A B.C. Supreme Court judge has given the green light for a class-action lawsuit to proceed against the makers of Alesse birth control pills.
In a decision released Tuesday, Justice Karen Horsman found that two women who claim they got pregnant in 2017 while taking Alesse have met the bar needed to pursue a negligence claim against pharmaceutical companies Pfizer Canada and Wyeth Canada.
The class action applies to Canadians who took the pills between Jan. 1, 2017, and April 30, 2019. The judge’s ruling is not a decision on the merits of the claim.
Problems with Alesse came to light in December 2017 when Health Canada issued an advisory about reports that two lots of Alesse contained pills that were roughly half the proper size.
The warnings concerned Alesse 21, which contains 21 pink active tablets, taken before a seven-day break, and Alesse 28, which contains seven white “reminder” pills to be taken after the 21 active pills.
Customers were advised to check their packages and return them to a pharmacy if they contained unusual pills. The health agency followed up with general advisories reminding women to check their pills for inconsistencies before taking them.
Ms. Taylor MacKinnon had been taking Alesse since 2014. She received a positive pregnancy test on Dec. 16, 2017, ten days after her pharmacist told her about the Health Canada warning.
According to Horsman’s ruling, MacKinnon left her name and number with Health Canada and with Pfizer but never heard back from either party. She gave birth to a daughter in August 2018 when she was 24.
According to Horsman’s ruling, at least 138 people have contacted the law firm handling the claim about their experience taking Alesse.
“The Health Canada Adverse Reaction online database lists 38 women who provided adverse reaction reports for Alesse,” the judge wrote.
“The total number of class members will only be known with reasonable certainty once notice is issued and individuals come forward.”
To certify a class-action lawsuit, a judge is not supposed to decide the facts of the claim, but to determine if it has five components needed to continue: a cause of action; a class of two or more people; common issues to be argued; a representative plaintiff and a determination that a class action is more appropriate than individual claims.
The ruling means the lawyers for the two representative women can now move ahead with plans that include notifying proposed members of the class action of its existence, producing documents for discovery and exchanging expert reports.
The claims have not been proven in court.
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