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Scott J. Maidment, McMillan Binch Mendelsohn LLP, Toronto, Ontario, recently obtained a dismissal of a pharmaceutical class action against his client, Teva Canada Limited, using British Columbia’s summary trial procedure. The plaintiff brought the case against Teva on behalf of all Canadian users of Teva’s transdermal fentanyl patch, alleging defective design and failure to warn. In a 70-page trial judgment released recently, Justice Bracken of the British Columbia Supreme Court ruled that there was no alternative design superior to Teva’s design and that Teva had provided adequate warning information. On the design issue, the plaintiffs relied upon the evidence of a US pharmacologist. Through cross-examination of the plaintiff’s expert, Scott demonstrated that the expert lacked the independence required of expert witnesses under Canadian evidence rules and also that there was no proper scientific basis for the expert’s opinion. As Justice Bracken stated in his judgment, the expert’s opinion that Teva’s patches are unsafe “lacks a proper factual foundation” and that the expert “has chosen to ignore evidence that contradicts her opinion and has taken on the role of advocate for the opinion she is advancing”. This is believed to be the first case in which a defendant has used the British Columbia summary trial procedure to obtain a dismissal of a product liability class action before class certification.

Congratulations, Scott!


Do you have news or triumph to share? Send a brief summary with a recent photograph to David Fuqua at dfuqua@fc-lawyers.com


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