Court File and Parties
Court File No.: CV-05-CV-295910CP Date: 2020-03-19 Superior Court of Justice - Ontario
Re: Frank Peter, Mrs. Bernadett Peter, Mark Peter, Ms. Bernadett Peter, Brian Frederick Foote, Rhonda Lynn Lo Monaco, Anita Prain, Francine Norouzi and Her Majesty The Queen In Right Of The Province Of Alberta as represented by the Minister of Health and Wellness, Plaintiffs And: Medtronic, Inc. and Medtronic of Canada Ltd., Defendants
Before: Justice Glustein
Counsel: Won J. Kim, Megan B. McPhee, and Joel Rochon, for the Plaintiffs Danielle Royal, for the Defendants
Heard: March 2, 2020
Reasons for Decision
Nature of Motion and Overview
[1] The plaintiffs bring this motion pursuant to the Class Proceedings Act 1992, S.O. 1992, c. 6 (the “CPA”) for an order (along with ancillary relief) to:
(i) on consent, approve the settlement of the action (the “Settlement”) in accordance with the terms of the settlement agreement executed on April 24, 2019 (the “Settlement Agreement”),
(ii) approve the payment of Class Counsel fees and disbursements, and
(iii) approve the payment of a $10,000 honorarium to each of Frank Peter and the estates of Brian Foote, Francine Norouzi and Rhonda Lynn Lo Monaco.
[2] A similar motion was brought in Court File No. 07-CV-341755CP (the “Robinson Action”). I release reasons concurrently in both motions, and rely on the reasons in the Robinson Action to set out the applicable law in both motions.
[3] At the hearing, I granted the relief sought approving the Settlement Agreement, the payment of Class Counsel fees and disbursements, as well as the ancillary relief sought, subject to some minor modifications to the draft order provided at court. I dismissed the request for the payment of the honoraria.
[4] I signed an order at the hearing with reasons to follow. I now set out my reasons below.
Facts
(a) Review of the litigation
[5] The action is a national class proceeding certified on behalf of Canadians surgically implanted with certain Medtronic defibrillators manufactured before December 31, 2003 containing a potentially faulty Chi 4420L battery. These defibrillators were the subject of a Health Canada advisory in 2005.
[6] The devices at issue in this litigation (collectively, the “Defibrillators”) are as follows:
| Defibrillator | Model | Manufactured Between |
|---|---|---|
| Marquis VR | 7230 | April 2001 and December 2003 |
| Marquis DR | 7274 | April 2001 and December 2003 |
| Maximo VR | 7232 | April 2001 and December 2003 |
| Maximo DR | 7278 | April 2001 and December 2003 |
| InSync Marquis | 7277 | April 2001 and December 2003 |
| InSync III Marquis | 7279 | April 2001 and December 2003 |
[7] The Plaintiffs allege that the Defibrillators carried a risk of rapid battery depletion and claim damages as a result of the Defendants’ alleged negligence in the design, development, testing, manufacturing, licensing, assembly, distribution, marketing and sale of the Defibrillators.
[8] The Plaintiffs claim that the alleged rapid battery depletion arises from a specific internal battery short mechanism in the Chi 4420L battery (bearing part number 411310-006) manufactured prior to December 31, 2003. The potential defect was identified through accelerated bench testing and eventually led to Medtronic issuing an advisory in February, 2005 (the “Advisory”), as a result of which it is alleged that Class Members elected to have their devices replaced.
[9] The position of the Defendants, as supported by the available evidence, is that the potential defect has not manifested in any implanted Canadian patient. This position is consistent with the experience of Class Counsel in its interactions with Class Members since the commencement of this Action, in that no Class Members have reported a battery short experience to Class Counsel.
[10] This litigation initially began as two separate proceedings, one commenced by Notice of Action issued on August 25, 2005 (plaintiffs Frank Peter and his family represented by Mr. Won J. Kim, then at REKO LLP and now at Kim Spencer McPhee Barristers P.C.) and another commenced by a Statement of Claim issued on September 1, 2005 (plaintiffs Brian Frederick Foote, Rhonda Lynn Lo Monaco, Anita Prain and Francine Norouzi represented by Mr. Joel Rochon at Rochon Genova LLP).
