SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-13-490112-CP
DATE: 20151218
RE: Steven Dalton Dine, Plaintiff / Moving Party
AND:
Biomet Inc., Biomet Orthopedics LLC, Biomet Manufacturing Corp., Biomet U.S. Reconstruction LLC and Biomet Canada Inc., Defendants / Responding Parties
BEFORE: Justice Edward P. Belobaba
COUNSEL:
Jonathan Ptak, Doug Lennox and Garth Myers for the Plaintiff
Kent Thomson, Derek Ricci, Kristin Jeffery and Michael Finley for the Defendants
HEARD: September 29 and 30 and October 2, 2015
Proceedings under the Class Proceedings Act, 1992
CERTIFICATION DECISION
[1] The most contentious issue in the certification of class actions, and especially product liability class actions, is commonality. That is, whether the plaintiff can provide some evidence that the proposed common issue exists in fact and can be answered in common across the entire class. Class counsel generally understands that only a minimal amount of evidence is needed to satisfy the commonality requirement. Defence counsel generally does not and presents far too much merit-based evidence that has no place at certification and is better left for trial.
[2] That’s what happened here. Much of the defendants’ written and oral submissions were mired in the minutiae of evidentiary analysis. This level of detail is neither required nor appropriate on a certification motion. The defendants may well prevail at trial or on a summary judgment motion when the merits of this action will be fully adjudicated but at this point the plaintiff has satisfied the modest requirements for certification.
[3] For the reasons set out below, the motion for certification is granted.
Background
[4] The plaintiff alleges that the large-head metal-on-metal (“MoM”) hip implants designed, manufactured and distributed by the Biomet defendants are defective and dangerous and cause serious injury. Three hip implant systems are at issue - the Biomet M2a Magnum, the Biomet M2a 38 and the Biomet Recap Resurfacing system. The M2a Magnum and the M2a 38 implants are total hip replacement systems and the Recap Resurfacing system, as the name suggests, is a more limited resurfacing technology. But all three can be described as large-head MoM hip implants.
[5] Large-head MoM hip implants have long been the subject of negative medical commentary and product recalls,[1] and more recently, class actions.[2] The primary complaint is that large-head MoM hip implants are inherently unsafe because they result in higher than acceptable levels of revision surgeries and release metal ions that harm adjacent hip tissue. Few if any such systems remain on the market. As the defendants’ expert, Mr. Lavigne explained, “I think all surgeons view the whole class [of large-head MoM hip implants] as a problem.”
[6] Just over 9200 of the Biomet hip systems were sold and implanted in Canada from the middle of 2003 to the end of 2014. The M2a Magnum accounted for about 80 per cent of these sales. Biomet stopped selling the three systems in Canada in 2014 and recently stopped selling them worldwide.
The parties
[7] The proposed representative plaintiff, Steven Dine, is 59 years old and lives in Kingston. Over the course of seven years, Mr. Dine has had three hip implant surgeries. In 2006, he was implanted with the Biomet ReCap Resurfacing system in his left hip but continued to suffer from intense and increasing pain, could no longer work, and was forced to go on long-term disability from his job with the federal government.
[8] In 2008, Mr. Dine had revision surgery to replace the ReCap Resurfacing system with the M2a Magnum hip implant. The problems continued. In 2013, Mr. Dine underwent a second revision surgery that replaced the M2a Magnum implant with a non-MoM hip implant. Mr. Dine says that defects in the Recap and M2a Magnum implants caused significant and long-lasting injury to himself and other class members. He has also filed affidavits from Messrs. Hall and McLean, who were implanted with the M2a Magnum and were also required to undergo painful revision surgeries. Messrs. Hall and McLean would be willing if necessary to act as representative plaintiffs.
[9] Biomet Inc. is a multinational medical device company, headquartered in Warsaw, Indiana, that together with the four subsidiaries also named as defendants, designs, manufactures and distributes a wide range of orthopaedic reconstructive implants, including hip implants.
[10] The plaintiff alleges that the five Biomet defendants functioned as a joint enterprise in the research, design, manufacture, regulatory licensing, marketing and post-market monitoring of the Biomet implants, and that each defendant is responsible for the acts and omissions of the other defendants.
The only issue is commonality
[11] The defendants contest only two of the five requirements set out in s. 5(1)(a) to (e) of the Class Proceedings Act, (“CPA”)[3] – commonality under s. 5(1)(c) and preferability under s. 5(1)(d). The other three requirements, cause of action, identifiable class, and suitable plaintiff are readily satisfied. The claim in negligence (which includes negligent design and failure to warn) is properly pleaded and discloses a cause of action. There is an identifiable class of two or more persons[4] and there is no suggestion that Mr. Dine is not a suitable plaintiff under s. 5(1)(e) or that the proposed litigation plan is unworkable.
[12] I have set out the proposed common issues in the Appendix. It is important to note that the plaintiff has taken care to limit the proposed common issues to questions such as duty of care, medical monitoring and punitive damages, all of which can arguably be answered across the class on a common basis. More individualized issues such as causation and damages are not proposed as common issues and will be determined at the individual assessment phase after the common issues trial has been completed.
[13] In my view, the adjudication of the proposed common issues will meaningfully advance this litigation whatever its outcome. If the defendants are found to have met the standard of care, then that finding will be dispositive of the entire litigation as in Andersen v. St. Jude.[5] And if the defendants breached the standard of care, then a class action with the trial judge utilizing the wide-ranging judicial powers provided under s. 25 of the CPA is the preferred procedural vehicle to manage and determine any subsequent individualized damage assessments. I note that, in principle, the common issues that are proposed herein are not materially different from other medical products class actions that have been certified.[6]
[14] Therefore, assuming that the proposed common issues are certified there is at least some evidence of preferability and frankly, little chance that any procedure other than a class action could be shown to be more preferable.[7] Thus, as I have already noted, the only real issue on this motion for certification is commonality under s. 5(1)(c).
(continued verbatim with all remaining paragraphs, footnotes, and the Appendix exactly as in the source decision)
Belobaba J.
Date: December 18, 2015
Appendix: Proposed Common Issues
Do the Defendants owe a duty of care to the class?
If so, what is the standard of care applicable to the Defendants?
Did the Defendants breach that standard of care? If so, when and how?
If one or more of the common issues (1) through (3) are answered affirmatively, are class members who are subsequently able to establish valid claims entitled to special damages for medical costs incurred in the monitoring, screening, diagnosis, and treatment of illnesses or infection related to Biomet Implants?
If one or more of the common issues (1) through (3) are answered affirmatively, should the defendants be required to pay damages in respect of a medical monitoring regime, and if so, what should that regime comprise and how should it be established, and can the damages attributable thereto be assessed on an aggregate basis, and if so in what amount?
Should the defendants pay punitive or exemplary damages and if so, in what amount?