Elizabeth deBoer

The plaintiffs in a certified class action regarding transvaginal mesh devices brought a motion to approve the Notice of a Settlement Approval Hearing, the Notice Plan, and minor amendments to the 2017 Certification Order.

The parties had entered into a $21.5 million settlement.

The defendants consented to the motion.

The court approved the expansion of the class definition to include individuals implanted with the devices up to the date of the order, finding it fair and necessary.

The court also approved the proposed notices and notice plan, finding they met the statutory criteria under the Class Proceedings Act, 1992.

Following the successful certification of a class action regarding transvaginal mesh devices, the plaintiffs sought costs of $900,000 on a partial indemnity basis.

The certification motion was heard in two phases, with the first phase adjourned to allow the plaintiffs to gather additional evidence.

The court found that the plaintiffs were the successful party and entitled to costs.

However, recognizing that the defendants should not have to pay for the plaintiffs' 'education' from the first phase unless the defendants are ultimately found culpable, the court awarded $425,000 payable forthwith (accounting for a $25,000 deduction for an abandoned motion) and $450,000 payable in any event of the cause.

This decision concerns a resumed certification motion for a proposed class action against Boston Scientific Ltd. and Boston Scientific Corporation regarding transvaginal mesh medical devices.

The plaintiffs, Susan and Darin Vester, alleged negligent design and failure to warn.

Following an initial adjournment due to a lack of common issues, new expert evidence was presented demonstrating a "some-basis-in-fact" for common issues related to the degradation of the polypropylene mesh (HGX-030-01) and the inadequacy of warnings in the Directions For Use (DFU).

The court found that the new evidence sufficiently identified a discrete defect common to all devices and a plausible medical theory of harm, satisfying the common issues and preferable procedure criteria.

The motion to certify the class action was granted.

The plaintiffs sought certification of a proposed national class action alleging negligent design and failure to warn in relation to transvaginal mesh medical devices used to treat stress urinary incontinence and pelvic organ prolapse.

The court held that the pleadings disclosed viable causes of action and that the proposed class definition satisfied the identifiable class requirement under the Class Proceedings Act, 1992.

However, the plaintiffs failed to establish some-basis-in-fact for common issues, particularly because no specific design defect in the polypropylene mesh or common inadequacy in the warnings across nine different products was identified.

The evidence demonstrated significant variation among the devices, their uses, and potential complications, undermining commonality.

The certification motion was therefore adjourned under s. 5(4) of the Act to allow the plaintiffs an opportunity to amend their materials and provide further evidence supporting common issues.