The law regarding waiver of tort in many areas is still unsettled, says Andrew Bernstein in Financial Post

Tort Ruling Causes Stir

June 16, 2010

Lawyers say that the number of product liability class actions launched against medical device manufacturers are on the rise in Canada.

The growth has been fuelled by one particular case that has both lawyers and the medical device industry watching with interest, after a judge added his own twist in a decision to certify a lawsuit as a class action.

The case, Serhan Estate v. Johnson and Johnson, involves SureStep blood glucose monitoring devices manufactured by LifeScan Inc. In 2004, Ontario Superior Court Justice Maurice Cullity determined that he would certify the case as a class action based on the doctrine of waiver of tort, even though the plaintiffs in the case had not raised it in their claim.

Andrew Bernstein acknowledges that the law regarding waiver of tort in many areas, including medical devices, is "still extremely unsettled," but it has made certification of class actions easier: "Waiver of tort helps plaintiffs answer the defence argument that the case should not be certified because causation and damages are individual issues. The defence bar is now in the process of reacting to waiver of tort."

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