Crisante v. DePuy Orthopaedics et al, 2014 ONSC 7557

Court File No.: CV-415755-CP
Date of this Order: April 7, 2014

SUPERIOR COURT OF JUSTICE - ONTARIO

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

AND:

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

Proceeding under the Class Proceedings Act, 1992

BEFORE: Justice Edward Belobaba

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

Gordon McKee and Robin Linley for the Defendants

HEARD: In writing

Certification order and Notice

(1) The names and addresses issue

Order: Defendants to make reasonable efforts to locate the names and addresses of implant class members in product adverse event reports and any other related sources of information that are in the defendants’ possession where a province of residence is identified and that province is not B.C. or Quebec.

Reasons: In the Henderson affidavit, the defendants explain that they do not collect the names and addresses, and do not have a registry of persons, who have had DePuy hip replacements. I agree with the defendants that requiring an extensive internal manual review of all relevant information sources relating to some 1398 potential incidents is “disproportionately burdensome” and “will not increase the effectiveness of the already robust and comprehensive proposed notice program.” The most this court can do, given that this obligation would also have been imposed upon the defendants at discoveries, is to make the Order noted above.

(2) The notice issue

Order: The notice of certification shall be entitled “DePuy ASR Hip Implant Class Action” and class counsel’s current “DePuy Hip Implants” website shall be re-titled “DePuy ASR Hip Implants.”

Reasons: It is beyond dispute that a notice of certification, including its heading, should contain all information that is reasonably necessary to reach and be understood by the intended class. The defendants ask that the name “DePuy” be removed from the notice’s heading and class counsel’s website. I agree with the defendant that the name of the manufacturer or distributor of the allegedly defective product is not always necessary and can be omitted where the product name itself is well-known or widely used without reference to its manufacturer or distributor, e.g. recent pharmaceutical class actions involving prescription drugs such as Vioxx or Celebrex. Here, however, I am not satisfied on the evidence before that the impugned hip implant is routinely described or referred to by class members as the “ASR” hip implant and that adding the name “DePuy” in the heading has no informational value and is not reasonably necessary. I also note that in their Canadian recall notice, the defendants themselves used the “DePuy ASR” descriptor. Order therefore to go that both the notice heading and the class counsel website shall include the words “DePuy ASR”.

Belobaba J.

Date: April 7, 2014