In Bartram v. Glaxosmithkline Inc., the Court of Appeal for British Columbia ruled that the plaintiffs in a potential class action suit against pharmaceutical giant Glaxosmithkline Inc did not have to produce medical and pharmaceutical records at the pre-certification stage.
The child of the plaintiff Mrs. Bartram was born with birth defects. She applied for certification of a class action suit to represent mothers who took the drug Paxil during pregnancy and their children. The heart of the claim was an alleged failure on the part of Glaxosmithkline Inc., manufacturer and marketer of the drug, to warn against the risk of birth defects resulting from pregnant women taking the drug. A chambers judge had dismissed Glaxosmithkline Inc.’s application for production of the medical and pharmaceutical records prior to the certification decision being made, leading the company to file for leave to appeal the decision.
Prowse J. upheld the chambers judge’s finding that there were no exceptional circumstances that would justify ordering production of medical evidence at such an early stage in the class proceedings. Ruling otherwise would, in her words, “transform what is a recognized exception to the practice into the norm.” Such a development would have allowed potential defendants in personal injury class action suits – a rapidly expanding area of Canadian jurisprudence – to try sway the courts against certifying by commanding evidence related to the strength of the plaintiff’s substantive claim rather than the rationale for certification.
December 30, 2011
Link to Decision
Radostina Pavlova
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