Crisante et al. v. DePuy Orthopaedics Inc. et al., 2013 ONSC 6351

COURT FILE AND PARTIES

COURT FILE NO.: CV-415755-CP
DATE: 20131108

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Joseph Charles Crisante, Katherine Crisante, Lynne Slotek and Larry Slotek / Plaintiffs / Moving Parties

AND:

DePuy Orthopaedics Inc., DePuy International Limited, DePuy Inc. and Johnson & Johnson Inc. / Defendants / Responding Parties

Proceeding under the Class Proceedings Act, 1992

BEFORE: Justice Edward Belobaba

COUNSEL:
Won Kim, Harvin Pitch, Daniel Reznick and Megan McPhee for the Plaintiffs / Moving Parties

Gordon McKee and Robin Linley for the Defendants / Responding Parties

HEARD: June 18 and July 9, 2013

costs award

Justice Edward Belobaba

Introduction

1Over the past several months, I have released five decisions certifying proceedings as class actions that now require costs awards.¹ Normally, costs awards are routine and can be easily adjudicated. Not so in the world of certification motions. Here, excess appears to be the norm in every aspect of the proceeding – in the time spent by legal counsel, the volume of material filed with the court, the number of days scheduled for the oral hearing and the over-litigation of most issues. No wonder, then, that the costs that are typically sought by the successful party are in the hundreds of thousands of dollars. No wonder, also, that the number of class actions on an annual basis is declining. Access to justice, even in the very area that was specifically designed to achieve this goal, is becoming too expensive.

2Most members of the class action bar, whether acting for plaintiffs or defendants, agree that a “no costs” rule would be much more sensible. Like them, I also wish that the recommendations on costs as set out in the Ontario Law Reform Commission’s Report on Class Actions² had been accepted. Instead, the provincial legislature decided to adopt the views of the Attorney-General’s Advisory Committee³ and continue the “costs follow the event” convention for the very different world of class actions as well. I was a member of that Advisory Committee. I now realize that I was wrong and that the OLRC was right. I understand that the provincial Law Commission is undertaking a review of the Class Proceedings Act,⁴ including the costs provisions. Hopefully, our mistake will be corrected.

3In the meantime, costs will continue to be awarded to the successful party on a certification motion and judges will continue to explain or try to explain their decision. Given the large costs claims and the subjectivity of the required analysis – recall the Rule 57.01(1) factors and the admonition of the Court of Appeal that costs awards should reflect what would be fair and reasonable to the losing party –many of the cost award decisions, although wordy, use unreliable metrics and are analytically unclear. In my view, more transparency is needed.

4For my part, I want to make clear how I will approach and determine costs awards in certification motions, now and in the future. I will, of course, continue to consider and apply the factors set out in Rule 57.01(1) and the various (and obviously binding) directions of the Court of Appeal. But the Rule 57.01(1) factors and the Court of Appeal directions can only take you so far. Consider, for example, the directions of the Court of Appeal that were provided in Pearson v Inco.⁵ I have taken the liberty of juxtaposing these directions with my commentary that is added in italics.

(i) A motion for certification is a vital step in the proceeding and the parties expect to devote substantial resources to prosecuting and defending the motion.

I understand this direction. Class actions often involve claims in the many millions of dollars and will therefore be rigorously prosecuted and defended. It follows from this that the costs awards (even on a partial indemnity basis) will be substantial.

(ii) The costs must reflect what is fair and reasonable; and the costs expectations of the parties can be determined by the amount of costs that an unsuccessful party could reasonably expect to pay.

I understand this as well. My difficulty on certification motions, where the amounts being sought by the successful party are so large, is deciding what the unsuccessful party should reasonably expect to pay. It would be of some assistance to know what losing parties have been required to pay on average over the last five or ten years. It would also be of some assistance to know the average percentage that these awards reflect, expressed as the amount awarded divided by the amount sought. In this way, I would be better able to decide what the unsuccessful party could reasonably expect to pay.

(iii) The costs should, if possible, reflect costs awards made in closely comparable cases, recognizing that comparisons will rarely provide firm guidance.

