Product Liability litigation is generally understood to encompass representation of product designers, suppliers, manufacturers, wholesalers, distributors, retailers, end users (including both corporations and individuals) and their respective insurers in civil proceedings alleging personal injury or economic loss resulting from alleged defects in the manufacturing or design of a product, or failure to warn of dangers inherent in the use of a product. It also encompasses advising manufacturers and others within the distribution chain on advertising, marketing, regulatory, and recall requirements related to their products.
Mass Tort Litigation Emerging in Canada
Individual settlements in lawsuits involving allegedly defective pelvic mesh devices suggest that “mass tort” litigation is possible as an alternative to class actions in Canadian product liability cases.
Mass tort litigation, like class actions, arise when a defective product injures many consumers. Because defects can cause a wide range of problems for claimants, the cases may be difficult to group into a single class that satisfies the “commonality” requirement for certification of class actions. Mass tort lawsuits solve that problem by allowing cases to proceed individually. Claimants may have different lawyers, all of whom may share information, research, and resources. In many cases, the results of the first few trials become the principles governing settlement of the remaining cases.
This goes back to May 2014, when Health Canada issued warnings about complications arising from mesh implants, which it first licensed in 1998. Plaintiffs’ lawyers filed at least three class actions. Encouraged by the results of parallel litigation in the US, Paul Miller (formerly from Will Davidson LLP in Toronto) and his colleagues decided on a mass tort approach for the firm’s several hundred clients.
So far, plaintiffs have succeeded in seven of the eight parallel pelvic mesh litigation trials in the US. At least one of the defendants to Miller’s individual cases has noticed, entering into settlement negotiations with some 41 claimants and settling 33 of them. The eight plaintiffs who did not settle felt the offer was too low or felt that their symptoms had not yet reached the point where settlement was appropriate.
Meanwhile, the class actions are stalled. Justice Paul Perell of the Ontario Superior Court of Justice refused to certify a case involving 19 different pelvic mesh products manufactured by the Bard group of companies. Justice Perell ruled that the plaintiffs had not established a defect common to all the products, a requirement essential to certification.
In 2017, according to a Canadian Lawyer report, Justice Paul Perell did certify a class action against medical device manufacturer Boston Scientific Ltd., in what lawyers say is the first successfully certified contested action concerning transvaginal meshes in Canada.1
In Vester v. Boston Scientific Ltd., Justice Perell certified the action, which claimed the nine different devices manufactured by the company were negligently designed, and that Boston Scientific failed to warn the women of their potential risks.
Perell applied a rarely used subsection of the Class Proceedings Act, which gives judges the power to adjourn motions for certification to permit parties to amend their materials or pleadings, and to provide further evidence.
Boston Scientific argued that while the plaintiffs identified a common feature of all nine of its transvaginal mesh products, they had failed to establish that it was connected to their claims.
- Robinson, Alex. “Judge certifies transvaginal mesh class action.” Canadian Lawyer. February 23, 2017. https://www.canadianlawyermag.com/news/general/judge-certifies-transvaginal-mesh-class-action/274174.