Holding a single trial in British Columbia to determine damages for each province and territory related to opioid health-care costs would be a “monster of complexity,” one of the dozens of lawyers for pharmaceutical firms told a court on Wednesday.
Gordon McKee, a lawyer for Janssen Inc. and Johnson & Johnson, told the B.C. Supreme Court that certifying Canadian governments as a class in their pursuit of damages against opioid makers isn’t manageable or preferable compared with separate trials.
He said the province’s claims that a class action is about “efficiency” isn’t enough to certify a class comprising governments that would have ended up suing the defendants regardless of the B.C. government’s legal action.
“This is not a proposed class action by persons who were prescribed opioids and had an adverse experience and might have difficulty accessing the justice system,” he said. “This is pure and simple a claim for money by well-funded, sophisticated litigants who don’t need a class action to access the justice system.”
McKee told Justice Michael Brundrett that he should not certify Canadian governments as a class in the case because it would “burden” B.C.’s justice system and have a negative effect on access to justice for other potential litigants.
He said the “individual issues” at stake are “substantial,” requiring trials that may take months or years to resolve since it’s likely that any decisions made by the court will be subject to appeals.
McKee said other courts in the past have recognized that some class-action lawsuits are “too big to certify,” and there are enough separate issues in each province or territory that would make a single trial unmanageable.
“This is one of those cases,” he said.
Individual trials specific to each jurisdiction would be more suited and “appropriately spreads the burden” of the complex issues among provincial and territorial justice systems, he said.
McKee told the court that there are complex claims against different defendants, and their significance is paramount to assess if the province meets its burden to show a class action is the best way to move forward.
He said the government has to show “with evidence, that a class action of this enormous scope and breadth is manageable, rather than a monster of complexity, as we say it is, and preferable to individual lawsuits by and in each province.”
“Individual trials have been the norm, just and fair way to resolve disputes for a very long time,” he said. “They’re the default.”
Opioid maker Purdue Canada agreed last June to settle in a B.C.-led effort to recover health-care costs in the sale and marketing of opioid-based pain medicines.
The company agreed to pay $150 million in cash and additional benefits, including access to information and documents relevant to the lawsuit, and the settlement was approved by the federal and all provincial and territorial governments.
Andrew Borrell, a lawyer for defendant Sandoz Canada, told the court that the B.C. government could have launched legal actions in a more “narrow” fashion, targeting specific products and their makers.
The province, he said, made a choice to pursue the case with a wide “scope” by bringing a single action “in relation to 50 defendants, all opioids and all conduct over a period of 30 years.”
“The province has to live with that choice in relation to the implications that it means for certification,” he said. “Not all defendants made all opioids. Different combinations of defendants made different opioid products at different times.”
Borrell said class actions can be found “unsuitable” for certification for a number of reasons, if they’re too big and unmanageable in terms of fairness or efficiency, or if there are “other processes available that are preferable.”
“In other words, can you do it all?” he asked the judge.
On Monday, a lawyer for the B.C. government asked the court to certify the class allowing provinces and territories to join their claims against the dozens of defendant companies, saying the actions are nearly identical claiming health-care costs related to the opioid crisis that has killed or injured thousands of Canadians.
The certification hearing is expected to last several weeks.
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