Quebec Superior Court denies authorization for a pharmaceutical class action
February 12, 2010
Pharmaceutical companies have historically not fared well in resisting certification of class actions in Quebec. In a welcome turnaround, the Quebec Superior Court now appears to be raising the bar on these types of cases.
On February 12, 2010, the Quebec Superior Court denied authorization for a class action pertaining to the antipsychotic drug Seroquel®. In F. L. v. AstraZeneca Pharmaceuticals PLC, 2010 QCCS 470, Mr. Justice Denis Jacques held that the Petitioner had not met any of the four criteria set out at Article 1003 of the Code of Civil Procedure and denied authorization. The case is of particular importance on at least two crucial elements: 1) the Court found that the Quebec Consumer Protection Act does not apply to the sale of prescription pharmaceuticals when the issue raised is an alleged breach of the duty to inform or to warn; and 2) the Court found that a case based on an alleged breach of the duty to inform or the duty to warn, when dealing with a prescription pharmaceutical, cannot be conducted on a class-wide basis. Jacques J. ruled that in such cases, individual issues overwhelm any common issues that might exist and only the individual analysis of each case can lead to a finding of liability.
The Petitioner had sought authorization to undertake a class action on behalf of a class defined as “all persons to whom was prescribed and who consumed, in Quebec, the medication sold under the name of Seroquel®”. The Petitioner alleged in his Motion that he had taken Seroquel® for approximately eight years in order to treat insomnia and bipolar mania. The Petitioner further alleged that he was prescribed Seroquel® for the first time in 1998 and that in 2000 he learned that he was suffering from Type 2 diabetes. The Petitioner also claimed that taking Seroquel® had caused him to gain excessive weight. Furthermore, he claimed to have suffered from several side effects including respiratory disorder and high blood pressure.
Jacques J. found that the Petitioner had not met the burden of showing that the criteria of Article 1003 of the Code of Civil procedure had been met and denied certification.
An Inscription in Appeal has been filed by Plaintiff's counsel.
McCarthy Tétrault LLP successfully represented the defendants, with a team led by André Payeur.