In Palmer v. Teva Canada Limited, an appeal by representative plaintiffs was rejected by a Court where the plaintiffs sought certification of a proposed product liability class action. This is a significant outcome for all those involved with products liability actions.
Overview
This proposed class action, involved the alleged contamination of the defendants’ blood pressure medication. The medication, valsartan, allegedly had traces of two contaminants, N-nitrosodimethylamine (“NDMA”) and N-nitrosodiethylamine (“NDEA”), which are toxic carcinogens. The medication was voluntarily recalled by the defendants.
Damages were sought by the plaintiffs for psychological harm and the costs associated with medical services, travel costs, time thrown away, and disposal costs of the drugs.
Originally, the Superior Court of Justice denied the certification of the proposed class action by the plaintiffs. The Court decided that there was no causal link between the plaintiffs consuming the drug and actually being diagnosed with cancer. The Court ultimately found that there was no possible action as there was no definite injuries sustained by the plaintiffs.
The plaintiffs appealed the decision.
Decision
The Ontario Court of Appeal dismissed the plaintiffs’ appeal. The Court stated that “…the wrongful conduct on the part of the drug manufacturers is non-compensable not only because, as the motion judge found, physical harm has yet to materialize, but also because the harm that had materialized – psychological harm from the shock of the recall – was not sufficiently serious to be compensable in tort law.”
The plaintiff raised two errors in their appeal. First, that the motion judge failed to consider genotoxicity which is “internal bodily composition at a cellular or molecular level” caused by consuming NDMA and NDEA. Secondly, the motion judge erred in concluding that the psychological harm related to the risk of increased cancer was not a viable cause of action.
Regarding the genotoxic injury, the Court found that this damage had not occurred. The Court emphasized that for the claim for negligence to be successful there needed to be injury and that there would need to be a “…materialized loss that gives rise to a defendant’s obligation to compensate the plaintiff for the injury.”
On argument that there was an error in the treatment of the psychological injury claim, the Court found that the claims for psychological injury did not “rise above the anxieties and fears commonly experienced from time to time by people living together in society”. The plaintiffs failed to plead material facts that supported damages under this tort as seen in the Supreme Court decisions in Mustapha or Saadati.
Further, the Court also dismissed the plaintiffs’ claims for battery, damages under the Consumer Protection Act and Competition Act, and the claim for unjust enrichment.
Key Takeaways
Palmer clarifies the Court’s position as outlined in a previous blog I wrote on the Ontario Court of Appeal decision in Bothwell. In order to be entitled to damages for psychological injuries the issues must be “serious and prolonged and rise[s] above the ordinary annoyances, anxieties and fears”.
From a product’s liability perspective, Palmer offers some comfort to manufacturers that theoretical risk of harm by their products will be safeguarded by the Court. Where the test in Bothwell is not met, a plaintiff’s claim will fail for damages for psychological injury.
