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

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

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

An emerging trend is developing in Canadian medical device litigation, which appears to take its cues from the US Multidistrict Litigation (MDL) model for collecting individual claims. In this article, we describe the growing phenomenon of “mass-tort”-style claims in Canada, and explore what differentiates it from Canadian class functions.

American MDL Model

The MDL is a formal procedural tool used in the US federal court system to manage a large number of individual claims with similar charges against the same defendant. These individual cases, which may be in the hundreds, thousands and sometimes thousands, are consolidated into a single jurisdiction for pre-trial procedures such as search and preliminary motions. There may also be Belvedere tests (test cases). Cases that are not settled or dismissed are usually sent back to their respective districts for trial.

Resolving or settling an existing “mass tort” proceeding may not confer the same degree of finality as a class action settlement, leaving open the possibility of future claims.

There is no comparable MDL-style statutory framework in Canada. Instead, multiple plaintiffs wishing to pursue similar claims against the same defendant usually do so through class actions, which involve their own, separate procedures. Before trial, plaintiffs must have their action certified (or authorized in Quebec) as a class proceeding meeting applicable statutory requirements. This phase can take months or years to complete and can consume significant resources for all parties involved. Respondents often oppose certification on a variety of grounds, for example, by arguing that there is a lack of parity among claimants or that a class action is not a better process for advancing the proposed class of claims. In the context of product liability, it is typical for several proposed class actions to be initiated in respect of a particular product, creating potential disputes between plaintiff firms regarding “carriage”, a fight about which the firm’s class action may be initiated. should be allowed to continue. If certified, a class action proceeds through pre-trial stages of general action and, finally, a trial of common issues.

The rise of MDL-style proceedings in Canada

Despite the absence of a statutory framework, some Canadian litigants (or, more accurately, plaintiff firms) have begun to attempt to imitate elements of the MDL model in product liability claims, including against medical device manufacturers. . Instead of launching a class action, these firms initiate tens or hundreds of individual actions against a single defendant, often in different courts across Canada, making nearly identical allegations about a particular product or family of products, for example For,, breast implants or pelvic plexus. They are often brought up after the start of a parallel US lawsuit involving the same product(s), suggesting a degree of cross-border cooperation. Some plaintiff firms describe these claims as “mass tort” proceedings.

The exception to this trend is Quebec, which has not seen this phenomenon to date. This may be because it is generally considered more conducive to the authorization (certification) of class actions than common law provinces. Additionally, Quebec’s “first to file” rule avoids class action carriage fights between plaintiff firms and provides greater certainty to the first firm to seek authorization.

Basic Features of MDL-Style Proceedings

To date, most of these Canadian “mass torture” proceedings remain in their early stages, providing limited insight as to best practices or possible consequences in the absence of a framework to manage them. However, there are some basic characteristics that differentiate these functions from class functions.

  • Initial focus on properties. The early stages of MDL-style claims will focus more on properties. With a class action, the statutory elements for certification are set in place to determine whether procedurally, claims of the proposed class should be advanced through a class action. There is no evaluation of properties. With an “inventory” of individual works, there is no certification offer. Therefore, the parties should turn their attention to the merits and demerits of the plaintiff’s claims well in advance.
  • more preliminary work. “Gang torture” proceedings may involve more upfront work and expense than a class action. When dealing with individual tasks, each has its own arguments and will likely be subject to document production and discovery. In contrast, a class proceeding is a single action with a single set of pleadings, meaning that these pre-trial steps usually occur once.
  • more information. The parties will generally be more aware of the litigation landscape when dealing with many different actions. A collection of individual actions form a defined universe of claimants, along with their number and the potential value of their claims. In the early stages of a class action, it can often be difficult to ascertain the size and structure of the proposed class.
  • Less court supervision. Class action law generally provides for substantial court supervision over a class proceeding. The court determines whether the action must be substantiated, decides which plaintiff firm should have litigation (in the event of a carriage competition), and determines whether a proposed settlement should be approved. . With individual actions, there may be fewer opportunities for the court to manage the litigation as a whole. Each action is subject to the procedural rules of the province in which it is initiated, making it difficult to manage cases in different jurisdictions. Even for similar functions within the same province, different courts may have different practices and procedures, and achieving formal case management to facilitate procedural coordination is not always certain. There is generally no requirement for the court to approve the settlement of individual actions, which may result in confidential settlements, as is typical for individual claims.
  • Struggles with parallel class actions. The coexistence of a class action and multiple individual actions related to a particular product may create tension with the improved process criteria of class action certification testing, as individual actions are clearly the preferred procedural vehicle of some potential class members.
  • less last. Determination and/or disposal of a certified class action will ordinarily bind all members of the class, known or unknown. In contrast, resolving individual matters generally only binds the parties. As a result, resolving or settling an existing “mass tort” proceeding may not provide the same final degree of finality as a class action settlement, except for the possibility of future claims.

New approaches demand a constructive and flexible response

Claims of “mass torture” do not have a poor history of class actions or their procedural structure. In the absence of these guideposts, defense attorneys must continue to be constructive and flexible in their responses, formulating their strategies for the circumstances of the plaintiffs’ allegations and the objectives of their clients.

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