Rather than combining a multitude of plaintiffs into a class action, lawyers are increasingly advancing their product liability cases within the emerging mass tort model.
“It’s a very exciting time for both plaintiffs and defence counsel as we work through the defence of these cases and what procedural and strategic options are available to us and our clients,” says Robin Linley, a partner at Blake, Cassels & Graydon LLP practising commercial litigation with a focus on product liability class action defence.
Robin Linley
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“As a lawyer, I’m very excited about the opportunity to litigate cases, and the opportunity to deal with a series of individual cases represents a new front in terms of defence and allows for a lot of creativity in terms of strategic thinking.”
Claims involving medical devices and other medical and pharmaceutical products are one area where lawyers use mass torts. Jill McCartney says they provide another “tool in your belt” when deciding how to commence and resolve cases. McCartney is a partner at Siskinds who practises health law and acts for plaintiffs.
Jill McCartney
Mass tort litigation, also called “batch” or “serial” claims, is well known in the US. But this trend is relatively new in Canada, says Peter Kryworuk, a partner at Lerners LLP.
“Every province has legislation, regulations, and procedure for how to conduct a class action. … There’s also a significant body of jurisprudence that dictates the procedure.
“Whereas, for mass tort litigation, there’s no legislation,” he says. “We have to work within the existing rules of civil procedure and use things like consolidation and joinder, and tools like case management, in order to bring those actions along.”
Peter Kryworuk
The “good news” is that this allows creativity for lawyers in how they manage cases and for courts in how they allow claims to advance, says Kryworuk, who has primarily represented the defence in mass tort cases.
In a mass tort, plaintiffs’ counsel pursues a whole series of individual claims involving the same general issues rather than proposing a national class action. Most of the lawsuits engaging this model involve medical devices, primarily orthopedic and women’s health products, according to “New Developments in
Mass Torts North of the Border,” a recent article written by Linley and Blakes colleague David Côté. But, the authors note, they also involve pharmaceuticals and over-the-counter medicines. Mass torts can bring together less than a dozen, or more than one hundred plaintiffs, say the authors.
Linley and Côté suggest four main reasons for this emerging trend in Canada.
Pursuing a mass tort rather than a class action allows “entrepreneurial plaintiffs’ firms to seek a seat at the settlement table while avoiding the corresponding risk,” which could include a “protracted and potentially difficult certification fight.” The mass-tort route also avoids disputes over carriage, where plaintiffs’ lawyers vie for the right to represent the class. Lawyers may also be motivated by recent changes to legislation governing Ontario class actions, which they perceive as making the certification test less favourable to plaintiffs. And, as the level of injury can vary between class members, lawyers see mass torts as providing more bespoke recovery for individual claimants.
On that last point, Linley and Côté note that there is no data – to their knowledge – that indicates plaintiffs recover greater amounts in mass tort than class action settlements.
For defendants, there are advantages and disadvantages to mass torts, says Linley, who acts for pharmaceutical and medical device product manufacturers.
A primary advantage of the mass tort model is that defendants typically have greater access to individual medical records, which are vital in assessing liability issues. He says that questions of causation and damages commonly turn on the evidence of a particular plaintiff’s circumstance.
“For a host of different reasons in the class-action context, you do not typically get access to each class member’s individual records.”
The more evidence a defendant has on the individual people bringing the claims, the more opportunity there is to assess the claims’ merits and develop potential defences, says Linley.
There are also document-access advantages on the plaintiff side, says McCartney. “In a class proceeding, we’re much farther down the road before we get to see defence productions, and that would not be the case if you’re commencing your cases” individually.
She says it is also an advantage to be spared the preliminary procedural motion involved in a class action, as cases can advance more quickly toward trial. This “cuts both ways,” she adds, because when not creating a class and advancing the interests of that class, the plaintiffs’ lawyer is limited to the clients known to them.
It is normal for defendants to face a class action and individual tort claims simultaneously. “One firm might go out and commence a class action involving a particular product,” says Linley. “You may then have a different firm that goes out and commences a whole series of individual actions following the mass tort model.”
In a class action, courts will assess what procedure will best address the interests of the class, whether it is a class proceeding or alternatives such as individual litigation. Defendants fighting both a class action and mass tort can point to the latter to argue that there are viable alternatives to give access to justice to the class and, potentially, also argue against the viability of the class action, says Linley.
There are also disadvantages for defendants, he says.
In a class action, when the parties have negotiated a resolution and settled, there is typically a class-wide release, and defendants know that no future claims will be brought involving the product at issue. In a mass tort settlement, defendants and plaintiffs have the challenge of not knowing what is still out there.
“That release will effectively operate to bar future claims that may be brought by individuals who do not participate in the settlement program and who haven’t otherwise opted out,” says Linley.
“How long the tail is, what future claims may still be brought, and how those may be managed, is a complex analysis that often is made without all the necessary information that one may want to have on both the plaintiff and the defendant side.”
The same principle that applies in a class-wide release creates a situation where the plaintiff’s lawyers may repeatedly need to argue the same issues, says McCartney. When trying a case as a class action, the court will deal with the common issues in a common issues trial before addressing individual issues. If litigating the case as a mass tort, there is no common-issues trial that binds the whole class.
“If you’re doing it as a mass tort, you might have a group of 100 cases, but that may not be the totality of what would have been the class,” she says. “So, litigation lawyers could be trying issues over and over again, having to call experts multiple times.”
In the US, there is a system for multidistrict litigation (MDL), which allows federal courts to aggregate and manage a whole series of individual claims filed across the country. For constitutional and other reasons, there is no similar procedure in Canada, says Linley. Lawyers must manage mass torts “largely ad hoc,” and case management is unlikely to be an option in most cases, especially when there are claims inside and outside Ontario.
He says that not having “ready-made rules” in play to manage mass tort inventories holds advantages and disadvantages for both plaintiffs and defendants.
“While still obviously advocating and representing our clients’ interests, in the absence of those rules, [plaintiff and defendant counsel] often need to work out processes together for how cases may go through common discovery or may be worked up for trial together,” says Linley. “We need to think through what the process and procedure will be and how best that does or does not suit our respective clients’ interests.”
“We’ll continue to see how this evolves and whether the Rules of Civil Procedure grow with it or whether other initiatives are put in place. How much this trend continues to increase in the future is yet to be seen, but I expect this will be a model that we will see in play for quite some time.”