Here again, a sensible direction, at least on its face. The difficulty stems from the fact that the metrics involved in assessing “closely comparable cases” are not always reliable. For example, in comparing costs awards, some judges assume that a certification motion that required three or four days of hearing must have been more complicated and necessarily justified a higher costs award than one that was completed in just one or two days. The reality, however, is that a growing number of judges (myself included) spend many hours in advance of the scheduled hearing date, carefully reviewing the material and the (lengthy) written submissions and therefore require only a day or two in court. Same complicated motion: very different use of court time. Thus, the “days in court” metric can be completely unreliable. Add to this, the Court of Appeal’s caution (above) that comparisons with closely comparable cases “will rarely provide firm guidance” and the third direction loses much of its value. In my view, there would be more value in knowing the average costs awards and average percentages awarded. This kind of information, as I have already noted, would be of assistance in helping me decide what amount the losing party should reasonably be expected to pay.

(iv) A fundamental object of the Class Proceedings Act is to provide enhanced access to justice.⁶

This direction contains a very important reminder. If class actions are to survive and provide enhanced access to justice, the costs awards on certification motions should not work to undermine this fundamental objective. They should not price the class proceeding out of existence. That is why it is important, in addition to the s. 57.01(1) factors, to consider the costs awards made to date and the proportionality between amounts sought and amounts awarded. This historical information would provide some measure of predictability (and constraint) and thus help ensure the continued viability of class proceedings.

5In an effort to further the ‘access to justice’ objective and make my own decision-making process more transparent and predictable, I will adopt the following procedure in deciding costs awards in conventional certification motions – that is, in certification motions that do not fall within s. 31 of the CPA (i.e. test cases, novel points of law or matters of public interest):

• I will generally be content with costs outlines certified by counsel. I will not require either side to submit actual dockets. If they wish to do so, that is up to them.

• I will (briefly) review the certified costs outlines to ensure that the hourly rates being charged by counsel fall within the range set out by the Rules Committee in its Information to the Profession.

• I will also review the costs outline for any obvious excesses in fees or disbursements.⁷ Apart from any obvious excesses, I will accept the costs outline as is. I will not drill down into any of the detail.

• If the unsuccessful party wants to argue unreasonableness (beyond hourly-rate compliance or obvious excesses) it should submit its own certified costs outline showing what it actually spent (on a partial indemnity scale) on the certification motion. If a parallel costs outline is not submitted by the unsuccessful party (and none is required) I will probably conclude that the amount being requested by the successful party is not unreasonable.

• I will consider seriously historical costs awards in similar cases. Such comparisons can never be determinative but, as I have already noted, they provide useful guideline as to what amounts or percentages have been awarded in the past. As it happens, I have reviewed the costs awards in certification motions over the last six years⁸ and I will make use of the following information:

Costs Awards Over the Last Six Years

I. Where the costs sought were under $500,000

Average Award
(including fees and disbursements)

Percentage
amount awarded / amount sought

For Plaintiff

$169,250

63%

For Defendant

$148,870

50%

Overall

$163,000

59%

II. Where the costs sought were over $500,000

Average Award
(including fees and disbursements)

Percentage
amount awarded / amount sought

For Plaintiff

$496,118

62%

For Defendant

$341,000

39%

Overall

$388,728

46%

• For example, where the costs sought were less than $500,000, the average all-inclusive award for the successful defendant was $148,870; and where the costs sought were more than $500,000 it was $341,000. Would this information be of some assistance in deciding what the losing defendant should reasonably be expected to pay? I think it would be.

• As I conclude my costs review, I will stand back and reassess the amount that is before me (after the reductions or removals of any excesses.) I will again review the factors set out in Rule 57.01(1), the admonitions of the Court of Appeal, and the historical costs awards data as set out above, and come to a final amount that, in my view, is fair and reasonable to both sides, always remembering that the fundamental objective of the Class Proceedings Act is access to justice.

