Medical device litigation in Canada: proliferation of an American style “mass tort” model - Lexology

An emerging inclination is processing successful Canadian aesculapian instrumentality litigation, which appears to beryllium takings its cues from the U.S. multidistrict litigation (MDL) exemplary for aggregating idiosyncratic claims. In this article, we picture the rising improvement of “mass-tort”-style claims successful Canada, and research what differentiates it from Canadian people actions.

The American MDL model

MDL is simply a ceremonial procedural instrumentality utilized successful the U.S. national tribunal strategy to negociate ample numbers of idiosyncratic claims involving akin allegations against the aforesaid defendants. These idiosyncratic cases, which tin fig successful the hundreds, thousands, and sometimes tens of thousands, are consolidated into a azygous jurisdiction for pre-trial procedures specified arsenic find and preliminary motions. Bellwether trials (test cases) whitethorn besides occur. Cases that are not settled oregon dismissed are typically sent backmost to their respective districts for trial.

Resolving oregon settling existing “mass tort” proceedings whitethorn not supply the aforesaid grade of finality arsenic a people enactment settlement, leaving unfastened the anticipation of aboriginal claims.

Canada has nary comparable MDL-style statutory framework. Instead, aggregate plaintiffs wishing to beforehand akin claims against the aforesaid defendants typically bash truthful via people actions, which impact their own, chiseled procedures. Before trial, plaintiffs indispensable person their enactment certified (or authorized successful Québec) arsenic a people proceeding by satisfying the applicable statutory requirements. This signifier whitethorn instrumentality months oregon years to implicit and tin devour important resources for each parties. Defendants often reason certification connected a assortment of bases, for example, by arguing that determination is simply a deficiency of commonality amongst claimants oregon that a people enactment is not the preferable process for advancing the claims of the projected class. In the merchandise liability context, it is emblematic for aggregate projected people actions to beryllium initiated successful respect of a peculiar product, creating imaginable disputes amongst plaintiff firms astir “carriage”, a combat regarding which firm’s people enactment should beryllium allowed to continue. If certified, a people enactment past proceeds done the pre-trial steps of a mean enactment and, eventually, a proceedings of the communal issues.

The emergence of MDL-style proceedings successful Canada

Despite the lack of a statutory framework, immoderate Canadian plaintiffs (or, much precisely, plaintiff firms) person begun to effort to mimic elements of the MDL exemplary successful merchandise liability claims, including against aesculapian instrumentality manufacturers. Rather than commencing a people action, these firms commence tens oregon adjacent hundreds of idiosyncratic actions against the aforesaid defendants, often successful assorted courts crossed Canada, raising virtually identical allegations astir a peculiar merchandise oregon household of products, e.g., bosom implants oregon pelvic mesh. They are often brought pursuing the commencement of parallel U.S. litigation involving the aforesaid product(s), suggesting a grade of cross-border cooperation. Some plaintiff firms picture these claims arsenic “mass tort” proceedings.

The objection to this inclination is Québec, which to day has not seen this phenomenon. This whitethorn beryllium due to the fact that it is mostly regarded arsenic much affable to the authorization (certification) of people actions than the communal instrumentality provinces. Additionally, Québec’s “first to file” regularisation avoids people enactment carriage fights among plaintiff firms and provides greater certainty to the archetypal steadfast to question authorization.

Basic features of MDL-style proceedings

To date, astir of these Canadian “mass tort” proceedings stay successful their preliminary stages, offering constricted penetration arsenic to champion practices oregon apt results successful the lack of a model to negociate them. However, determination are definite basal features that differentiate these proceedings from people actions.

• Early attraction to the merits. The archetypal stages of MDL-style claims volition absorption much connected the merits. With a people action, the statutory elements for certification are geared toward determining whether, procedurally, the claims of the projected people should beryllium precocious by mode of a people proceeding. There is nary valuation of the merits. With an “inventory” of idiosyncratic actions, determination is nary certification motion. Parties indispensable truthful crook their attraction to the merits of the plaintiffs’ claims overmuch earlier.
• More archetypal work. “Mass tort” proceedings whitethorn impact much upfront enactment and disbursal than a people action. When dealing with idiosyncratic actions, each has its ain pleadings and volition perchance beryllium taxable to papers accumulation and discovery. In contrast, a people proceeding is simply a azygous enactment with a azygous acceptable of pleadings, which means that these pre-trial steps typically hap once.
• Greater information. Parties volition mostly person much accusation astir the litigation scenery earlier erstwhile dealing with aggregate idiosyncratic actions. A postulation of idiosyncratic actions creates a defined beingness of claimants, with their fig and the imaginable worth of their claims known. In the archetypal stages of a people action, the size and creation of the projected people tin often beryllium hard to ascertain.
• Less tribunal supervision. Class enactment authorities typically provides for important tribunal supervision implicit a people proceeding. The tribunal determines whether the enactment should beryllium certified, decides which plaintiff steadfast should person carriage of the litigation (in the lawsuit of a carriage contest), and determines whether immoderate projected colony should beryllium approved. With idiosyncratic actions, determination whitethorn beryllium less opportunities for the tribunal to negociate the litigation arsenic a whole. Each enactment is taxable to the procedural rules of the state successful which it is commenced, making it hard to negociate cases crossed antithetic jurisdictions. Even for akin actions wrong the aforesaid province, antithetic courts whitethorn person antithetic practices and procedures, and obtaining ceremonial lawsuit absorption to facilitate procedural coordination is not ever a certainty. There is besides mostly nary request for the tribunal to o.k. the colony of idiosyncratic actions, which tin effect successful confidential settlements, arsenic is emblematic for idiosyncratic claims.
• Conflict with parallel people actions. The co-existence of a people enactment and galore idiosyncratic actions relating to a peculiar merchandise whitethorn make hostility with the preferable process criterion of the people enactment certification test, since idiosyncratic actions are intelligibly the preferred procedural conveyance of immoderate imaginable people members.
• Less finality. The determination and/or colony of a certified people enactment volition typically hindrance each members of the class, known oregon unknown. In contrast, resolving idiosyncratic cases typically binds lone the parties. As a result, resolving oregon settling existing “mass tort” proceedings whitethorn not supply the aforesaid grade of finality arsenic a people enactment settlement, leaving unfastened the anticipation of aboriginal claims.

New approaches request a originative and flexible response

“Mass tort” claims bash not person the well-worn past of people actions oregon their procedural framework. In the lack of these guideposts, defence counsel indispensable tailor their strategies to the circumstances of the plaintiffs’ allegations and their clients’ objectives, continuing to beryllium originative and flexible successful their responses.