April 30, 2014 - Reply Brief re: Strike

2009
Hfx. No. 315567
SUPREME COURT OF NOVA SCOTIA
BETWEEN:
ALBERT CARL SWEETLAND and THE·ESTATE OF MARY AGNES ADDICOTT,
MARY PATRICIA ADDICOTT-ANDREWS, AUDREY .LEONE .ADDICOTT NGUYEN,
RUTH.ANNE TOBIN, PAUL ALLEN .ADDICOTT, JOHN WENDELL ADDICOTT,
JILLIAN LEIGH ANDRE:WS, by her Litig~tion Gl;lardian Mary Patricia Addicott
Andrews, JEFFREY PAUL .ADDICOTT, JUSTINE LYNN .ADDICOTT, SHENO.A LEE
MATHESON, CONNOR _T OBIN, .SHAJA'N "ANDRE'JJ ADDICOTT, .J ORDYN AYRES, by
her Litigation <;;uardian McU)' Patricia Addicott Andrews, and LYNDA TROTTIER, by her
Litigation Guardian Mary Patricia Addicott Andrews
Plaintiffs
-andGLAXOSMITHKLINE INC., GLAXOSMITHKLINE PLC, GLAXOSMITHKLINE
SERVICES UNLIMITED and SMITHKLINE BEECHAM CORPORATION
Defendants
PLAINTIFFS' REPLY TO THE DEFENDANTS' MOTION FOR PRODUCTION OF
MEDICAUPHARMACY RECORDS
And
PLAINTIFFS' REPLY TO THE DEFENDANTS' MOTION TO STRIKE
AFFIDAVITS
LAINTIFFS'
(;o u 1 ! d.1 ,Jrtl trrition
And
-
APR 30 2014
PLAINTIFFS CORRESPONDING BOOK OF AUTHORITI S
Halifax, N.S.
HEARING DATE: MAY 21, 2014
Wagners
1869 Upper Water Street
Suite PH301, Historic Properties
Halifax, NS 83J 1S9
Solicitor for the Plaintiffs
Filed: April 30, 2014
2009
Hfx. No. 315567
SUPREME COURT OF NOVA SCOTIA
B E T W E E N:
ALBERT CARL SWEETLAND and THE ESTATE OF MARY AGNES ADDICOTT, MARY
PATRICIA ADDICOTT-ANDREWS, AUDREY LEONE ADDICOTT-NGUYEN,
RUTHANNE TOBIN, PAUL ALLEN ADDICOTT, JOHN WENDELL ADDICOTT, JILLIAN
LEIGH ANDREWS, by her Litigation Guardian Mary Patricia Addicott-Andrews, JEFFREY
PAUL ADDICOTT, JUSTINE LYNN ADDICOTT, SHENOA LEE MATHESON, CONNOR
TOBIN, SHAWN ANDREW ADDICOTT, JORDYN AYRES, by her Litigation Guardian
Mary Patricia Addicott-Andrews, and LYNDA TROTTIER, by her Litigation Guardian Mary
Patricia Addicott-Andrews
Plaintiffs
- and –
GLAXOSMITHKLINE INC., GLAXOSMITHKLINE PLC, GLAXOSMITHKLINE
SERVICES UNLIMITED and SMITHKLINE BEECHAM CORPORATION
Defendants
PLAINTIFFS’ BRIEF IN REPLY TO THE DEFENDANTS’ MOTION TO STRIKE
PLAINTIFFS’ AFFIDAVITS
HEARING DATE: MAY 21, 2014
Wagners
1869 Upper Water Street
Suite PH301, Historic Properties
Halifax, NS B3J 1S9
Solicitor for the Plaintiffs
Filed: April 30, 2014
2
BACKGROUND
1.
The defendants have brought a motion to strike certain portions of the plaintiffs'
certification record.
2.
Certification motions are intended to be procedural. It is common practice in this
jurisdiction and others for plaintiffs to file brief lawyer's affidavits that set out the
background for the case. This practice is fair, expedient, and cost effective. The
alternative would be for plaintiffs simply to introduce the very same evidence into the
record by cross-examining the defendants on their certification affidavit(s).