• In cases where the final fees or disbursement amount is dramatically above the norm, I will consider making a costs award in two parts: a portion that is payable immediately and a further portion that is payable in the cause.⁹

6I don’t know how this approach will play out. It will likely result in lower than expected costs awards. But if it also results in leaner and more focused certification motions, a greater measure of predictability for the participants, and in the overall, the continuing viability of the class action vehicle, that is all to the good.

7I now turn to the costs award herein.

Analysis

8The defendant, Depuy Orthopaedics, voluntarily recalled its metal-on-metal hip implants after noticing an elevated rate of revision surgeries. The plaintiffs, alleging negligent design and failure to warn, commenced a proposed class proceeding on behalf of the hundreds of persons (outside Quebec and British Columbia) who were surgically implanted with the (recalled) DePuy hip system. In a decision released on August 27, 2013, I certified this proceeding as a class action.¹⁰

9The certification motion rested on a strong evidentiary foundation and was relatively straightforward. The materials were not voluminous. The key document was the report of the plaintiffs’ orthopaedic expert that listed some ten “design defects.” The causes of action were not contested. The three common issues that were eventually certified were revised by the plaintiff during the course of the hearing in response to comments from the court. Only two issues really engaged the energy of the court – the class definition and preferability – and neither, frankly, was overly challenging. In short, this was a relatively uncomplicated motion for certification that should have proceeded with few counsel and fairly minimal costs.

10I was therefore surprised when the plaintiff submitted a costs outline seeking more than $700,000 in costs on a partial indemnity basis - $518,591 in fees and $115,660 in disbursements.

11The defendant says the costs claim is “grossly excessive by any objective measure.” The defendant argues that the costs award should not exceed $125,000.

12I don’t know if I agree with the modest amount suggested ($100,000 for fees and only $25,000 for disbursements) but I very much agree with the defendant that the claim for $700,000 is grossly excessive by any measure. I know that there were four law firms in the “consortium” that was acting for the plaintiffs, and that three of the four billed for work done on the file. I also note that counsel made a good faith effort to divide the work in an effort to avoid overlap. Nonetheless, the three law firms ended up with 34 professionals billing a total of more than 2100 hours – akin to one lawyer working for an entire year on a single certification motion. The amount of time spent by counsel on this motion is grossly excessive, to say the least.

13In my view, much of the problem stems from an over-lawyering of the “scientific evidence” – the science behind the metal on metal hip systems. This is evidence that will no doubt be important at the trial. But, with respect, it is only moderately important at the certification stage. Except for noting the “metal on metal” design feature, and the ten “design flaws” in the plaintiff’s expert’s report (that more than provided “some basis in fact” for the common issues) it didn’t really matter whether the allegedly defective product was a hip system or a Widget. Here counsel with the Stevensons’ firm spent and billed far too many hours on matters that were not needed at the certification stage. Indeed, in reviewing the costs submissions, I could easily divide the Stevensons’ bill in half and still find excesses. But I digress.

14As I explained in the introductory portion of these reasons, it is important to restore some measure of transparency and predictability to certification-motion costs awards, at least to the costs awards that I must decide. I propose to do so by following the template set out above.

15Hourly-rate compliance. I note that the hourly-rates being charged by the plaintiff’s legal team do not accord with the rates set out in the Rules Committee’s Information to the Profession. The defendant correctly documents this excess and suggests that a reduction of some $21,000 is needed to bring the hourly-rate charges in line with the well-known “grid.” On my calculations, the correct reduction on the fees side is about $33,045.¹¹

16Obvious excesses. On the fees side, as already noted, the Stevensons’ quantum of $253,378 should be reduced by at least half to about $127,000. Add to this the “hourly rate” reduction of $33,045 and the new fees sub-total is $358,856. On the disbursements side, I would delete the “legal research” amounts ($1556) and the meal charges ($674). The reduced total for fees and disbursements is now $472,286 – still too high.

