A recent Ontario decision refused to certify a product liability class action against medical companies over injuries suffered from a medical device, proving that not all class actions are automatically certified.

The Facts

The proposed class action was initiated by a group of plaintiffs against a group of related medical companies. The plaintiffs targeted a medical device, an IVC filter, that is an implantable device used to trap blood clots before they reach the heart and lungs.

The plaintiffs alleged that the companies owed them a duty of care to design and manufacture IVC filters fit for their intended and/or reasonably foreseeable use, to conduct appropriate testing and monitoring to identify risks, and to adequately warn patients, physicians, and Health Canada of risks from the use of IVC filters. They alleged that the companies were negligent and breached their duty of care and as a consequence the plaintiffs suffered injuries and damages. They alleged that the design of the IVC filters caused apparent device malfunctions and injuries that increase the longer the device is in place in the body. They claimed pecuniary and special damages of $500,000 for each person implanted with the device and $100,000 for each Family Law Act or similar legislation claimant. In addition, the plaintiffs claimed punitive damages of $20 million.

The medical companies resisted certification of the class action and submitted that, with the exception of the identifiable class criterion, the proposed class action did not satisfy the criteria for certification as a class action.

Class Action Certification Criteria

 As stated in its decision, a court has no discretion and is required to certify an action as a class proceeding when the following five-part test in s. 5 of the Class Proceedings Act are met:

(1) the pleadings disclose a cause of action;

(2) there is an identifiable class of two or more persons that would be represented by the representative plaintiff;

(3) the claims of the class members raise common issues;

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

(5) there is a representative plaintiff who:

(a) would fairly and adequately represent the interests of the class;

(b) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

(c) does not have, on the common issues for the class, an interest in conflict with the interests of other class members

The Decision

At the outset, the court described the purpose and requirements for certification of a class actions:

“For an action to be certified as a class proceeding, there must be a cause of action shared by an identifiable class from which common issues arise that can be resolved in a fair, efficient, and manageable way that will advance the proceeding and achieve access to justice, judicial economy, and the modification of behaviour of wrongdoers. On a certification motion, the question is not whether the plaintiff’s claims are likely to succeed on the merits, but whether the claims can appropriately be prosecuted as a class proceeding.”

The court noted that, while a certification motion is meant to determine how the litigation should proceed and does not address the merits of the claim, the plaintiffs must show “some basis in fact” for each of the certification criteria. It stated that in the context of the common issues criterion, this involves a two-step requirement that: (1) the proposed common issue actually exists; and (2) the proposed issue can be answered in common across the entire class.

The court stated that: “The some-basis-in-fact standard sets a low evidentiary standard for plaintiffs, and a court should not resolve conflicting facts and evidence at the certification stage or opine on the strengths of the plaintiff’s case.”

To plead a reasonable cause of action for design defect, a plaintiff must identify the design defect that made the product dangerous to use or that made the product more dangerous to use that it would have been had other and safer design choices been made. After reviewing the evidence presented by the plaintiffs, the court was not satisfied that they had met the some-basis-in-fact standard. The court found that the device at issue was inherently dangerous, but the plaintiffs had not identified an actual design defect. The court concluded that the plaintiffs had not satisfied the cause of action criterion and the common issues criterion for a design negligence case.

The court found a similar problem with the plaintiffs failure to warn allegation. After reviewing the evidence, the court again found that the plaintiffs had not demonstrated how the IVC filter warnings to physicians were inadequate and stated: “In the immediate case, whether individual Class Members were adequately or inadequately informed by their own physicians is an issue for the individual issues trials, if the action got that far. Informed consent is not a class-wide common issue.”

As a result, the court dismissed the certification motion.

For Help

The manufacturers, designers and retailers of consumer goods are obligated to ensure that their products meet safety standards and will not cause harm to consumers when put to their intended use. If you have suffered an injury as a result of a faulty or defective product, it is important to seek legal guidance as soon as possible, in order to preserve evidence for a possible lawsuit.

At Petker Campbell Postnikoff, our lawyers are experienced and effective litigators who will work to represent your interests against the providers, creators and retailers of defective or faulty products. Call us today at 519-886-1204 or contact us online to arrange a no-obligation consultation with our knowledgeable and experienced personal injury lawyers.