On July 28, 2016, in Bartram v. GlaxoSmithKline Inc., 2016 BCSC 1409, the BC Supreme Court dismissed the defendants’ application for an order striking out a jury notice and requiring that an upcoming trial of the common issues be heard by a judge alone.

The case involves allegations that newborn infants suffered cardiovascular birth defects as a result of their mothers’ use of the anti-depressant drug Paxil during pregnancy. The Defendant, GlasxoSmithKline Inc., marketed the drug in Canada.

A trial of the common issues is set for October 3, 2016 to last 40 days. There are 10 common issues to be determined at the trial.

Commenting generally on jury trials in class actions, the judge made two observations: first, that nothing in the BC Class Proceedings Act precludes a trial by jury in a common issues trial, although the nature of a class action may introduce additional considerations; and second, that common issues are appropriate for trial by jury does not preclude a contrary finding in relation to subsequent trials of individual claims.

The defendants argued that the common issues trial would involve voluminous and complex scientific evidence from a variety of disciplines and was therefore too complex for a jury. The plaintiffs will need to present expert evidence that Paxil causes or increases the likelihood of at least some cardiovascular birth defects and intended to rely on a combination and interplay of medical, scientific, and regulatory evidence.

The application was argued before the date on which the parties were to exchange expert reports that they would be relying on at trial. The judge noted that, in the absence of that evidence, the question of how complex a trial would be is inevitably somewhat speculative.

Ultimately, the judge held that while the subject matter of the case was unique, “the process of hearing and analyzing expert evidence will not necessarily be different from what juries do in a variety of other cases involving sometimes complex personal injuries.” In fact, the judge held it may be even more straightforward because the jury in the common issues trial would not have to consider other possible causes of injury that may be relevant to an individual plaintiff. The judge held that in the absence of an opportunity to consider the expert evidence that would actually be before the court, he was not persuaded that the jury notice should be struck.