A recent Alberta decision1 refusing to certify a proposed medical device class action illustrates that in some cases a class action is not preferable given the individual nature of the claims.
Overview of the case
The defendant manufactured a hip resurfacing system used by members of the proposed class as an alternative to a total hip replacement. The representative plaintiff underwent the procedure to implant this system and allegedly experienced problems, including cobalt poisoning, which led to the system's removal.
Class counsel said he had been retained by nine additional class members who had experienced similar problems with the resurfacing system. The representative plaintiff sought to certify a class action on behalf of all individuals in Canada who had had the defendant's hip resurfacing system implanted.
The court rejected certification based on the following reasons.
First, the court found no evidence of a second individual who suffered the same harm as the putative representative plaintiff. In the court's view, it was not sufficient that counsel had identified nine other individuals with similar problems without identifying any of the other putative class members or their evidence, or indeed any particulars at all beyond "similar problems." The court viewed this as a description "so brief and generic as to defeat any attempt to evaluate whether there is 'some basis in fact' to bare, conclusory allegations.2"
The court also rejected what little evidence it did have of other class members as being hearsay and "double hearsay," with the plaintiff describing claims that had been described to her counsel.3
Second, many of the common issues proposed by the plaintiff, such as the question of whether a duty of care existed, were not in dispute. Moreover, the plaintiff's proposed common issues did not speak to the real issue of whether the product should have been on the market at all.
Third, and most importantly, the court concluded that a class action was not preferable. The court found that, contrary to the requirements of section 5(2)(a) of the Alberta Class Proceedings Act, a class action in relation to these claims would be predominated by questions affecting individual class members.
Considering the many possible causes of the harm and the known and disclosed risks of the procedure, the court held that causation would be a significant issue for each individual class member. The court rejected the argument that defining the issue as whether the product should be on the market at all would result in the common issue taking precedence.
Even if that were the common issue, the court noted that the individual facts of each class member would still be important with respect to consideration of causation and damages. In addition, the court held it was unlikely a court could find the product should not have been on the market considering it was licensed both provincially and federally and had never been subject to a recall.
Ultimately, the court held it would not be in the interests of judicial economy to proceed with a class action where the common issues are of little import compared to the individual ones.
This case is significant given the court's preferability analysis and its consideration of the multitude of other potential causes of injury to the putative class members, all of which made individual considerations overwhelming compared to the proposed common issues. The decision underlines and accepts many of the arguments that defendants have been making for years in relation to the individual nature of inquiries for claims in this area.
The author wishes to thank Michael Sherman, articling student, for his help in preparing this legal update.
1 Warner v Smith & Nephew Inc.
2 See paragraph 45
3 See paragraph 46
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