3.
The defendants would gain nothing from striking portions of these affidavits
because the same evidence would be admissible through cross-examination of the
defendants' affiants at the certification motion.
4.
The only result of the defendants' technical motion is that it further postpones a
hearing of the merits of this proposed class action.
FACTS
5.
On August 18, 2009, the Plaintiffs commenced a proposed class proceeding
against the various GlaxoSmithKline defendants (“GSK”) alleging, inter alia, that a drug
manufactured by GSK and marketed as Avandia causes cardiovascular adverse reactions
such as heart attacks and strokes, and that GSK failed to warn about those risks.
6.
On September 27, 2013, the Plaintiffs provided counsel for the defendants with
their unfiled evidentiary record with respect to the Motion for Certification.
7.
GSK filed a motion to strike portions of the Plaintiffs’ evidentiary record on April
14, 2014. More particularly, GSK seeks to strike portions of (i) the lawyer's affidavit that
sets out the background to this case and (ii) an expert's affidavit in which she opines that
Avandia can cause the cardiovascular adverse reactions complained of on behalf of the
putative class herein.
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ISSUES
8.
There is one issue to be determined:
(a) Should portion of the Plaintiffs’ evidentiary record be struck for
being irrelevant, scandalous, vexatious, oppressive, or otherwise
inadmissible?
SUBMISSIONS
(i) General Principles
9.
The Plaintiffs seek certification of issues which are necessary to the resolution of
each Class Member’s claim. They seek to have their common issues resolved in one
central proceeding.
10.
A motion for certification is not a determination of the merits of the claim. It is a
procedural motion. The jurisprudence confirms that on procedural motions, principles
such as the "best evidence" rule have limited, if any, application. Similarly, the scope for
putting information before the court on a certification motion, given its procedural nature, is
considerably broader than it would be on a motion going to the actual determination of
the merits of the claims advanced.
Fanshawe College of Applied Arts & Technology v. LG Phillips LCD Co., 2009 CarswellOnt
7272 (S.C.J.), at paras. 23-27
Elwin v. Nova Scotia Home for Coloured Children, 2013 CarswellNS 475 (N.S.S.C.) at para 13.
11.
It is because the certification is not concerned with the merits of the action that
the Plaintiffs have filed evidence not to prove the truth of the evidence. Rather, the
evidence is filed for the simple purpose of satisfy only a minimum standard - "some
basis in fact". The evidence t h a t G S K seeks to strike is admissible in this capacity.
For example: Fanshawe, supra; Gay v. Regional Health Authority 7, 2010 CarswellNB
677; Lambert v. Guidant Corp., [2009] O.J. No. 1910 (Ont. S.C.J.), at para. 60
12.
The Plaintiffs have the burden to present evidence of the material facts and
opinions upon which they seek certification of their action. As stated in Gariepy v. Shell
Oil Co., (2002), 23 C.P.C. (5th) 360:
4
[there] is, of course, the obligation that rests on all parties in every case to
put all relevant evidence before the court that will assist in the proper
determination of the issues raised.
13.
On a motion for certification, the plaintiffs are required to establish “some basis in
fact” for each of the certification requirements (other than whether the pleadings disclose
a cause of action).
Hollick v. Metropolitan Toronto (Municipality), 2001 CarswellOnt 3577, at paras. 24-25.
MacQueen v. Ispat Sidbec Inc., 2011 CarswellNS 942, at para. 12.
14.
Plaintiffs routinely (even always) use affidavits to establish the existence of an
identifiable class that shares common issues that can be efficiently resolved via a class
proceeding. For example, in Cloud v. Canada, the plaintiffs’ evidentiary record consisted of
affidavits from ten former residents. The affidavits evidenced the alleged atmosphere of
fear, intimidation and brutality that all students suffered and hardship that harmed all
residents. In Rumley v. British Columbia, the plaintiffs filed (as an exhibit to an affidavit)
the “Berger Report”. The Report concluded that "sexual abuse was at times
widespread…” and that “there is compelling evidence that abuse was rampant…”. In
both cases, these affidavits provided the Court with an evidentiary basis to conclude
that there was an indefinable class that shared common issues.
