Law Times

Law Times • apriL 18, 2016 Page 11 www.lawtimesnews.com Quebec leads product liability class actions Commonality challenges product liability suits BY JIM MIDDLEMISS For Law Times T here's no shortage of work for lawyers who specialize in product liability class actions, especially thanks to automakers and parts manufacturers. Factor in a growing array of pharmaceutical and implant cases and it's boom times in the class action product liability bar. "It's still a hot area," says Mi- chael Eizenga, a class actions lawyer at Bennett Jones LLP in Toronto. "The fact is class actions con- tinue to grow." Since 2010, there have been at least 297 product liability class actions filed in Canada, according to the Canadian Bar Association's National Class Actions Database. Quebec leads the way with 115 of those cases, followed by Ontario and British Columbia. "We're seeing a lot of litigation in the pharmaceutical area, and a lot more in the automotive area," notes Caroline Zayid, a class ac- tion defence lawyer at McCarthy Tétrault LLP in Toronto. As product liability class ac- tions grow, with it comes greater judicial scrutiny of cases at the certification stage and more fo- cus by defendants in resisting certification. "You're seeing the courts push back a little bit in product liability," says Eizenga. "There's a bit of a retrenchment and a movement away from automati- cally certifying product liability class actions." Michael Peerless, a plaintiff class actions lawyer at McKen- zie Lake Lawyers LLP in Lon- don, Ont., says the fight "is be- ing moved back to the motions court now." He says one of the emerging challenges is the ques- tion of commonality, especially with cases involving multiple products. Take last year's ruling in a certification motion by Ontario Superior Court Justice Paul Per- ell in O'Brien v. Bard Canada Inc., a case involving 19 pelvic mesh products manufactured by Bard to treat pelvic organ pro- lapse or stress urinary inconti- nence. Eizenga represented Bard and Peerless represented the plaintiff. While surgical mesh was a common component of each product and they were designed to treat two medical conditions, the products had different ma- terials, shape, size, weight, and design purposes, Perell noted. "As structured, the case at bar wants for the fundamental in- gredient of commonality. There is no common issue that spans this proposed class action for 19 medical devices, of which ten are for the treatment of POP and nine are for the treatment of SUI. The ten devices for the treatment of POP, are each different one from the other and the nine for the treatment of SUI are different one from the other," Perell wrote. "The fact that all the 19 prod- ucts include surgical mesh does not produce a commonality any more than the fact that all 19 products are medical devices sold by Bard." "In my opinion each of Bard's products and Bard's conduct in relation to each of its products requires individual assessment and there is no basis-in-fact for a common issue about general causation." Ontario Superior Court Jus- tice Edward Belobaba has also commented recently on com- monality in Dine v. Biomet, a hip replacement ruling from December 2015. "The most contentious is- sue in the certification of class actions, and especially product liability class actions, is com- monality. That is, whether the plaintiff can provide some evi- dence that the proposed com- mon issue exists in fact and can be answered in common across the entire class. Class counsel generally understands that only a minimal amount of evidence is needed to satisfy the com- monality requirement. Defence counsel generally does not and presents far too much merit- based evidence that has no place at certification and is better left for trial," he said. Eizenga says one of the fall- outs over the commonality fight is that it invites lawsuits based on smaller class sizes. If that's the case, he says, "it almost in- vites plaintiffs to bring forward another mechanism for dealing with cases on an individual ba- sis." That means Canada may see an increase in mass torts, where plaintiffs gather a collection of cases and bring one forward as the test. That would address Per- ell's concern in the Bard mesh case about it needing individual assessment. "I think that's what you're go- ing to see," Eizenga says. LT FOCUS REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT 8JUINPSFUIBOQBHFWJFXTBOEVOJRVF WJTJUPSTNPOUIMZDBOBEJBOMBXMJTUDPNDBQUVSFTZPVSNBSLFU FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at canadianlawlist.com with an annual Gold or Silver Enhanced listing package. ENCHANCE YOUR LISTING TODAY! Untitled-3 1 2016-04-13 10:15 AM Platinum Sponsor Silver Sponsor Bronze Sponsor Hosted in Partnership With Date: Sept. 8, 2016 Location: Arcadian Court, Toronto 6 p.m. Cocktail Reception 7 p.m. Gala Dinner and Awards Presentation Emcee: Gail J. Cohen, Editor in Chief, Canadian Lawyer/Law Times Dress: Business Attire Innovation. It's in our DN The Canadian Lawyer InHouse Innovatio Awards celebrate in-house counsel, both individuals and teams, who have found ways to show leadership by becoming more efficient, innovative and creative in meeting the needs of their organizations within the Canadian legal market. innovatio-awards.com Bronze Sponsor Presented by Untitled-1 1 2016-04-13 10:01 AM Michael Eizenga says it's busy times for the class action product liability bar. The most contentious issue in the certification of class actions, and especially product liability class actions, is commonality. Justice Edward Belobaba

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