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In the hope of achieving better results for their clients in product liability cases than a class action might provide, an innovative Toronto law firm, Will Davidson LLP, is resorting to “mass tort” litigation as an alternative.

Mass tort litigation, like class actions, arise when a defective product injures a large number of consumers. Because defects can cause a wide range of problems for claimants, the cases may be difficult to group into a single class that satisfies the “commonality” requirement for certification of class actions.

Mass tort lawsuits solve that problem by allowing cases to proceed individually. Claimants may have different lawyers, all of whom may share information, research and resources. In many cases, the results of the first few trials become the principles governing settlement of the remaining cases.

“For example, it’s almost impossible to get drug or medical device cases certified in the US, but that hasn’t meant that there’s no access to justice,” said Michael Eizenga of Bennett Jones LLP’s Toronto office. “While these cases may not normally be viable as one-off for law firms, they become so when plaintiff’s counsel and even trial lawyers’ organizations coordinate their actions and assemble a large number of cases.”

Encouraged by the results of the Vioxx litigation in the U.S., which proceeded by way of individual mass tort cases rather than a class action, Will Davidson LLP decided to take a similar approach for their 215 clients with claims arising from allegedly defective pelvic mesh devices.

In the U.S., the defendants in the Vioxx proceedings paid out US$4.85-billion to settle the claims of some 45,000 individuals after plaintiffs and defendants each won five of 10 cases tried individually. The settlements amounted to about US$100,000 for each claimant.

By comparison, the Canadian class action settlement garnered but $36.8-million, with just $5,000 maximums available to claimants who suffered non-fatal strokes and roughly $50,000 maximums available to those who suffered more serious problems.

So although at least three class actions had been also filed in the pelvic mesh litigation in Canada, Will Davidson – no doubt encouraged by the fact that, so far, plaintiffs have succeeded in four of five parallel pelvic mesh litigation trials in the U.S. – decided to proceed with the mass tort approach.

The firm reasoned that proceeding individually would allow it to maintain control of its cases rather than possibly having them subsumed in a larger class action of which the firm might not have carriage.

Still, the extent to which the “mass tort” approach will compete with product liability class actions or other types of class actions in Canada, remains to be seen.

One obstacle to the emergence of mass torts, for example, lies in the fact that the threshold for certification of class actions in Canada is considerably lower than it is in the U.S.

“Until we see Canadian courts repeatedly denying certification, I’m not sure that there will be much incentive for the mass tort approach in this country,” said Michael Brown in Norton Rose Fulbright Canada LLP’s Toronto office.

The U.S. federal court system, for example, has developed a multidistrict litigation (MDL) process that consolidates complex cases with similar issues so they are managed by one court, which handles all case management matters and aggregates discovery proceedings for the lawsuits. The goal of MDL is to conserve resources and foster consistent court rulings. Cases that do not settle or are not dismissed during MDL go back to their original jurisdictions for trial.

In Canada, there is no federal system that is jurisdictionally analogous to the one in the U.S. Here, most mass torts are the domain of provincial superior courts. And as the class action experience has shown, particularly with regard to national classes, melding a cohesive process among these courts can be a daunting challenge at times.

Nonetheless, many lawyers believe Canadian courts are up to that challenge.

“I see good reason for plaintiffs’ counsel to consider mass torts as a way of avoiding the court supervision and procedural requirements that go with class actions,” said Lawrence Thacker of Toronto’s Lenczner Slaght Royce Smith Griffin LLP. “While the lack of a formal coordinating mechanism does make the process more difficult, I believe that the courts and counsel will respond.”

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