Cloud v. Canada, 2004 CarswellOnt 5026 (C.A.), at paras. 66-67.
Rumley v. British Columbia, 2001 CarswellBC 2166 (S.C.C.), at paras. 2-10.
15.
Justice Winkler (as he was then), in Caputo v. Imperial Tobacco confirms that
evidence which touches upon the merits of a case is admissible on a motion for
certification, at para. 20:
Accordingly, any inquiry into the merits of the action will not be relevant on a
motion for certification. The examination must be confined to those issues on the
motion for certification on which the plaintiffs may have relevant evidence to
assist the court. While evidence pertinent to the issues on the motion may, on
occasion, overlap with evidence going to the merits of the action, this incursion
may be permissible if the evidence sought is also relevant to the motion. As was
noted by Russell C.J. in Doctor v. Seaboard Coast Line Railroad Co., 540 F.2d 699
(U.S. C.A. 4th Cir. 1976) at 707:
[A] preliminary hearing, addressed not to the merits of plaintiff's individual
claim, but to whether he is asserting a claim which, assuming its merit, will
satisfy the requirements of Rule 23, has never been regarded as violative of the rule
stated in Eisen, quoted supra.
Caputo v. Imperial Tobacco, 1997 CarswellOnt 2401.
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16.
In providing an evidential basis for the existence of a class of people who
share common issues, by necessity some of the evidence on a motion for certification
will touch on the merits of the case. This is no basis for striking the affidavits.
Anderson v. St. Jude Medical Inc., 2003 CarswellOnt 5995 (S.C.J.), at paras. 9-10.
17.
In relation to certification motions in class proceedings, extreme technicality ought
to be avoided in favour of procedural fairness.
Punit v. Wawanesa Mutual Insurance Co. 2006 CarswellOnt 7594 (S.C.J.) at para 11.
(ii) Hearsay
18.
Much of the defendants' objection to the lawyer's affidavit filed by the plaintiffs is
based on the complaint that the affidavit contains hearsay evidence.
19.
The admissibility of hearsay evidence is governed by R.22.15. In relevant part, rule
22.15 provides that:
22.15 (1) The rules of evidence apply to the hearing of a motion, including the
affidavits, unless these Rules or legislation provides otherwise.
(2) Hearsay not excepted from the rule of evidence excluding hearsay may be
offered
on any of the following motions:
...
(c) a motion to determine a procedural right;
...
(3) A party presenting hearsay must establish the source, and the witness' belief, of
the information.
20.
Hearsay evidence can be tendered on a certification motion when the facts attested
are not contentious, clearly relevant, and not purposely put forward to avoid crossexamination of the real deponent.
Punit v. Wawanesa Mutual Insurance Co. 2006 CarswellOnt 7594 (S.C.J.) at para 6.
Dobbie v. Arctic Glacier Income Fund, 2010 CarswellOnt 8583 (S.C.J.) at para 19.
21.
The question of hearsay in a lawyer's affidavit within a class proceeding was
recently considered by this Honourable Court in Elwin v. Nova Scotia Home for Coloured
Children.
Elwin v. Nova Scotia Home for Coloured Children, 2013 CarswellNS 475 (N.S.S.C.) at para 13.
6
22.
Elwin is an ongoing class proceeding in which the plaintiffs allege that they and
other class members suffered sexual abuse while wards of the Province of Nova Scotia
(the "Province"). The Province brought a motion to strike certain portions of all of the
affidavits filed by the plaintiffs in support of the plaintiffs' motion for certification.
23.
As in the present case, much of the Province's objection was based on the fact that
the affidavits filed in support of certification in Elwin contained hearsay.
24.
Justice LeBlanc in Elwin found that certification motions were procedural, such that
hearsay evidence was admissible under R.22.15 provided that it was not otherwise
excluded.
