October 28th, 2013
On August 27, 2013, Justice Belobaba certified a class action against DePuy Orthopaedics Inc., DePuy International Limited, DePuy Inc., and Johnson and Johnson Inc. (collectively “DePuy”) with respect to two “metal-on-metal” hip replacements systems (Crisante v DePuy Orthopaedics, 2013 ONSC 5186). The main allegation is in negligence for defective product design and failure to warn.
The metal-on-metal hip systems in issue were introduced into the market in 2006. Soon after the introduction of these hip systems, there were reports of higher than normal failure and revision rates. (The failure of a hip implant system can result in painful revision surgery to remove and replace the system.) In 2010, DePuy issued a voluntary recall of the hip systems. The class action is brought on behalf of all individuals resident in Canada, outside of BC and Quebec, who were implanted with one of the recalled hip systems. The proposed class definition was not limited to individuals who had experienced a failure of their hip system or who had undergone revision surgery.
In his reasons for granting certification, Justice Belobaba stated that the requirements that there be a valid cause of action, and that there be a representative plaintiff who can fairly and adequately represent the class, were easily met. He went on to certify three of the four proposed common issues.
Justice Belobaba noted that DePuy’s strongest argument against certification was based on preferability. This argument was intertwined with DePuy’s argument to limit the class definition to those individuals who had undergone revision surgery.
Under the class definition proposed by DePuy, only 30 to 40 individuals would be members of the class. Under the plaintiffs’ proposed class definition, at least four hundred individuals were included. Justice Belobaba rejected DePuy’s argument to limit the class definition to those individuals who had undergone revision surgery. The fact that class members were implanted with a since-recalled device reflected the claims pleaded, which included claims for emotional damages and monitoring. As such, it was sufficient to ground the class definition as proposed by the plaintiffs, and to do otherwise, would improperly introduce a merits analysis into the determination of class membership.
With respect to preferability, DePuy’s argument was that, once the class was limited to those individuals who had undergone revision surgery, it was preferable that these individuals advance claims individually through case management. Justice Belobaba noted that he had already held that the action was not limited to those who had undergone revision surgery. Further, he noted that it has been clearly stated by both the Superior Court and the Divisional Court that compensable harm may arise as soon as a defective device is implanted into a person’s body. As the action was brought on behalf of all implant patients, and included claims such as emotional distress, it was preferable that the action proceed as a class action.
Despite his rejection of the defendants’ arguments on class size, Justice Belobaba noted at the outset of his reasons, that “[i]t is not the job of the court to redraft the statement of claim or reshape the proposed class action to accommodate the defendants’ or even the judge’s notion of a more sensible or more efficient litigation”. Justice Belobaba’s comments may be taken by some to reflect a concern about the utility of class actions in the medical device product liability area to deal efficiently with individuals’ potential causes of action, particularly those who have suffered significant damages. However, as Justice Belobaba also noted, “[p]rovided the minimal statutory prerequisites are satisfied, the court is obliged to certify a proposed class action.”
The certification of a class action is but one step and must be viewed in the context of the overall framework and purpose of the legislation which includes the dicta that merits are not to be determined on certification and ensures that individuals are advised of their membership in a class action and permitted to opt-out.
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