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Civil procedure — Class actions — Certification — Requirements for certification — Product liability — General causation — Expert evidence of a workable methodology for proving class-wide harm — How should the certification requirement of expert evidence of a workable methodology for proving harm on a class-wide basis be applied to the issue of general causation in product liability and other physical injury class actions?

Mr. Miller commenced an action alleging that Merck Frosst Canada negligently failed to warn of the risk that sexual dysfunction may persist after discontinuing treatment with Propecia, sold for the treatment of male pattern baldness, and Proscar, sold for the treatment of prostate problems, which contain the same active ingredient in different dosages. The action also alleged deception under the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2. Mr. Miller applied to have the action certified as a class action and to become its representative plaintiff. He had taken the medicine for male pattern baldness in 2008 and 2009, and experienced sexual dysfunction during and after treatment. At the time, the product monographs warned of a risk of sexual dysfunction, but suggested that it normally resolved when treatment was discontinued. In November 2011, the monographs for both drugs were updated to warn about the possibility of persistent sexual dysfunction after treatment was discontinued. It was common ground that the active ingredient was effective because it inhibited the production of dihydrotestosterone. Mr. Miller’s expert witness said that it was plausible and expected that sexual side effects would occur, and Merck’s studies did not dispute his opinion that it was “biologically plausible” that sexual side effects could persist in some individuals after the medication was discontinued.

The certification judge certified the action and appointed Mr. Miller as representative plaintiff. The Court of Appeal dismissed the appeal.