Despite the popular belief that all product liability cases are
appropriate for certification as class actions, the recent decision
of O'Brien v. Bard Canada Inc.1 proves
otherwise. The Ontario Superior Court of Justice dismissed a
certification motion on the basis that the plaintiff failed to
demonstrate the plurality of claims beyond her own experience. She
could not demonstrate that there was a common design defect amongst
the 19 products made by the manufacturer. They were all different
in materials, shape, size, weight, density, weave, porosity,
flexibility, configuration, fixation methodology, design purposes,
and product warnings.
The plaintiff, Ms. O'Brien, moved for certification of a
product liability class action against Bard Canada Inc. and its
subsidiaries (collectively "Bard") alleging that their
pelvic mesh products used to treat pelvic organ prolapse
("POP") or stress urinary inconti¬nence
("SUI") were dangerous. She claimed Bard negligently
designed the product and further failed to warn of the danger in
using its medical devices. Ms. O'Brien had suffered multiple
side effects following the surgery to implant one of Bard's
Bard offers a variety of products to treat POP and SUI –
Ms. O'Brien's proposed class included patients implanted
with any one of 19 different mesh products made by Bard. Although
all of these products use surgical mesh, each has distinct design
features as well as different design purposes. They are made of
different materials, and have different sizes, shapes, warnings,
etc. As explained by Bard, the products were designed to provide
different approaches to treat POP and SUI. Consequently, Bard's
expert evidence, provided by two different doctors, explained that
it was not scientifically reasonable to generically link adverse
outcomes from 19 different products. Moreover, their different
designs are clinically relevant because they are chosen for the
specific patient's circum¬stances.
Although the threshold for certification motions is low in that
it requires the moving party to adduce evidence that demonstrates
"some-basis-in-fact," Ms. O'Brien was unable to meet
it because she failed to show a common design defect among
Bard's 19 prod¬ucts. While she presented expert evidence
through a doctor who opined on the use of surgical mesh to treat
SUI and POP, his evi¬dence failed to establish any commonality
of design or use between Bard's 19 products.
This case illustrates that where manufacturers manufacture a
variety of products for use in similar situations, but can
demonstrate substantive distinctive traits between them, they have
a strong defence against certification of a class action. As stated
by the Court: "No type of class action is quintessentially
certifiable, even a products liability class action. Each class
action of whatever genre must be individually assessed."
1. 2015 ONSC 2470.
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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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