Voutour v. Pfizer Canada Inc. Settlement Decision
The decision on the settlement agreement in Voutour v. Pfizer Canada Inc was released today.
Justice Perell held that the terms of the Settlement Agreement was in the circumstances fair, reasonable, and in the best interests of those
affected by it.
[61] The proposed settlement is within the range of reasonableness. Class Counsel, with their medical and science experts, have done considerable work and appear to have come to a fully-informed assessment of the likelihood of success and o·f the risks of failure in the litigation.
[62] The Representative Plaintiffs confront Defendants that are a fonnidable foe and the litigation and the settlement negotiations, which had the benefit of an experienced class action judge, have been contentious and hard fought and the settlement agreement appears to reflect these difficult negotiations. There is nothing to suggest any collusion Or that Class Counsel were less than resolute in seeking a settlement that they perceived as rational and fair and in the best interests of the Class Members.
[63] The settlement has the benefits of settlements generally. It provides certainty of some recovery and it avoids the delays and uncertainties of pursuing a common issues trial to be followed by individual issues trials. For some Class Memhers, the settlement will achieve an immediate success that would have been at least delayed and might never have corne, unless they had the resoluteness to prove causation at individual issues trials that would be several years away.
[64] The allocation of damage awards for the Compensable Injuries, the definition of what are Compensable Injuries, and that temporal requirement connecting the drug to the injury are within the range of reasonableness and reflects the genuine difficulties the Class Members would confront if they were pressed by contested proceedings to prove a connection between particular ailments or conditions and the usage of the drugs.
[65] Although as Mr. Moorely notes, it is a $12 million settlement of a $1.5 billion dollar claim as pleaded. The pleaded claim – as all too typically is the case – bears no rational relationship to the Defendants’ genuine exposure to liability, and the pleaded claim does not account for the genuine risks of proving liability, including the difficulties of proving a breach of a duty of care and of proving causation of harm.
[66] In the United States litigation, Pfizer Inc. settled claims on an individual basis, and the net return to an. individual claimant was $69,178. In contrast, in the case at bar, eligible claimants will receive $5,000, $25,000, or $100,000 depending on the class member providing documentary proof that he or shtl was prescribed Bextra and/or Celebrex and contemporaneously with the prescription of the drug he or she suffered from one of a list of Compensable Injuries. Thus, under the Canadian settlement, it appears that the most serious claims would receive compensation comparable to that achieved in the United States. Using the United. States litigation as some measure of what is fair and reasonable, the contrast suggests that the Canadian settlement is reasonable and fair. The proposed settlement has the advantage that for the Compensable Injuries, causation of harm is not a factor.
[67] Based on Class Counsel’s estimates, the settlement fund should be adequate to pay the eligible claimants without any reduction.
[68] I appreciate that the proposed settlement docs not provide compensation for all injuries that occurred to users of Bextra and Celebrex. However, the identification of compensable injuries is rational and reflects the considerable litigation risks that other types of injury could not be proven to have a link to Bextra or Ce1ebrex usage. Similarly, the effective date of injuries occurring before thc end of 2005 is rational and retlective of a genuine and serious litigation risk.
