QCA Upholds Denial of Certification in Paxil Class

On November 12, 2010, the Québec Court of Appeal maintained the judgment rendered by Justice Mark Peacock, dismissing the Motion for Authorization to Institute a Class Action.

The motion was instituted by Iyana Goyette, who sought to represent all persons residing in Canada who had experienced dependency and withdrawal problems from using the anti-depressant medication marketed under the name Paxil.

The petitioner contended that GlaxoSmithKline Inc. (“GSK”) had introduced Paxil to the market and failed to inform health professionals and consumers of the risks associated with discontinuing the medication or reducing the dose, and misrepresented the facts in regard thereto.

Accordingly, the petitioner claimed compensation on behalf of the members for physical, economic and moral damages suffered, along with punitive damages.

In the decision, Goyette v. GlaxoSmithKline Inc., 2010 QCCA 2054, which is the first of its kind in Québec in a matter involving a Motion to Institute a Class Action in connection with a pharmaceutical product, the Court of Appeal ruled that Justice Peacock did not commit a dominant and manifest error in concluding that the recourses of the members did not raise common questions as required by Article 1003 (a) of the Code of Civil Procedure, since the alleged prejudice was susceptible of infinite variations.

Furthermore, the Court of Appeal stated that it could not find a dominant and manifest error in the appreciation of the evidence establishing that the Compendium of Pharmaceuticals and Specialties (“CPS”) appropriately disclose the withdrawal and dependency risks associated with the use of the medication.

Consequently, the Court of Appeal confirmed that the motion did not establish a serious appearance of right.

Ogilvy Renault LLP represented GlaxoSmithKline, both before the Québec Superior Court and Court of Appeal, with a team consisting of Marianne Ignacz, Jean Bertrand, Anne-Louise Lamarre and Dominique Simard.

On the appeal only, GSK was represented by Marianne Ignacz and Anne-Louise Lamarre of Ogilvy Renault.

Gilles Gareau and Fredy Adams of Adams Gareau represented the petitioner in the appeal.