Litigation – Product Liability

MASS TORT LITIGATION EMERGING IN CANADA

Individual settlements in lawsuits involving allegedly defective pelvic mesh devices suggests 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 a large number of 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.

In May 2014, Health Canada issued warnings about complications arising from mesh implants, which it first licensed in 1998. Plaintiffs’ lawyers filed at least three class actions. But, encouraged by the results of parallel litigation in the US, Paul Miller and his colleagues at Will Davidson LLP in Toronto 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. In April, 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.

Ironically, the judgment may prove a catalyst to the mass torts approach. While refusing to certify the class action, Justice Perell allowed the plaintiffs to bring an “alternatives motion” to determine whether their claims could proceed in a different way, including “some newly devised procedure for a mass claim.”

One of the issues with the mass tort approach, however, is of course that the cost of litigation militates against lawyers taking on smaller claims. 

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