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We can’t spell Canada.
We have enough trouble with “USA.”
We don’t speak Canadian.
And we sure as heck don’t do Canadian law.
But just when the United States seems to be coming to its senses about claims for medical monitoring, Canada slipped a gasket. In Peter v. Medtronic, Inc., No. 05-CV-295910CP, slip op. (Ontario Sup. Ct. Justice Dec. 6, 2007), a Canadian trial court certified a class of patients implanted with certain of Medtronic’s defibrillators, whether or not the defibrillators failed.
The named plaintiffs brought this case under the Canadian Class Proceedings Act of 1992. (Heck, we’ve been dealing with these things since the Federal Rules were amended in 1966. You’d have hoped the Canadians would have learned from our experience and crafted rules that permitted class actions where they made sense, but prohibited them where they’re goofy — like where the court recognizes that many of the class members probably suffered no injury. No such luck.)
To our American eyes, the requirements for class certification in Canada look an awful lot like the requirements in the good ol’ U.S. of A: The complaint must (1) disclose a cause of action, and (2) plead an identifiable class (although only of “two or more persons,” which would look a little thin under our “numerosity” requirement). The plaintiffs must then show some basis in fact that “the claims or defences of the Class members raise common issues,” a class proceeding would “be the preferable procedure for the resolution of the common issues,” and a representative plaintiff or defendant (1) would “fairly and adequately represent the interests of the class,” (2) “has produced a plan for the proceedings” that is workable and addresses class notice, and (3) has no “interest in conflict with the interests of other Class members” on the common issues. Slip op. at 5.
Those rules leave implicit a couple of the requirements that are implicit under the American (federal) rules: a live claim and the named plaintiff’s membership in the class. The Candian rules seemingly sweep “typicality” into some other consideration, or perhaps do away with it altogether. “Superiority” becomes ” “preferable procedure,” and common questions seemingly need not “predominate.” The requirement of providing a trial plan, which developed only in American case law, is statutory in Canada.
But, over all, this feels pretty familiar.
Other stuff feels familiar, too: Like a classic misuse of words. Medtronic apparently argued that a conspiracy claim was “duplicitous” (id. at 6) and that conspiracy is “duplicitous of claims in negligence.” (Id. at 7.) Unless the Queen’s English is different from the President’s, that would be “duplicative” guys, wouldn’t it?
When the court analyzes class certification, it blows off the fact that some class members were not damaged with the assertion that “patients who did not have their Defibrillators explanted may be able to prove damages, even if they cannot prove that they suffered a foreseeable and recognizable psychiatric illness as a result of the battery problem.” Id. at 14. Sounds like medical monitoring, pure and simple.
The court finds nine common issues sufficient to justify class treatment, and it makes the same error seen in the United States so often: It accepts common questions that are utterly generic and so would exist in any case. Among the common questions accepted by the court are, “Did the Defendants .. owe a duty of care to the Class . . . ?,” “[D]id the Defendants . . . breach such duty?,” “Should one or both of the Defendants pay punitive damages to the Class?,” And so on.
Those so-called common questions have nothing to do with this particular lawsuit.
How about these for common questions:
“Is the defendant liable?”
“If the defendant is liable, should the money go to the plaintiff?”
“Should the defendant be ordered to pay prejudgment interest? If so, should it be simple or compound interest?”
Wait a minute! We didn’t make up that last one! It’s the ninth common question, right there on page 16! Canadian reality has outrun our imaginations!
When Medtronic identifies factual differences among the members of the putative class, the court says that, if conflicts exist, the “common issues judge” (those words are beyond our understanding, but we don’t much like the sound of ’em) can create subclasses as needed. That’s the “certify now, worry later” approach that has largely been discredited in the States, and it suggests that Canadian courts don’t ask too much of plaintiffs in the way of a workable trial plan, despite the statutory requirement of providing one.
The court says that individualized issues don’t defeat class certification, because medical records will presumably supply the necessary proof, and resolving the common issues “will significantly advance the claim. A class proceeding will, I believe, be manageable.” Id. at 21.
We doubt it. We suspect that a class proceeding would break down into a series of individual cases that would quickly overwhelm the court. But, unless life is different north of the border, the mere fact of class certification will raise the stakes for Medtronic, and the company will be forced to settle before trial.
We’ve seen this story before, and we hate to see it spreading around the globe.