Elwin v. Nova Scotia Home for Coloured Children, 2013 CarswellNS 475 (N.S.S.C.) at para 12.
25.
In other words, hearsay evidence will be admissible on certification motions when
the affiant identifies the source of the statement and swears that he or she believes the
statement to be true, and when the evidence is relevant to the certification test set out in
s.7(1)(b-e) of the Class Proceedings Act, S.N.S. 2007, c. 28.
Elwin v. Nova Scotia Home for Coloured Children, 2013 CarswellNS 475 (N.S.S.C.) at paras 14
and 18.
(iii) The Dull Affidavit
26.
In the herein motion, GSK moves to strike most of the affidavit of Michael Dull.
Michael Dull ("Mr. Dull") is a lawyer at the Wagners law firm, which is acting for the
plaintiffs herein. The Dull Affidavit is a lawyer's affidavit that sets out the background for
the proposed class action herein.
27.
GSK's complaints relative to the Dull Affidavit are said to be founded on several
grounds, none of which survive scrutiny.
28.
As an over-arching statement, GSK submits at paragraph 15 of its brief that
"[l]awyers should not be affiants on affidavits dealing with substantive matters." The
decision cited in support of that proposition is a Federal Court case, Butterfield v. Canada
(Attorney Geneal). Butterfield identifies the principle behind that prohibition as being the
need for a lawyer to avoid exposing him - or herself to being cross-examined on matters
covered by solicitor-client privilege. Respectfully, there is nothing privileged in the Dull
Affidavit that could possibly give rise to the concerns of the Federal Court in Butterfield.
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29.
Indeed, lawyers' affidavits are routinely filed on class action certification motions,
not only in Nova Scotia but in other provinces as well; moreover, such affidavits commonly
survive, either in whole or in part, motions to strike brought by defendants. In Elwin, which
is being prosecuted by the same law firm that is prosecuting the herein action, this
Honourable Court permitted an affidavit of Mr. Dull to stand, while striking portions of it.
Elwin v. Nova Scotia Home for Coloured Children, 2013 CarswellNS 475 (N.S.S.C.)
Punit v. Wawanesa Mutual Insurance Co. 2006 CarswellOnt 7594 (S.C.J.) at para 6.
Fanshawe College of Applied Arts & Technology v. LG Phillips LCD Co 2009 CarswellOnt
7272 (S.C.J.) at paras 6, 27-29, 33-34.
Dobbie v. Arctic Glacier Income Fund 2010 CarswellOnt 8583 (S.C.J.) at paras 4, 12, 15, and
20.
30.
GSK's second ground asserted for attacking the Dull Affidavit is that it contains
hearsay evidence. The defendants do not identify what paragraphs are supposedly
impugned on the basis of hearsay. The defendants do not identify why any particular
paragraph cannot fall under the exceptions to hearsay typically permitted in certification
motions.
31.
GSK's remaining grounds advanced for attacking the Dull Affidavit are that it
contains irrelevant or lay-opinion evidence, and that it includes advocacy. Again, the
defendants do not identify what paragraphs are impugned on these purported bases. In
fact, it is readily apparent that the Dull Affidavit contains no opinion evidence whatsoever,
and no advocacy.
32.
GSK baldly submits that the inclusion of the impugned paragraphs would be
prejudicial to it but does not identify a single example of what prejudice it might suffer from
their inclusion. By all appearances, GSK's objections are, for the most part, purely
technical.
33.
Moreover, much or all of the impugned evidence could, if necessary, also be
obtained from GSK's representative(s) on cross-examination or examination in aid of
motion after GSK finally responds to the plaintiffs' certification motion. Accordingly, little or
nothing is to be gained from GSK's motion herein, which serves only to delay and
increase the costs of the pending motion for certification.
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34.
Attached hereto as Table 1 is a chart prepared by the plaintiffs describing why each
paragraph of the Dull Affidavit is appropriate by reference to relevance and the standards
for admissibility of evidence, including hearsay evidence, on certification motions.
35.
