Certification was denied in a recent proposed multiple-model
product liability class action before the Ontario Superior Court of
Justice in O'Brien v Bard Canada Inc.
We acted for the defendants.
The case concerned over 15 different medical products intended
for permanent implantation in the female pelvis to treat various
types of pelvic organ prolapse and stress urinary incontinence. The
products differed in multiple ways, including their material
makeup, shape, size, weight, density, weave, porosity, flexibility,
configuration, fixation methodology, design purpose and product
warning. The plaintiffs alleged all of Bard's products were
negligently designed and that Bard failed to warn of their
Justice Perell set out the test applicable in negligent design
cases as follows:
Whether a manufacturer breaches its duty of care in designing a
product depends upon a risk-utility analysis that measures whether
the utility of the chosen design outweighs the foreseeable risks
associated with the chosen design. The risk-utility analysis
requires weighing any foreseeable risk against the foreseeable
utility of the product based on the information available to the
manufacturer at the time of distribution or implantation and
without the benefit of hindsight.
The case turned on Justice Perell's analysis of the
inadmissibility of the majority of the plaintiffs' evidence,
the lack of an identifiable common design feature across the
proposed class as well as the preferable procedure analysis.
Justice Perell held much of the plaintiffs' evidence to be
inadmissible, even in light of his acknowledgment that the some
basis in fact test sets a low evidentiary standard for
Interestingly, the plaintiffs' own expert, an experienced
surgeon in the field of pelvic medicine and reconstructive surgery,
acknowledged that there is a role for product-assisted pelvic
repair surgery. Justice Perell found that there were limits to the
use that could properly be made of his evidence. In certain
paragraphs of his affidavit, the plaintiffs' expert had relied
on allegations about Bard's products that he found on the
webpage of a plaintiff law firm in the US that is suing Bard, as
well as information in a Bloomberg news article. Justice Perell
gave this information no weight. He further found that since the
plaintiffs' expert did not review the documents where Bard
provided its warnings and did not attend Bard training sessions, he
did not have the factual basis to provide evidence as to whether
the warnings provided by Bard were adequate.
Regarding the proposed common issues, Justice Perell found that
Bard's products did not have a common design feature that could
be extrapolated across the class. He further found that each of
Bard's products have a different risk-benefit profile. Further
still, that the plaintiffs' expert witness and non-expert
witnesses did not provide admissible evidence to show a singular or
common design defect across Bard's products.
Justice Perell found that there was no basis in fact to support
the general causation issue proposed by the plaintiffs ("can
the defendants' pelvic mesh products cause or contribute to
injuries, conditions and complications) because the question
"wants for commonality." Justice Perell endorsed the
recent decision in Charlton v Abbott Laboratories Ltd.,
2015 BCCA 26, noting that where a plaintiff seeks to address
questions of causation on a class-wide basis as the foundation for
his or her class action, there must be some evidence of a
methodology that will enable the plaintiff to prove causation on a
Regarding preferable procedure, Justice Perell found that where
there is no basis in fact for common issues, there is no basis in
fact for a class action satisfying the preferable procedure
criterion. As a result, he found that a class action in this case
was not the preferable procedure.
Justice Perell refused to certify the class action, but left
open the option for the plaintiffs to bring an "alternatives
motion" on the basis of sections 5(4), 7, 12, 13, 17(3), (4)
and (5), 19, 29 and 35 of the Class Proceedings Act.
This decision is illustrative of the fact that not all product
liability cases are suitable for certification. The plaintiffs in
this case relied on the oft-cited reference in the caselaw that
product liability cases are "quintessential class
actions." Justice Perell disagreed. He said "no type of
class action is quintessentially certifiable, even a product
liability class action." Further, that in multiple-model
product liability class actions, the plaintiffs must put forward
enough evidence to show that there is a common design feature
across all product models or, at the very least, some methodology
that would enable the plaintiffs to prove causation on a class-wide
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The recent decision of the Ontario Court of Appeal in BMW Financial Services Canada, a Division of BMW Canada Inc. v. McLean provides some useful insight into the relationship between automobile dealers and the financing arms of the manufacturers for whom those dealers are franchisees.
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