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Glenn Zakaib and Peter Henein Successfully Narrow Class Action against Pfizer

Published: 02/25/2010

By Peter Henein, Glenn M. Zakaib

In a ruling released February 18, 2010, Justice Paul Perell of the Ontario Superior Court of Justice agreed with arguments made by Glenn Zakaib and Peter Henein of Cassels Brock that a class action against Pfizer Canada and Pfizer Inc. could proceed only on significantly narrower grounds than those advocated by the plaintiffs.

Justice Perell certified the class action solely on the basis of a product liability claim, a type of claim routinely certified, and threw out the plaintiff’s claims of liability for wrongful marketing and for harm caused by generic versions of the drug in question. As a result, the plaintiffs’ claim going forward has been reduced by more than half its original amount, and restricted to a narrower theory of liability.

In two other important aspects of the ruling, Justice Perell:

1. ordered the bifurcation of the plaintiffs’ claim for waiver of tort, representing a significant potential cost savings for Pfizer and an improved ability for it to shield confidential financial information from the plaintiffs; and
    
2. refused to certify the plaintiffs’ $20 million claim for punitive damages as a common issue, thereby imposing a high barrier to the recovery of even a small portion of those damages.