17Closely comparable costs awards. The plaintiff points to three “medical device” cases where the costs awarded on a certification motion were in the $600 -$700,000 range. A three-case sample within the narrow “medical device” category is not a sufficient or reliable measure of true comparability. Some medical device cases may well provide complex certification challenges. This was not one of those cases. As I have already noted, most of the legal issues would have been answered the same way even if all I knew was that the product in question was an allegedly defective Widget. If comparable costs awards are to be considered, and in my view, they should be, it would be more helpful to consider a much broader sample, including historical averages.

18Historical averages. Over the last six years, in cases where the plaintiff claimed less than $500,000 (as here, namely $472,286 as adjusted) the plaintiff was awarded on average about $169,250. I also note from the “historical averages” chart that the average award for a successful defendant is $148,870. The appropriate range in this case, which was a relatively straightforward certification, is probably somewhere between $150,000 and $175,000.

19Final review. Standing back and considering again the factors under Rule 57.01(1) (especially the complexity, or lack thereof, of the proceeding), the various admonitions of the Court of Appeal about making sure that the costs award is fair and reasonable to the losing party, and the current and historical comparisons as set out above, I find it fair and reasonable to fix the costs at $175,000 all-inclusive.

20Order to go fixing costs at $175,000 payable forthwith by the defendant Depuy to the plaintiffs. Class counsel will understand that all costs awards paid to counsel must be taken into account in the final calculation and approval of any legal fees.

Belobaba J.

Footnotes

1. 1Dugal v Manulife Financial, 2013 ONSC 4083; Rosen v BMO Nesbitt Burns, 2013 ONSC 2144; Crisante v DePuy Orthopaedics, 2013 ONSC 5186; Brown v. Canada (Attorney General) 2013 ONSC 5637; and Sankar v Bell Mobility, 2013 ONSC 5916.
2. 2Ontario Law Reform Commission, Report on Class Actions, (Toronto: Ministry of the Attorney General, 1982).
3. 3Report of the Attorney General’s Advisory Committee on Class Action Reform, (Toronto: Ministry of the Attorney General, 1990).
4. 4S.O. 1992, c. 6.
5. 5Pearson v Inco Ltd., 2006 7666 (ON CA), [2006] O.J. No. 991 (C.A.).
6. 6Ibid., at para. 13.
7. 7An obvious fees-related excess: too many counsel at the cross-examinations or at the hearing. An obvious disbursement excess: charging for “legal research.” In my view, lawyers (who are already billing very high, monopoly-based, hourly rates for their legal knowledge) should not be charging for “legal research.” Customers should not have to pay anyone who charges by the hour, whether lawyers or plumbers, to learn on the job. Legal research is obviously essential, but it should not be a chargeable disbursement.
8. 8I acknowledge the work of counsel for DePuy in Crisante v DePuy, supra, note 1, who provided me with a a very useful costs chart showing amounts sought and amounts awarded in certification motions since May, 2007. I edited this down to 36 contested costs awards - 20 awarding costs to the plaintiffs and 16 awarding costs to the defendants. I divided the awards into two categories based on the amounts sought (fees plus disbursements): Category One – amounts sought under $500,000 (23 awards, 16 for the plaintiffs and 7 for the defendants) and Category Two – amounts sought over $500,000 (13 awards, 4 for the plaintiff and 9 for the defendant.) I then calculated the average award and average percentage (amount awarded divided by amount sought) in the two categories, for plaintiffs, defendants and overall. The results are set out above. (I remind the reader that the amounts include fees and disbursements.) I acknowledge the statistical deficiencies, but I nonetheless find the information to be of some assistance.
9. 9See, for example, Lipson v Cassels, Brock & Blackwell, 2013 ONSC 6450 at para. 29. Justice Perell awarded the plaintiff $298,582 in costs - $148,582 payable to him forthwith and $150,000 payable to him in the cause.
10. 10Crisante v. DePuy, supra, note 1.
11. 11This is the sum of the following reductions: Resnick, $175 not $225; McConville, $175 not $225; Barsky, $140 not $175; Paris, $225 not $250; McPhee, $225 not $250; Rozenszajn, $150 not $175; Gyamfi, $135 not $175; Tambakos, $225 not $250 and Diesberger, $175 not $225. Total reduction: $33,045.