In 2014, an overall trend emerged towards closer judicial scrutiny of potential class action cases, particularly in the context of medical devices. Two decisions so far in 2015 have continued this trend by dismissing motions for certification of class actions. These decisions suggest that courts in both Alberta and Ontario will continue to carefully scrutinize medical device product liability cases and use such scrutiny as a gate keeping function to certification.

The Birmingham Hip Resurfacing System

In February, the Alberta Court of Queen’s Bench dismissed an application for certification of a class action after a Birmingham hip resurfacing system that was implanted in the plaintiff allegedly broke down, causing elevated levels of cobalt metal ions in her blood.

The evidence demonstrated that the Birmingham system had excellent results when used on the right patients in the right circumstances and that the system was very effective as long as the surgery was performed by a properly trained orthopaedic surgeon. Justice Poelman suggested that the claim for those suffering from side-effects from hip resurfacing systems ought to be against their individual physicians and surgeons, rather than the manufacturer.

In light of the individual assessments that would be required to determine if a patient was a proper case, the Court found that this was not an appropriate case to proceed on a class basis.

Pelvic Mesh Products

In April, the Ontario Superior Court of Justice dismissed a motion for certification of a class proceeding in which the plaintiff sued on behalf of all women in Canada who had undergone surgery for the implantation of pelvic mesh products branded by Bard Canada Inc.

The claim alleged that the proposed representative plaintiff experienced multiple side effects after pieces of the mesh in the Align Urethral Support System began to extrude, which required surgery. The claim against Bard alleged both negligent design and a failure to warn customers about the potential dangers of using the pelvic mesh products.

To obtain certification, the plaintiff had to have demonstrated that there was an issue common to each class member’s claim. In other words, success for one class member on the common issue must have meant success for all members. As the claim was related to 19 individual products, the plaintiff faced an uphill battle. Bard argued, and the Court agreed, that multiple product cases are often not suitable for class actions for two reasons: the absence of commonality, and the complexities of proving duty of care with changing manufacturing techniques, scientific developments and emerging knowledge about the products.

Because a product-by-product risk-benefit analysis would be required, the Court found that there was no commonality of causation that arose solely from the fact that the claim is about “mesh.” The claim was determined not to be appropriate for a class proceeding.

What’s Trending

Both cases emphasized the fact that, in the appropriate circumstances, the medical devices in question could be effective in treating certain health conditions. The take-away from this growing trend appears to suggest that where the medical devices and screening processes are unique and individual in nature, courts will not deem such actions to be proper cases for certification as class action proceedings.

The Birmingham Hip Resurfacing System case can be found here, and the Pelvic Mesh Products case can be found here.