In Price v. Lundbeck A/S, 2022 ONSC 7160, the Ontario Superior Court of Justice dismissed a motion to certify a class action about alleged birth defects resulting from use of a pharmaceutical. In doing so, Justice Glustein for the Court held that a general causation common issue must be tailored to the specific type of harm alleged, and that the alleged harms cannot be stated in overly general terms.
General Causation
General causation is a product's propensity to injure. It is distinct from and precedes specific causation (i.e., whether the product caused a particular injury). General causation is often a threshold issue in product liability claims alleging negligence.[1]
Because specific causation often cannot be determined in common, plaintiffs frequently rely on general causation issues to provide a basis for commonality (if general causation cannot be established, no class member's claim is viable). To certify a corresponding general causation common issue, plaintiffs are typically required to give evidence of a methodology capable of establishing that a breach associated with the impugned product can cause the class members' alleged injuries.[2] As with any common issue, determination of the proposed general causation issue must advance the litigation in a meaningful way.[3]
While the bar is low for such methodologies,[4] the Supreme Court of Canada has held that they must be credible or plausible – they must, among other things, be grounded in the facts of the particular case in question.[5] Price suggests that a methodology responsive to a generic allegation of harm does not meet this standard.[6]
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