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 medical devices.
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."
Footnote
1. 2015 ONSC 2470.
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