[11] Through negotiation and agreements reached following a contested carriage motion, Messrs. Rochon and Kim were appointed lead counsel for the Plaintiffs (“Class Counsel”) and the two actions were consolidated as reflected in the subsequently filed Second Fresh as Amended Statement of Claim. The Defendants have vigorously denied the Plaintiffs’ allegations throughout these proceedings.
[12] The certification motion in this matter was heard on November 13-16, 2007. By Order dated December 7, 2007, the action was conditionally certified as a class proceeding on behalf of the following classes (collectively, the “Class” or “Class Members”):
(i) an “Implant Class” comprised of all persons implanted in Canada with one of the Defibrillators containing the Chi 4420L battery bearing part number 411310-006 produced prior to December 31, 2003, and
(ii) a “Family Law Class” comprised of all family members of the Implant Class who are entitled to assert a derivative claim for damages to section 61 of the Family Law Act, R.S.O. 1990, c. F.3, as amended, or other similar provincial legislation.
[13] Following certification, the defendants brought a motion before the court, seeking to bifurcate both the discovery and the common issues trial of two of the certified common issues relating to the quantification of any accounting or disgorgement remedy and the public health insurers’ (“PHI”) entitlement to any such accounting certification.
[14] Perell J. granted the Defendants’ motion, and while leave to appeal the decision was granted by Dambrot J., the Divisional Court panel that heard the appeal dismissed the Plaintiffs’ appeal and upheld the bifurcation order.
(b) The settlement process
[15] A two-day mediation took place in this matter before William G. Horton on July 8 and 9, 2009. In advance of the mediation, Class Counsel requested and received information on the number of Defibrillator implants, explants, deaths and complications, as well as average selling price for devices in Canada, and information about the U.S. Multi-District Litigation in regard to the Defibrillators.
[16] Although the parties were unable to reach a resolution at the 2009 mediation, the process was productive in providing a better understanding of the parties’ respective positions and their relative strengths and weaknesses.
[17] A further mediation took place in Toronto in January 2018. With the assistance of the Honourable Frank Iacobucci, the parties agreed on the basic terms of a proposed settlement. Thereafter, the process of drafting the settlement documents was started, including the articulation of eligibility and compensation terms, administration and notice protocols and various administrative documentation necessary to make a settlement operational.
[18] Significant roadblocks were encountered in securing the consents of the PHIs to the proposed settlement terms relating to their claims for insured health care services provided to Class Members. Additional lengthy negotiations were required to overcome those issues.
[19] In March 2019, the Defendants communicated an interest in funding the Settlement before their year-end, which was April 26, which required that the Settlement Agreement be signed by that date. The parties executed the Settlement Agreement on April 24, 2019, subject to obtaining the written consents of the PHIs.
[20] The Settlement Amount [1] was held in trust by counsel for the Defendants and was deposited into a daily interest GIC on August 26, 2019, pending the receipt of all PHI consents. Thereafter the written consents of the PHIs were sought and, after amending the Settlement Agreement as set out in the Addendum to Settlement Agreement, all such consents were obtained as of late October 2019.
[21] On December 19, 2019, I approved the form and substance of the Approval Hearing Notice and scheduled the present motion. Once the Approval Hearing Notice Order was issued on January 8, 2020, the parties and the Claims Administrator moved quickly to complete and execute the Escrow Agreement, attended to transferring the Settlement Amount to the Claims Administrator’s escrow account, and finalized the applicable components of the Notice Plan which were implemented beginning on January 15, 2020.
(c) The Settlement Agreement
[22] The Settlement is national in scope. The key terms are set out below.
1. The Settlement Benefits
[23] The Defendants have paid the Settlement Amount of $3.072 million CDN which, with accrued interest of $17,792.92, was transferred to RicePoint Administration, Inc. (“RicePoint”) as Escrow Agent and Claims Administrator on January 10, 2020. It will be used to pay Approved Claims, the payments to the PHIs, the costs of notice and claims administration and court-approved Class Counsel fees, disbursements and applicable taxes.
[24] Class Members will be entitled to submit claims in accordance with the Claims Eligibility Criteria. Compensation is available to Class Members who had their Defibrillators explanted/replaced as a result of the Advisory. Class Members will need to (i) establish that they were implanted with one of the included Defibrillators and (ii) provide medical records reflecting that their Defibrillator was explanted/replaced prematurely as a result of the Advisory.
