Canadian Superior Court refuses authorization for class action against Merck & Co

Canada’s Quebec Superior Court recently dismissed a motion filed by Option consommateurs for authorization to institute a class action against Merck Canada and US parent Merck & Co (NYSE: MRK) that was being sought on behalf of all natural persons in Quebec who had purchased or taken a drug marketed by the companies under the name Fosamax (alendronate sodium), which is prescribed for treating and preventing osteoporosis.

The petitioner accused Merck of negligence and failure in its duty of safety and its duty to inform in marketing the drug, whose use is linked to osteonecrosis of the jaw - a rare condition disclosed in the product monograph. The petitioner also alleged that the drug could increase the risk of atypical fractures, noted law firm Norton Rose OR commenting on the case. It was seeking reimbursement of the price paid for the drug, as well as punitive and compensatory damages.

The Superior Court dismissed the motion because the petitioner failed to show that the criteria in Article 1003 of the Code of Civil Procedure were satisfied. The court found that the individual questions concerning the existence of harm, a causal relationship and exculpatory grounds were so numerous and substantial that the test in Article 1003(a) of the code was not met.