Pharmaceutical Class Actions and Effective Behaviour Modification: Avoiding Ford Pintos Through Punitive Damages

The author argues that a liberal application of punitive damages may be required in certain pharmaceutical class actions to ensure effective deterrence of reprehensible behaviour by drug manufacturers. The infamous American civil case regarding the Ford Pinto is used to illustrate the danger of failed deterrence and is compared to pharmaceutical class actions in Canada. First, the deterrent role of class actions and punitive damages is examined, considering class action theory and the approaches to class actions and punitive damages set out by the Supreme Court of Canada. Second, the problem of failed deterrence in pharmaceutical class actions is discussed and an expanded application of punitive damages is proposed as a potential solution. Third, the proposed approach is assessed in light of the current Canadian law regarding punitive damages. Fourth, the pharmaceutical regulatory regime in Canada is discussed and the argument for a regulatory compliance defence to punitive damages is addressed. Finally, the author addresses potential objections to the proposed application of punitive damages, including the need for innovation and the deterrent effect of negative media coverage.