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Connecting losses to alleged negligence key in class action: Waddell

A judge’s decision to deny certification of a pharmaceutical class-action lawsuit demonstrates how important it is for plaintiffs to connect losses to alleged negligence, says Toronto class-action lawyer Margaret Waddell.

The Ontario Superior Court of Justice dismissed a woman’s class-action certification motion against a manufacturer of an antidepressant drug.

This decision is consistent with other class-action rulings that the motion judge has rendered, notably in the high-profile hair-strand testing case, says Waddell, a partner with Waddell Phillips Professional Corporation, who comments generally and is not involved with the matter.

Just as in the hair-strand testing suit, the judge concluded in the antidepressant case that even if there were one or two common issues among the potential claimants, the matter would fall apart as a class proceeding over proving each suffered actual losses caused by the drug, Waddell says.

“The takeaway from the case, more than anything else, is that if you can't show that you have at least some ability to connect loss to the negligence, then it's likely that the judge is going to find that a class action is not the preferable procedure because you're still going to have to do that very fundamental aspect of the claim at an individual trial,” Waddell tells

The drug at the centre of the matter is a selective serotonin reuptake inhibitor (SSRI) used to treat depression.

The thrust of the mother’s proposed class action is that the manufacturer allegedly failed to warn her that its brand may be a “teratogen” — an agent that can disturb the development of an embryo or fetus, causing congenital malformations, spontaneous abortions or birth defects, the justice wrote in his judgment.

The woman says that she was prescribed the drug while pregnant and that her son was born with several severe birth defects, the judge said.

She sought certification for an omnibus claim involving approximately 130 congenital malformations and an estimated 8,600 mothers who were prescribed the drug during pregnancy, the justice wrote. Alternatively, she sought certification for more than one class action, with each action based on groupings of congenital malformations.

Rather than try to show that the drug is or may be teratogenic, the mother and her legal team made a strategic decision to seek certification based only on the company’s duty to warn about the drug’s possible effects, the judge said.

But while there is some basis in fact supporting her claim that the company had a duty to warn, that does not automatically make it a common issue for all class members, the judge wrote. 

“Showing that there is some basis in fact for believing that (the drug) is a teratogen only shows that some birth defects may be caused by (it) and does not help in proving that the many and different congenital malformations in children born of mothers who had ingested the (manufacturer's drug) were caused by (it),” the justice wrote.

The judge reasoned that even if you could establish that the defendant had breached its duty to warn that the drug was teratogenic, that does not mean it caused the congenital defects because they can have a multitude of causes, Waddell notes.

“So you'd still have to delve into every single case, into whether the actual cause of the defect in this particular infant or miscarriage was because the mom was taking the drug,” she says.

Even if the court had decided that the defendant should have warned that the drug could cause birth defects, individual trials for many of the claimants would have been required, Waddell says.

“What (the) Justice was saying here is that the common issue is so small that it doesn't determine really anything meaningful for each person's claim, that it's just a starting point,” she says.

The plaintiffs might have been better off to focus on birth defects in which a solid factual record was capable of demonstrating a connection to the drug, Waddell says. Instead, they dealt generally with all birth defects, she adds.

“If they had been able to show that the use of this particular drug increased the risk substantially of any particular genetic defect, I think they might have had a better chance of certification,” Waddell says. “But they just put everything all in the same basket.”

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