An important feature of the Dull Affidavit that distinguishes it from the lawyer
affidavits that were struck in part in Elwin and Hogeterp v. Huntley, another case relied on
by GSK on this motion, is that Mr. Dull identifies the source of his evidence and affirms his
believe in the truth, reliability, and accuracy of that information.
Dull Affidavit
(iv) The Lipscombe Affidavit
36.
GSK additionally moves to strike portions of the affidavit of Lorraine Lipscombe,
sworn September 26, 2013, (the "Lipscombe Affidavit"). Lorraine Lipscombe ("Dr.
Lipscombe") is both an endocrinologist and epidemiologist. As an endocrinologist and
prescribing physician, Dr. Lipscombe has a professional understanding of the role of
Avandia in clinical practice. As an epidemiologist, Dr. Lipscombe has studied the health
risks of Avandia on populations. Accordingly, her affidavit describes the risks and benefits
of drugs and the analysis of data in clinical studies pertaining to Avandia.
37.
The first of GSK's objections to portions of the Lipscombe Affidavit are that it
describes actions and findings of foreign governing and regulatory bodies. GSK submits
that such references are "not relevant to what occurred in Canada between Health
Canada and GSK Inc., the subject of the Canadian litigation." Respectfully, this proposed
class action is not limited to events in Canada. The pleadings herein name a number of
foreign GSK entities and allege that duties were owed to Canadians by those foreign
entities. The truth of the matter is that GSK is an international concern, that Avandia was
being sold, marketed, and causing injury to patients worldwide; accordingly, the question
of whether Canadians were sufficiently warned of the dangers of Avandia can only be
answered by comparing what Canadians were being told respecting such dangers with (i)
what patients elsewhere were being told respecting such dangers; and (ii) what GSK as
an international concern knew about the risks of Avandia based on the adverse effects
being experience and studied worldwide. The Lipscombe Affidavit establishes some basis
in fact for the inclusion of those foreign GSK entities and will assist the plaintiffs in
obtaining further such evidence from the defendants on any cross-examinations leading
up to the examination.
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38.
The second of GSK's stated objections to portions of the Lipscombe Affidavit is that
they are based on hearsay. Again, the defendants do not identify why any particular
paragraph cannot fall under the exceptions to hearsay typically permitted in certification
motions. Attached hereto as Table 2 is a chart prepared by the plaintiffs describing why
each paragraph of the Lipscombe Affidavit is appropriate by reference to relevance and
the standards for admissibility of evidence, including hearsay evidence, on certification
motions.
39.
A third of GSK's objections are that Dr. Lipscombe engages in argument. The
submissions in Table 2 are responsive to this complaint.
(v) Proposed Compromises
40.
While not conceding the merits of GSK's argument, the plaintiffs are prepared
to reword or remove certain language from the Dull Affidavit and the Lipscombe
Affidavit. The plaintiffs respectfully submit that GSK's overly fastidious arguments detract
from the central issues that need to be determined on the motion for certification.
41.
It does not serve the interests of the Court or the parties to argue about minutia. It
is for that reason alone that the plaintiffs are prepared to remove some of the
contested wording.
CONCLUSION
42.
GSK's motion to strike the entirety of the Dull Affidavit and portions of the
Lipscombe Affidavit is meritless, overly technical, and purely tactical. Since much, if not
all, of the impugned language could readily be admitted through cross-examination of
GSK's affiants on certification, all that might be gained from the motion is further delay
and increased cost of the certification motion.
43.
The affidavits forming the certification record providing “some basis in fact” for the
proposed common issue.
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44.
The plaintiffs respectfully submit that GSK's fastidious arguments detract from the
central issues that need to be determined on the motion for certification. It is not in the
interests of the parties or the Court to engage in a debate over minor wording. For that
reason alone, the plaintiffs are prepared to remove o r r e p l a c e certain wording from
the affidavits.
45.
Where, however, GSK clearly stretches the bounds of its argument, the plaintiffs
maintain that their evidence is clearly admissible.
ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 30TH DAY OF APRIL, 2014.
WAGNERS
RAYMOND F. WAGNER, Q.C.

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