Dr. Graves

The defendants sought leave to appeal an order granting certification of a class action regarding allegedly defective hip implants.

The defendants argued that the motion judge's approach to evidence on commonality conflicted with other decisions and that there was good reason to doubt the correctness of the certification order.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motion judge's application of the 'some basis in fact' standard for certification.

Following the successful certification of a class action concerning metal-on-metal hip implants, the plaintiff sought costs of $584,288 on a partial indemnity basis.

The court applied its established approach to certification costs, reducing the hourly rates to comply with the Rules Committee Grid.

The court further reduced the fees by 50 percent because class counsel spent an inordinate amount of time unnecessarily litigating the merits of the action.

Disbursements were also reduced, as an expensive expert report was deemed not essential for certification.

Ultimately, the court fixed costs at $200,000 payable forthwith and $65,000 in the cause.