On March 20, 2015, Justice Belobaba released his reasons in Dine v Biomet,
a motion concerning the production of medical records prior to a
The case is a proposed product liability class action concerning
several models of the defendants' metal-on-metal hip implants.
The plaintiff has alleged that the hip implants are defectively
manufactured, defectively designed and that the defendant has
failed to adequately warn of the dangers associated with its
Justice Belobaba found that to obtain an order for production of
medical records before certification and before the
cross-examination of a proposed representative plaintiff, such
records must be relevant to the issues on the certification motion
(i.e., sections 5(1)(a)-(e) of the Class Proceedings Act). Such relevance, coupled with the
court's inherent discretion to control discovery and under s.
12 of the Class Proceedings Act, provides the court with all it needs to
ensure both relevance and fairness when determining whether the
requested production should be ordered.
In this particular case, the defendants' motion was
dismissed as too broad and not justified, but without prejudice to
their right to pursue the records again on cross-examination and,
if they are refused, to bring a refusals motion.
Significantly, however, Justice Belobaba did order production of
additional medical documents focused solely on identifying or
describing the products that were implanted in the plaintiff. He
found such documents to be relevant and necessary for the section
5(1)(e) analysis of the adequacy of the representative
Justice Belobaba distinguished this case from the finding in Roveredo v Bard
Canada Inc, in which Strathy J. found that the production of
additional medical records was relevant to the preferable procedure
analysis because they would assist the court in determining whether
a class action was preferable to individual actions.
Thus, it will be crucial going forward for defendants requesting
medical records pre-certification to identify how the records will
assist the court in making a determination on each of the section
5(1) criteria during the certification motion. If the defendants
cannot do so, they are unlikely to receive production.
In the context of multiple model product liability class
actions, it may be helpful for defendants to identify how the
particular medical circumstances of the proposed representative
plaintiff may (or may not) be capable of extrapolation across the
class. In such cases, medical records would be required for an
appropriate analysis. Whether a finding of commonality can be made
across the class goes not only to the common issues analysis, but
also to whether a class action is the preferable procedure, and is
part of the assessment in proposed product liability class
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).