Medical Device Litigation in Canada: Proliferation of a US Model of “Mass Tort” – Trials, Appeals and Compensation

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An emerging trend is developing in medical device litigation in Canada that appears to be inspired by the US model of multidistrict litigation (MDL) to consolidate individual claims. In this article, we describe the growing phenomenon of mass-tort claims in Canada and explore what differentiates it from Canadian class actions.

The American MDL model

MDL is a formal procedural tool used in the US federal court system to manage a large number of individual claims involving similar allegations against the same defendants. These individual cases, which can number in the hundreds, thousands and sometimes tens of thousands, are consolidated into one jurisdiction for pre-trial proceedings such as discovery and preliminary motions. Bellwether trials (test cases) can also take place. Cases that are not settled or dismissed are usually returned to their respective districts for trial.

Canada does not have a comparable MDL-style legislative framework. Instead, multiple plaintiffs wishing to bring similar claims against the same defendants typically do so through class action lawsuits, which involve their own separate proceedings. Prior to trial, plaintiffs must have their action certified (or authorized in Quebec) as a class action by satisfying applicable legal requirements. This step can take months or years and consume significant resources for all parties. Defendants often oppose certification on a variety of bases, for example, arguing that there is a lack of commonality between the plaintiffs or that a class action is not the preferable procedure to advance the claims of the proposed group. In the context of product liability, it is typical for multiple proposed class action lawsuits to be initiated with respect to a particular product, creating potential disputes between plaintiff companies over “transportation”, a fight over the industrial action that should be allowed to continue. If certified, a class action then goes through the pre-trial stages of a normal action and, eventually, a common issues trial.

The rise of MDL-like procedures in Canada

Despite the lack of a legislative framework, some Canadian plaintiffs (or, more accurately, corporate plaintiffs) have begun to attempt to emulate elements of the MDL model in product liability claims, including against manufacturers of medical devices. Rather than filing a class action lawsuit, these companies are filing dozens or even hundreds of individual lawsuits against the same defendants, often in various courts across Canada, raising virtually identical claims about a product or a particular family of products, for example, breast implants or a pelvic mesh. They are often introduced after parallel US litigation has begun involving the same product(s), suggesting some degree of cross-border cooperation. Some corporate plaintiffs describe these claims as “mass tort” proceedings.

The exception to this trend is Quebec which, to date, has not experienced this phenomenon. This may be because it is generally considered more favorable to the authorization (certification) of class actions than the common law provinces. Additionally, Quebec’s “first-to-file” rule avoids class action cart battles between plaintiff companies and provides greater certainty for the first company to seek clearance.

Basic characteristics of MDL-like procedures

To date, most of these Canadian “mass tort” cases are still in the preliminary stages, offering limited insight into best practices or likely outcomes in the absence of a framework to manage them. However, certain fundamental characteristics differentiate these procedures from class actions.

  • Early attention to merits. The early stages of MDL-type claims will focus more on substance. In the case of a class action, the statutory elements of certification are intended to determine whether, procedurally, the claims of the proposed class should proceed through a class action. There is no assessment of merits. With an “inventory” of individual actions, there is no request for certification. The parties must therefore turn their attention to the merits of the plaintiffs’ claims much earlier.

  • More initial work. “Mass tort” proceedings may involve more up-front work and expense than a class action. When it comes to individual actions, each has its own pleadings and will potentially be subject to document production and discovery. In contrast, a class action is a single action with a single set of pleadings, which means that these pre-trial steps usually occur once.

  • More information. Parties will generally have more information about the litigation landscape sooner when dealing with multiple individual actions. A set of individual actions creates a defined universe of requesters, whose number and potential value of their requests are known. In the early stages of a class action, the size and composition of the proposed class can often be difficult to determine.

  • Less judicial oversight. Class action law generally provides significant judicial oversight over a class action. The court determines whether the action should be certified, decides which plaintiff company should take over the litigation (if the carriage is disputed), and determines whether any proposed settlement should be approved. With individual actions, there may be fewer opportunities for the court to manage the dispute as a whole. Each action is subject to the rules of procedure of the province in which it is brought, which makes it difficult to manage cases between different jurisdictions. Even for similar actions in the same province, different courts may have different practices and procedures, and obtaining formal case management to facilitate the coordination of proceedings is not always a certainty. In addition, the court is generally not required to approve the settlement of individual actions, which may result in confidential settlements, as is generally the case with individual claims.

  • Conflict with Parallel Class Actions. The coexistence of a class action and numerous individual actions relating to a particular product may create tension with the preferable procedural criterion of the class action certification test, since individual actions are clearly the preferred procedural vehicle of certain potential members of the band.

  • Less purpose. The determination and/or settlement of a certified class action will generally be binding on all class members, known or unknown. In contrast, the resolution of individual cases generally only binds the parties. Therefore, the resolution or settlement of an existing “mass tort” proceeding may not offer the same degree of finality as a class action settlement, leaving open the possibility of future claims.

To learn about the next steps for the transforming life sciences sector, visit our industry-focused series.

New approaches require a creative and flexible response

“Mass tort” claims do not have the well-worn history of class actions or their procedural framework. In the absence of these benchmarks, defense attorneys must adapt their strategies to the circumstances of the plaintiffs’ allegations and the objectives of their clients, continuing to be creative and flexible in their responses.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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