Drug manufacturers’ appeal against judge’s decision to allow proof in negligence case dismissed

The Inner House of the Court of Session refused an appeal by Pharmacia Limited, which is owned by Pfizer Limited, who are being sued in connection with their production, marketing and distribution of the non-steroidal anti-inflammatory drug (NSAID) Celebrex.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Malcolm, heard that the defenders lodged a reclaiming motion against an interlocutor of the Lord Ordinary, Lord Beckett, dated 12 May 2017, allowing proofs in two actions brought by Ronald Richards and John Jarvie.

Serious adverse cardiovascular event

The pursuers in the two cases - the lead actions of about 70 brought against the defenders - claimed that they each suffered a “serious adverse cardiovascular (CV) event” as a result of being prescribed and thereafter ingesting Celebrex.

Both pursuers found on fault at common law on the basis that the defenders breached a duty to “bring any known defects, risks, dangers or side effects of the drug to the attention of consumers and medical practitioners”; and separately allege that Celebrex was a “defective product”.

The pursuers’ case, of failure on the part of the defenders to provide adequate information as to a material risk of the association of adverse CV events with long-term consumption of Celebrex, was based on common law “negligence” and “liability for damage” by virtue of section 2(1) of the Consumer Protection Act 1987.

The Lord Ordinary, having heard submissions on relevancy and specification, held that that pursuers sufficiently identified the medical events they found on as giving rise to their loss, and identified the duties said to have been breached and how those breaches led to the pursuers taking Celebrex on prescription.

They averred that but for the ingestion of Celebrex, they would not have suffered the loss, injury and damage for which they were seeking reparation.

Accordingly, the judge held that both the common law case and the case based on the 1987 Act should proceed.

‘Lack of specification’

However, the defenders presented three grounds of appeal complaining of lack of specification; that the pursuers failed to frame their cases with sufficient clarity and precision to allow the defenders know what they have to respond to.

It was argued that the Lord Ordinary has erred in holding that the case of alleged common law negligence was relevant and sufficiently specific to merit enquiry at a proof before answer, as the pursuers had failed to aver what the specific alleged “defects, risks, dangers or side effects” of the drug were.

The defenders also submitted that the Lord Ordinary erred in holding that the case based on the provisions of the 1987 Act was relevant and sufficiently specific to merit enquiry at proof, since the pursuers failed to specify in what way Celebrex was not as safe as persons generally were entitled to expect and failed to identify a deficiency in any warning.

Further, it was argued that the Lord Ordinary erred in holding that the pursuers’ averments in relation to fraud and deceit on the part of the defenders provided the defenders with fair notice of the case against them.

‘Fair notice’

But the appeal judges upheld the decision of the Lord Ordinary that the actions could proceed to proof.

Despite the defenders’ protests to the contrary, the judges did not accept that the defenders could legitimately say that they did not have fair notice of the case against them.

Delivering the opinion of the court, Lord Brodie said: “The Lord Ordinary took the view that, as pled, these were relatively simple cases, albeit encumbered with unnecessarily lengthy and detailed averments.

“He gave short shrift to the defenders’ arguments to the effect that the respective cases were irrelevant because of a fundamental lack of specification. We agree with the Lord Ordinary’s assessment and we propose to follow his approach when it comes to disposal.”