Breast Implant Class Certification

In a 3-2 decision with far-reaching implications for conflicts of law, constitutional law and products liability, the British Columbia Court of Appeal on November 8, 2000 upheld the certification of a class proceeding against manufacturers of breast implants. The class encompasses women resident in any Canadian province other than Ontario or Quebec who received their implants anywhere in the world as well as women resident outside Canada who received their implants in any Canadian province other than Ontario or Quebec.

On the jurisdictional issue, the defendant manufacturers argued that the class must be limited to women whose individual claims have a real and substantial connection to the province, but the majority (Huddart, Rowles and Ryan JJ.A.) agreed that comity, the interprovincial flow of commerce and the existence of a certified class proceeding allowed the traditional approach to be relaxed. Consequently, the existence of a common issue of fact constituted a sufficient connection to the province.

The dissenting members of the panel would have refused the class proceeding in its entirety, as they found that the common issue (i.e. “are silicone gel breast implants reasonably fit for their intended purpose?”) related to contract rather than tort, which was the sole claim subject to class-wide determination. Finch J.A. further held that it was not possible to determine whether a breast implant was unfit without examining the specific product in relation to specific plaintiffs, and that defectiveness could not be determined without considering the issue of causation.

The majority disagreed, holding that the defendants should have produced evidence in support of their position that fitness could not be addressed generically. Further, the majority identified the first step in every products liability case alleging negligent design, manufacture or marketing to be the identification of the risks created by the product, the determination of whether they are capable of causing any of the injuries alleged, and assessment of whether they outweigh any social utility the product may have. According to the majority, determination of whether the product is defective under ordinary use or, although non-defective, has a propensity to injure, was common to all class members, would move the litigation forward and could fairly and efficiently be undertaken at this initial stage of the proceeding.

Acting for the representative plaintiff were Mark Steven of Connell Lightbody, David Klein of Klein, Lyons, and J. Pearce and Kevin Whitley of Acheson & Company. Minnesota Mining and Manufacturing Company (3M) was represented by J. Kenneth McEwan and Ludmila B. Herbst of Farris, Vaughan, Wills & Murphy; Bristol-Myers Squibb Company, Medical Engineering Corporation and the Cooper Companies, Inc. were represented by W.S. Berardino, Q.C. of Berardino & Harris and Allan P. Seckel of Fasken Martineau DuMoulin LLP; and Baxter Healthcare Corporation was represented by Oleh W. Ilnyckyj and Mari Worfolk of Swinton & Company. Harvey Groberman, Q.C. acted for the Attorney General of British Columbia, who intervened (against the defendant manufacturers) on the jurisdictional issue.