privilege and would be properly refused.

[13] With respect to costs, the plaintiffs have been largely successful on the motion, in that 22 of 26 questions were ultimately answered by the defendant, very late in the day. The motion was thus necessary to obtain answers that ought to have been forthcoming without the expense of a motion. However, the defendant was successful on the only issue that was argued. In these circumstances, the plaintiffs shall have their costs of the motion, assessed at $2500, and the defendant shall have costs of the appearance, assessed at $750. Taking into account the set-off, the defendant shall pay costs of $1750 to the plaintiffs within 30 days.

“Justice B. W. Miller”

Justice B.W. Miller

Date: May 4, 2015