At the end of 2015, the certification decision came out in Vester v. Boston Scientific Ltd.1 Those of us in the products field were keeping an eye on this decision, as it was bound to test the outer limits of what could qualify as a “common issue” for the purposes of the Class Proceedings Act.

Those limits are critical. The definition of the common issues tends to be the most fertile ground for debate and negotiation in a class action. It is not an exaggeration to say that the breadth of the common issues dictates the length and complexity of a common issues trial. Determining whether Product “A” should have been coated with Substance “B” is a much more streamlined case at every stage than a broad claim that the defendants’ A-class products are defective.

Background to the Case

Vester concerned nine medical devices designed to treat stress urinary incontinence and pelvic organ prolapse, and each was alleged to have caused various specified “injuries, conditions and complications.”2 The plaintiffs did not, however, specify the alleged cause of those injuries. Rather, they pleaded broadly that the devices were “dangerous, defective, unfit and unsafe for use.”3

The devices had common features, in that they were used in the treatment of similar conditions and each employed a certain polypropylene mesh as a predominant component. The devices differed, however, in dimensions, function, features, configurations, method of fixation, and routes of application. The mesh used for one condition featured a different fiber diameter and pore size than the mesh used for the other. Each device also had different directions for use.

Back to the Drawing Board: Court Cannot Assume Issues Will Be Common to Class

Justice Perell declined to certify the class. His Honour found that although the devices all had similar features and were alleged to have caused similar injuries, the Court could not conclude that a single class proceeding was the preferable procedure because the plaintiffs did not specify the alleged cause of those injuries. A nuanced ruling in respect of a certain design flaw in one product might have nothing to do with an alleged manufacturing defect in another.

Although His Honour declined to certify the class, the action was not dismissed and certification was not rejected outright. The Court adjourned the certification hearing to permit the plaintiffs to return to court with enough evidence to establish that there is some basis in fact for the belief that all nine products had the alleged issues in common, and to revise their litigation plan accordingly.

Key Take-Away Principle

This decision reinforces two key points in product liability class actions. First, it reinforces that the “some basis in fact” test has ‘teeth,’ and is being applied to ensure that there is in fact reason to believe that the alleged issues are genuinely common, and not just allegedly or admittedly common, to the entire class. (Otherwise, the Court ruled, the common issues trial would become an “unproductive shambles.”)4 Justice Perell’s approach to this issue is interesting when compared with the approach taken by Justice Belobaba in the recent Biometcertification decision (summarized in this newsletter below), which emphasized the relatively low bar to certification.

And second, even when all common issues are rejected, the Court continues to show its general preference to allow unsuccessful class counsel to go “back to the drawing board” to amend pleadings or - as in this case - to lead further evidence until it is clear whether the action can, or cannot, proceed to an effective common issues trial.2015 ONSC 7950, decision issued December 17, 2015.

Read the full decision here.