B.C. court certifies class-action lawsuit against makers of Alesse birth control pills

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.

Unexpected pregnancies

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.

"She wished to have children someday but not at such a young age," the ruling says. "She would have preferred that she and her partner were more established in their careers and financially stable before having children."

Alyssa McIntosh found out she was pregnant while taking Alesse in October 2017 — before the Health Canada advisory. She suffered a miscarriage between six and nine weeks later.

MacKinnon's pills were from the lot that was the subject of the Health Canada warning but McIntosh's were not.

The two women both claim they became pregnant as a result of negligence by Pfizer and Wyeth.

They are suing for general damages, income loss and the cost of purchasing Alesse when the product was defective.

According to the ruling, they claim that testing shows even pills that were not broken or chipped contained lower than expected amounts of estrogen — one of the key elements in suppressing ovulation.

The women have also accused the two pharmaceutical firms of misleading or deceptive practices and of failing to properly disclose all the risks associated with the drug.

At least 138 potential claimants

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 two companies argued that MacKinnon and McIntosh had not met any of the requirements.

They alleged that the claims were too broad and that they had not shown that common issues existed.

One of their scientific experts also argued that the level of estrogen measured by the lab hired by the law firm would not have reduced the effectiveness of the Alesse pills.

Horsman noted that the companies had made submissions indicating they complied with Health Canada's standards, but she said that's an argument they can make at trial.

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.