Class Action Case Update: Justice Perell's recent decision in Wise v Abbott Laboratories, Limited, 2016 ONSC 7275 addressed a number of key areas of interest for the class action bar. Full series updates can be found below.

Where there are concerns that an opposing party's expert is biased, one course of action has been to argue that their evidence be given "less weight". According to a recent decision by Justice Perell, in Wise v Abbott Laboratories, Limited, 2016 ONSC 7275, there is no longer any room for such half-measures. Based on Wise, challenging experts on their independence is an all or nothing proposition: if the apparent bias is sufficiently clear, then it can result in the disqualification of the expert, but it cannot result in an otherwise admissible opinion being given less weight.

Factual Background

Wise was a proposed product liability class action concerning AndroGel™, a topical ointment marketed for the treatment of conditions associated with testosterone deficiency. The Wises commenced a proposed class action against Abbott Laboratories, Limited, Abbott Products Inc., Abbott Products Canada Inc., and Abbvie Products LLC (collectively, "Abbott"), claiming that AndroGel™ led to an increased risk of serious cardiovascular ("CV") events.

Among other claims, the Wises alleged that Abbott fabricated a condition known as "LowT" to refer to naturally occurring side effects of aging experienced by men, such as feeling sad or grumpy, deterioration in the ability to play sports, decreased libido and falling asleep after dinner. The Wises alleged that Abbott targeted its marketing for AndroGel™ at aging men with no genuine medical condition, putting them at an increased risk of harm, despite the product being essentially useless to them.

Abbott brought a pre-certification motion for summary judgment to dismiss the claim. The motion turned on Abbott's argument that the Wises could not prove general causation, i.e. that AndroGel™ did in fact lead to an increased risk of serious CV events. Predictably, this was the subject of extensive expert evidence — too much of it, in fact.

Too Many Experts? Better to Ask Forgiveness than Permission

Section 12 of Ontario's Evidence Act caps the number of opinion witnesses that a party can examine at three, unless the presiding judge grants leave for a greater number. Abbott, without seeking leave in advance, supported its summary judgment motion with a "deluge" of reports from seven expert witnesses. Justice Perell held that a great deal of the expert evidence was redundant, and that, if Abbott had asked for leave before the argument of the summary judgment motion, he probably would have refused it. However, because Abbott waited until the hearing to seek leave, Justice Perell held that it was "too late and not fair to shut the evidentiary barn door."

The surprising takeaway is that this places the burden on the party compliant with the rules to force a decision on the other party's leave requirement at an earlier stage of the proceeding (e.g. by bringing a motion to exclude). A Court may be reluctant to throw out expert evidence after the experts have already been cross-examined and after factums have been submitted referring to their testimony. There may still be some recourse with respect to costs, however. Justice Perell concluded his reasons by warning that that he was inclined to "substantially reduce" Abbott's costs award, because of its failure to seek leave at an earlier stage.

Bias is an Issue of Admissibility, not Weight

In Wise, both parties made aggressive arguments that the other party's experts were biased and lacked the requisite independence. The plaintiffs criticized Abbott's many witnesses for ties to the pharmaceutical industry (such as receiving research funding from testosterone manufacturers, including Abbott) and a history of promoting testosterone treatments (including AndroGel™ specifically). The independence of the plaintiffs' experts was also challenged, due to their history of advocating against the use of AndroGel™ treatments, and their "obvious anti-pharmaceutical agenda". However, the parties did not go so far as to argue that the experts should be disqualified; instead, they argued that their evidence should be given "no weight".

Justice Perell held that the parties arguments were "analytically misconceived":

In making their respective arguments, having cocked their rifle with strident submissions that their opponent's experts are partial, dependent, and biased, the Wises and Abbott respectively do not pull the trigger to have the witnesses disqualified and excluded… … …I do not agree with the parties that I can admit the evidence and then give it diminished weight; my choices are to admit the evidence if I conclude that the expert is qualified to exclude it in its entirety if I conclude that that the expert is not qualified to give opinion evidence.

Opinion evidence is inadmissible unless the expert is "qualified". Recently, in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, the Supreme Court elaborated that one of the components of being qualified is being independent, objective and impartial: a proposed expert witness who is unable or unwilling to fulfill his or her duty to the Court is not properly qualified to perform the role of an expert. In Ontario, this duty is codified by rule 4.1.01.

Justice Perell interpreted White to mean that bias and independence are strictly issues of admissibility, rather than weight. He clarified that there are other reasons why admissible expert evidence might be given reduced weight, such as if the evidence is not persuasive or helpful.

Justice Perell declined to disqualify any of the expert witnesses in Wise, despite finding that there was some merit to the criticism of the experts' independence. He characterized two of Abbott's experts as "professional witnesses", and held generally that the attacks on the experts' independence had "factual traction". However, he held that this "factual traction" was not sufficient to warrant disqualification. Justice Perell appeared to regard the threshold for disqualification as a high one. He noted that a pre-existing relationship with an expert does not automatically render the evidence of the proposed expert inadmissible. There must be a "realistic concern that the expert's evidence should not be received because the expert was unable or unwilling to comply with his or her sworn duty." The approach to expert evidence in Wise disincentives attacks against experts' independence, except in the clearest of cases where an expert's apparent bias is sufficiently egregious to warrant their disqualification. The book may not be closed on this issue, however. A bright line distinction between admissibility and weight arguably does not follow from the Supreme Court of Canada's decision in White, which refers to impartiality as being relevant both to admissibility and weight.

In the end, Justice Perell's approach to admissibility versus weight appears to have had little impact on the outcome, as none of the experts were prepared to attest that Androgel™ caused serious CV events (rather, they could only say that it was associated with serious CV events). This may have influenced his decision to admit the experts' evidence, since he was not going to rely on it anyways. Because the plaintiffs bore the burden of proof, Justice Perell granted Abbott’s summary judgment motion and dismissed the Wises’ proposed class action.

Wise v Abbott Laboratories, Limited Class Action Case Update Series