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Canadian Class Actions Monitor

A Most Dysfunctional Application

Posted in Class Actions
Alexandre Mireault

The recent decision Baratto v. Merck Canada Inc. presents a rare occasion where the Superior Court of Québec refuses permission to institute a class action lawsuit. The plaintiff, who suffered from depression and erectile dysfunction, claimed his problems were caused by medication produced by the defendant. Based on the Court’s analysis of the facts, the plaintiff could not properly advance the rights of the class he sought to represent, which the Court characterised as poorly defined. The Court also considered the plaintiff’s medical history, which was riddled with alternative possible causes of his problems, and determined that the plaintiff’s claims could not justify the conclusions sought.

Merck developed, produced, sold and distributed two pharmaceutical products targeted by the proposed class action. Propecia was prescribed for the treatment of balding; Proscar was prescribed for the treatment of enlarged prostates and the prevention of urological problems. Both products contain Finasteride, an inhibitor of enzymes.

In October of 2008, Baratto, then 25 years old, received a prescription for Proscar in order to treat his baldness; he claimed to have taken 1.25 mg per day, equivalent to a quarter of a tablet, though he never took Propecia. After a month, Baratto stopped the treatment and self‑diagnosed as suffering from depression and erectile dysfunction. Seeking the cause of his problems, Baratto stumbled upon a website which linked Finasteride to depression and erectile dysfunction. Relying on the conclusions presented on the website, Baratto claimed that the secondary side effects of Finasteride resulted in his psychological and sexual problems.

Baratto sought authorisation to institute a class action for all persons residing in Québec to whom the products Propecia and/or Proscar were prescribed prior to November 18, 2011, and who had taken said products for the treatment of baldness. Baratto claimed that Merck did not adequately advise the proposed class members of the health risks associated with the use of medication containing Finasteride. He pled that Merck should have known the risks associated with the products, but failed in its obligation to undertake adequate clinical tests.

The Court qualified the alleged faults as purely hypothetical. The Court stated that, in spite of the low bar at the authorisation stage, it nonetheless had a responsibility to proceed beyond a superficial analysis of the facts. Particularly, the Court said it could not ignore the uncontradicted evidence relating to the plaintiff’s medical history. While taking Proscar, Baratto had also begun taking Prednisone, a medication known to cause erectile dysfunction. The Court also noted Baratto’s existing psychological problems related to his baldness and stress in his personal and professional life.

The Court concluded that the action sought by Baratto did not satisfy the first criteria required to institute the class action lawsuit, i.e. similarity. An analysis of the evidence of the proposed members of the class could only be done on an individual basis. As a result of the numerous potential causes of depression and erectile dysfunction, the class action would have transformed the Court into an inquest, with facts varying from member to member; the proposed class action therefore would be ill-suited to advance the rights of the members of the class proposed.

Furthermore, the group as defined was both too large and not sufficiently related to Baratto’s own personal case. Baratto had done too little to qualify the group in light of a prejudice suffered, particularly as it was not limited to those, like Baratto, who suffered from depression or erectile dysfunction. The Court refused to redefine the group of its own accord.

The Court also concluded that Baratto failed to show that the facts alleged justified the conclusion sought. The Court declared dubious the proposed causal relation between Merck’s alleged fault and damages purportedly suffered by Baratto. Not only had Baratto never taken Propecia, he also took Proscar in smaller doses that had been suggested by Merck and for reasons other than those for which the product had been conceived. Finally, as a result of the absence of a professional diagnosis of erectile dysfunction, and in light of the numerous potential psychological and medical causes present in the plaintiff’s file, the Court refused to link Baratto’s problems to Propecia or Proscar.

Baratto appealed the Superior Court decision on January 20, 2017; we will monitor the case and keep you posted on the Court of Appeal’s decision.