CASE: Goodridge et al. v. Pfizer Canada Inc.. et al. (Ontario Superior Court of Justice)
DRUG: Gabapentin (NEURONTIN®)
NATURE OF CASE: Class Action - Certification Motion – Motion to Strike
DATE OF DECISION: February 18, 2010
A proposed class action was commenced against Pfizer Canada Inc et al (“Pfizer”) for alleged negligence relating to the manufacture and sale of Neurontin (gabapentin). The Plaintiffs alleged that Pfizer owed a duty of care to consumers of brand- and generic gabapentin, inter alia. Pfizer commenced third party claims against twenty-one generic drug manufacturers who manufacture and sell products containing gabapentin in Canada.
Pfizer brought a motion to strike the Plaintiffs’ allegation that it owed a duty of care to consumers of generic gabapentin on the basis that it was “plain and obvious” that this allegation could not succeed at trial. This issue was argued before Justice Perell of the Ontario Superior Court as part of the Plaintiffs’ motion to certify the action as a class proceeding..
Perell J. held that product liability claims in Canada are based in the law of negligence. The first step of a negligence analysis is to determine if there is a duty of care. Perell J. held that there was no prima facie duty of care between the innovator and consumers of generic drugs. As such, the Court applied the following two-step test to determine if a duty exists: (1) Is there a sufficiently close relationship between the plaintiff and defendant such that in the reasonable contemplation of the defendant, carelessness on its part might cause damage to the plaintiff?; and (2) are there any considerations that ought to negative or limit the duty? At the first stage of the test, three requirements must be established: (a) foreseeability; (b) proximity; and (c) the absence of overriding policy considerations that would negate any prima facie duty established by foreseeability and proximity.
Perell J. held that it was reasonably foreseeable that harm would be caused by generics manufacturing gabapentin. On proximity, Perell J. held that while drug innovators release ideas into the stream of commerce, it is the generic manufacturer who copies those ideas and releases products into the marketplace. The proximity element was not satisfied, as the relationship between Pfizer and generic gabapentin consumers was more remote than the relationship between generic manufacturers and consumers. Perell J. held that the alleged harm suffered by the Plaintiffs was not due to a defective design and that it would be unfair to base a duty of care on a connection between the Plaintiffs’ harm and the Defendants’ conduct. Moreover, Pfizer was not in a position to stop the generic manufacturers from releasing the generic drug or to stop physicians from prescribing for off-label uses.
In obiter, Perell J. addressed the second step of the Anns test, supra, and concluded that: (i) the imposition of a duty of care by innovators to consumers of generic drugs should be a legislative decision; and (ii) the imposition of liability on the innovator would likely discourage medical advances and innovative technologies that could benefit society.
In sum, Perell J. held that Pfizer had no duty of care to the consumers of a generic version of their drug. The Plaintiffs’ allegations with respect to generic sales were struck out.
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