New Product Liability Class Action Highlights Uncertainties In Class Proceedings

On April 15, 2013, the Ontario Superior Court of Justice certified a product liability class action in respect of pharmaceutical products manufactured by Bayer Inc. In so doing, the Court's reasoning highlighted the continued uncertainty surrounding the requirements for class certification in the product liability area, especially regarding the standard for pleadings and the acceptability of the ubiquitous "waiver of tort" allegations.

Ann Schwoob v. Bayer Inc.

In Ann Schwoob v. Bayer Inc., 2013 ONSC 2207, the plaintiffs brought a claim in negligence and waiver of tort against a major pharmaceutical company. They alleged that two brands of contraceptives developed and commercialized by the defendant contained a chemical component that made them unsuitable for use due to certain health risks. Moreover, the plaintiffs claimed that these risks were known only to the defendant at the time.