Law Times

Law Times • June 8, 2015 Page 3 www.lawtimesnews.com Door opens to mass torts as alternative to class actions BY JULIUS MELNITZER For Law Times ith recent rulings showing mixed results for class ac- tions in a medical device case, a growing series of al- ternatives is emerging for plaintiffs seeking redress in product liability claims. Before the enactment of Ontario's Class Proceedings Act, individual claims were the single realistic choice. For the most part, however, they worked only for victims with claims that were strong and large enough to make counsel take a chance on their success. With the advent of the Class Proceed- ings Act in 1993, all of that changed as plaintiff 's counsel could group a host of claimants, regardless of the size of their claims, into a single group. The general trend for many years, then, was to define a class and seek to certify it. But class actions often face sig- nificant delays and give individual claim- ants, especially the ones with serious in- juries, very little control over the course and results of the proceedings. Several years ago, Paul Miller of To- ronto and his firm, Will Davidson LLP, tired of waiting for the system to change. Encouraged by the results of the Vioxx litigation in the United States, they de- cided to forego a class action in favour of a mass-tort approach for their 215 clients with claims arising from allegedly defec- tive pelvic mesh devices despite the fact that two law firms in London, Ont., Sis- kinds LLP and McKenzie Lake Lawyers LLP, had instituted class actions. Mass-tort lawsuits cover a much broader range of claim types than class actions. They're particularly useful when defective products injure a large number of consum- ers. Because defects can cause a wide range of problems for claimants, the cases may be difficult to group into a single class. "For example, it's almost impossible to get drug or medical device cases certified in the U.S., but that hasn't meant that there's no access to justice," says Michael Eizenga of Bennett Jones LLP. "While these cases may not normally be viable as one-off for law firms, they become so when plaintiff 's counsel and even trial lawyers' organiza- tions co-ordinate their actions and assem- ble a large number of cases." Mass-tort cases in the United States, however, are subject to the multidistrict litigation process that the federal court system has developed. The multidistrict litigation regime consolidates complex cases with similar issues to have them managed by one court that handles all case management matters and aggregates discovery proceedings for the lawsuits. In Canada, of course, there's no federal system that's jurisdictionally analogous to the one in the United States. Here, most mass torts are the domain of provincial superior courts. And as the class action experience and jurisprudence regarding national classes has shown, melding a co- hesive, expeditious process among these courts can be a daunting challenge at times. Still, Will Davidson decided the mass- tort approach was worth a try. On examin- ing the results of the Vioxx litigation, Miller discovered the U.S. defendants had paid out US$4.85 billion to settle the claims of some 45,000 individuals after plaintiffs and defendants each won five of 10 cases tried individually. The settlements amounted to about $100,000 for each claimant. By comparison, the Canadian class ac- tion settlement garnered only $36.8 million with a $5,000 maximum available to claim- ants who suffered non-fatal strokes and a roughly $50,000 maximum available to those who suffered more serious problems. In May 2014, however, Health Canada issued warnings about complications arising from various transvaginal mesh implants that it first licensed in 1998. Liti- gation had already begun in the United States where a mass tort approach has seen plaintiffs succeed in eight of the nine cases that have gone to trial. Most recent- ly, a Delaware Superior Court awarded US$100 million to a woman who suffered serious injuries from the mesh devices. Miller is proceeding along the same lines in Canada. "The Vioxx experience convinced us that we needed to try some cases to set the parameters of who would be included in any final settlement," says Miller. "In a class action, if you lose once, you're done. When you have 215 cases and lose one, you can analyze the weaknesses and per- haps rectify things for the next trial." The approach seems to be working. To date, at least one of the defendants in Mill- er's individual cases has demonstrated an awareness of the results in the United States and the continuing risks it faced as the next case loomed. The company has entered into settlement negotiations with some 41 of Miller's clients, settling 33 of them. Meanwhile, the results in the Cana- dian class actions have been mixed. In April, Justice Paul Perell of the On- tario Superior Court of Justice refused to certify a case agaisnt Bard Canada Inc. in- volving 19 different pelvic mesh products. Perell ruled the plaintiffs hadn't established a defect common to all of the products. Ironically, the judgment may prove to be a catalyst to the mass-torts approach. While refusing to certify the class ac- tion, Perell allowed the plaintiffs to bring an "alternatives motion" to determine whether their claims could proceed in a different way, including "some newly de- vised procedure for a mass claim." Michael Peerless of McKenzie Lake Lawyers, who represented the plaintiffs in that class action, says Perell acted on his own initiative. "Neither side argued for an alterna- tives motion," he says. "So despite my cli- ents' disappointment over the refusal to certify, there's something going on here. Perell certainly opened the door to mass- tort proceedings." The picture became somewhat murkier in late May when Perell certified a second class action involving mesh devices manu- factured by American Medical Systems Inc. "The difference between the AMS case and the Bard case is that the Bard case was framed as one class action that involved different devices while the AMS case consists of two class actions and two different, but related, devices," says Dan- iel Bach of Siskinds, who represents the class in the American Medical Systems actions. So what's the best way for claimants to proceed? According to Bach, both class ac- tions and mass torts are good approaches. "What we as a profession need to be con- cerned about is that those who allege harm have their day in court," he says. 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