Q4 | Torys QuarterlyFall 2022

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

An emerging trend is developing in Canadian medical device litigation, which appears to be takings its cues from the U.S. multidistrict litigation (MDL) model for aggregating individual claims. In this article, we describe the rising phenomenon of “mass-tort”-style claims in Canada, and explore what differentiates it from Canadian class actions.

The American MDL model

MDL is a formal procedural tool used in the U.S. federal court system to manage large numbers of individual claims involving similar allegations against the same defendants. These individual cases, which can number in the hundreds, thousands, and sometimes tens of thousands, are consolidated into a single jurisdiction for pre-trial procedures such as discovery and preliminary motions. Bellwether trials (test cases) may also occur. Cases that are not settled or dismissed are typically sent back to their respective districts for trial.

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

Canada has no comparable MDL-style statutory framework. Instead, multiple plaintiffs wishing to advance similar claims against the same defendants typically do so via class actions, which involve their own, distinct procedures. Before trial, plaintiffs must have their action certified (or authorized in Québec) as a class proceeding by satisfying the applicable statutory requirements. This stage may take months or years to complete and can consume significant resources for all parties. Defendants often oppose certification on a variety of bases, for example, by arguing that there is a lack of commonality amongst claimants or that a class action is not the preferable procedure for advancing the claims of the proposed class. In the product liability context, it is typical for multiple proposed class actions to be initiated in respect of a particular product, creating potential disputes amongst plaintiff firms about “carriage”, a fight regarding which firm’s class action should be allowed to continue. If certified, a class action then proceeds through the pre-trial steps of a normal action and, eventually, a trial of the common issues.

The rise of MDL-style proceedings in Canada

Despite the absence of a statutory framework, some Canadian plaintiffs (or, more precisely, plaintiff firms) have begun to attempt to mimic elements of the MDL model in product liability claims, including against medical device manufacturers. Rather than commencing a class action, these firms commence tens or even hundreds of individual actions against the same defendants, often in various courts across Canada, raising virtually identical allegations about a particular product or family of products, e.g., breast implants or pelvic mesh. They are often brought following the commencement of parallel U.S. litigation 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 Québec, which to date has not seen this phenomenon. This may be because it is generally regarded as more friendly to the authorization (certification) of class actions than the common law provinces. Additionally, Québec’s “first to file” rule avoids class action carriage fights among 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 tort” proceedings remain in their preliminary stages, offering limited insight as to best practices or likely results in the absence of a framework to manage them. However, there are certain basic features that differentiate these proceedings from class actions.

  • Early attention to the merits. The initial stages of MDL-style claims will focus more on the merits. With a class action, the statutory elements for certification are geared toward determining whether, procedurally, the claims of the proposed class should be advanced by way of a class proceeding. There is no evaluation of the merits. With an “inventory” of individual actions, there is no certification motion. Parties must therefore turn their attention to the merits of the plaintiffs’ claims much earlier.
  • More initial work. “Mass tort” proceedings may involve more upfront work and expense than a class action. When dealing with individual actions, each has its own pleadings and will potentially be subject to document production and discovery. In contrast, a class proceeding is a single action with a single set of pleadings, which means that these pre-trial steps typically happen once.
  • Greater information. Parties will generally have more information about the litigation landscape earlier when dealing with multiple individual actions. A collection of individual actions creates a defined universe of claimants, with their number and the potential value of their claims known. In the initial stages of a class action, the size and composition of the proposed class can often be difficult to ascertain.
  • Less court supervision. Class action legislation typically provides for substantial court supervision over a class proceeding. The court determines whether the action should be certified, decides which plaintiff firm should have carriage of the litigation (in the event of a carriage contest), and determines whether any 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 commenced, making it difficult to manage cases across different jurisdictions. Even for similar actions within the same province, different courts may have different practices and procedures, and obtaining formal case management to facilitate procedural coordination is not always a certainty. There is also generally no requirement for the court to approve the settlement of individual actions, which can result in confidential settlements, as is typical for individual claims.
  • Conflict with parallel class actions. The co-existence of a class action and numerous individual actions relating to a particular product may create tension with the preferable procedure criterion of the class action certification test, since individual actions are clearly the preferred procedural vehicle of some potential class members.
  • Less finality. The determination and/or settlement of a certified class action will typically bind all members of the class, known or unknown. In contrast, resolving individual cases typically binds only the parties. As a result, resolving or settling existing “mass tort” proceedings may not provide the same degree of finality as a class action settlement, leaving open the possibility of future claims.

To see what’s next for the rapidly transforming life sciences sector, visit our industry-focused series.

New approaches demand a creative and flexible response

“Mass tort” claims do not have the well-worn history of class actions or their procedural framework. In the absence of these guideposts, defence counsel must tailor their strategies to the circumstances of the plaintiffs’ allegations and their clients’ objectives, continuing to be creative and flexible in their responses.

To discuss these issues, please contact the author(s).

This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.

For permission to republish this or any other publication, contact Janelle Weed.

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