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What follows is a guest post about a recent favorable development in Canadian drug/device litigation.  We’re not Canadian lawyers, so we gladly outsource Canadian developments to those who are, such as these guys – Mike A. Eizenga, Gavin H. Finlayson and Ashley L. Paterson, of Bennett Jones LLP – who won the case in question.  As always, our guest posters are 100% responsible for their content, and thus entitled to 100% of the credit or blame, as it may be.  Here goes:


Certification was denied in a recent proposed multiple-model product liability class action before the Ontario Superior Court of Justice in O’Brien v Bard Canada Inc

Class actions are more common in Canada than the US, due in large part to the low bar for certification of an action as a class proceeding in Canada.  Although all Canadian jurisdictions, with the exception of the three territories and the province of Prince Edward Island, have their own class proceedings legislation, the test for certification of an action as a class proceeding is substantially similar across all common law provinces. In Ontario, there is a five-part test under section 5(1) of the Class Proceedings Act, 1992, which must be met in order for an action to be certified:

(a) the pleadings must disclose a cause of action;

(b) there must be an identifiable class of two or more persons;

(c) the claims of the class members must raise common issues;

(d) a class proceeding must be the preferable procedure for the resolution of the common issues; and

(e) the representative plaintiff must fairly and adequately represent the class, have a workable litigation plan and have no conflicts with the other class members.

This case concerned over 15 different medical products [editor’s note: that’s as bad as California food litigation] intended for permanent implantation in the female pelvis to treat various types of pelvic organ prolapse and stress urinary incontinence. The products differed in multiple ways, including their material makeup, shape, size, weight, density, weave, porosity, flexibility, configuration, fixation methodology, design purpose and product warning. The plaintiffs alleged all of the defendants’ products were negligently designed and that it failed to warn of their associated dangers.

In the US, cases with similar allegations are proceeding by way of multi-district or “mass tort” litigation, but not by way of class action.

In the present case, Justice Perell set out the test applicable in negligent design cases as follows:

Whether a manufacturer breaches its duty of care in designing a product depends upon a risk-utility analysis that measures whether the utility of the chosen design outweighs the foreseeable risks associated with the chosen design. The risk-utility analysis requires weighing any foreseeable risk against the foreseeable utility of the product based on the information available to the manufacturer at the time of distribution or implantation and without the benefit of hindsight.

Prior to this case, product liability class actions were routinely certified in Canada.

The case turned on Justice Perell’s analysis of the inadmissibility of the majority of the plaintiffs’ evidence, the lack of an identifiable common design feature across the proposed class as well as the preferable procedure analysis.

Regarding the proposed common issues, Justice Perell found that the defendant’s products did not have a common design feature that could be extrapolated across the class. He further found that each of those products have a different risk-benefit profile. Further still, the court held that the plaintiffs’ expert witness and non-expert witnesses did not provide admissible evidence to show a singular or common design defect across the defendant’s products.

Justice Perell found that there was no basis in fact to support the general causation issue proposed by the plaintiffs – that being “can the defendants’ pelvic mesh products cause or contribute to injuries, conditions and complications” – because that question “wants for commonality.” Justice Perell endorsed the recent decision in Charlton v. Abbott Laboratories Ltd., 2015 BCCA 26 [editor’s note:  subject of another guest post, here], noting that where a plaintiff seeks to address questions of causation on a class-wide basis as the foundation for his or her class action, there must be some evidence of a methodology that will enable the plaintiff to prove causation on a class-wide basis.

Regarding preferable procedure, Justice Perell found that where there is no basis in fact for common issues, there is no basis in fact for a class action satisfying the preferable procedure criterion. As a result, he found that a class action in this case was not the preferable procedure.

Justice Perell refused to certify the class action, but left open the option for the plaintiffs to bring an “alternatives motion” on the basis of sections 5(4), 7, 12, 13, 17(3), (4) and (5), 19, 29 and 35 of the Class Proceedings Act.

This decision is illustrative of the fact that, even in Canada, not all product liability cases are suitable for certification. The plaintiffs in this case relied on the oft-cited reference in the caselaw that product liability cases are “quintessential class actions.” Justice Perell disagreed. He said “no type of class action is quintessentially certifiable, even a product liability class action.” Further, that in multiple-model product liability class actions, the plaintiffs must put forward enough evidence to show that there is a common design feature across all product models or, at the very least, some methodology that would enable the plaintiffs to prove causation on a class-wide basis.