[25] For Class Members whose explant/replacement surgery occurred between February 1, 2005 and August 31, 2005, they need only provide the operative report confirming the procedure. For Class Members whose explant/replacement surgery occurred later than August 31, 2005 they will need to provide either medical records that contain a contemporaneous medical opinion stating that the explant/replacement was a result of the Advisory or, if no such record exists, a Physician Declaration (included in the Claim Package) wherein their treating physician attests to the Advisory being a substantial factor in the decision to explant/replace the Class Member’s Defibrillator.
[26] The base compensation payable for an uncomplicated premature explant is $5,000, inclusive of all claims of Family Class Members. Additional payments may be made to Class Members who establish through medical records that they sustained certain surgical complications at or immediately following their explant/replacement surgery.
[27] Provision has also been made in the Settlement Agreement for either over-subscription or under-subscription by Class Members. If a higher than expected number of Class Members advance approved claims, the value of all approved claims will be proportionately reduced. If a lower than expected number of Class Members advance approved claims, all payments to Class Members for approved claims as well as the payment to the PHIs will be proportionally increased.
[28] If, after all Claims have been finally adjudicated, there remains a residue, any such amount will be redistributed on a 50/50 basis as between the PHIs and Class Members with approved claims, with the latter balance being distributed pari passu.
[29] The PHIs have settled all subrogated and/or direct claims arising from the costs of insured medical services provided to Class Members arising from the facts alleged in the action. The Settlement Agreement provides for the up-front payment of $500,000 to the PHIs, to be distributed among them according to a population distribution metric, as well as the above-noted 50% interest in any residue that may remain after full payment of all claims made under the Settlement.
[30] The PHIs have executed copies of the Consent/Release set out in the Settlement Agreement, confirming that they have consented to the compromise of their claims through the Settlement Agreement in accordance with the terms of the applicable release language set out in the Settlement Agreement.
2. Notice
[31] The Settlement Agreement provides for a robust Notice Plan aimed at advising Class Members of the terms of the Settlement Agreement as well as providing information about the motion seeking its approval and the approval of the Settlement Agreement.
[32] The Notice Plan required that prior to the within motion, notice of the Approval Hearing would be disseminated through a substantial direct mailing component, both to Class Members and to cardiologists and electrophysiologists across Canada. In addition, the Approval Hearing Notice was to be published in national and regional newspapers in English and French, with a digital media presence via Google Ads and press releases in both English and French.
[33] Direct mail notice was disseminated in accordance with the Notice Plan beginning on January 15, 2020. The settlement website, www.medtronicleadsettlement.com, went live on that date as well. In addition, the newspaper notices, press releases and digital media campaigns were disseminated in accordance with the Notice Plan.
[34] Upon approval of the Settlement Agreement, a further notice will be disseminated to advise Class Members. Specifically, the Settlement Approval Notice will be directly mailed (either electronically or by regular mail) to Class Members and to Canadian cardiologists and electrophysiologists. In addition, the Settlement Approval Notice will be posted on the settlement website and Class Counsel’s websites. Press releases in English and French will be disseminated via Canada News Wire, advising Class Members of the Settlement’s approval.
3. The Claims Administrator
[35] Pursuant to the order of this court dated December 18, 2019, RicePoint was appointed the Claims Administrator for various pre-settlement purposes, including the direct mail and settlement website components of the Notice Plan, and for the purpose of receiving any objections to the Settlement Agreement and delivering same to counsel for the parties and the court.
[36] This motion also seeks to have RicePoint appointed as the Claims Administrator for the processing and adjudication of Claims under the Settlement Agreement. RicePoint has extensive expertise in administering national class action settlements in Canada, including settlements dealing with pharmaceutical and medical device cases and the related personal injury aspects of such cases.
[37] RicePoint provided Class Counsel with a comprehensive settlement administration proposal setting out costings for all aspects of the administration services it would provide, including providing all services in both official languages and expeditiously attending to having the Settlement Agreement and exhibits translated. The total fee for RicePoint’s work in implementing the Notice Plan and in administering the Settlement is $96,074 plus applicable taxes.
4. The Claims Process
[38] The claims process under the Settlement is simple and streamlined. Class Members need only establish that (i) they had an implant with one or more of the Defibrillators (in many cases, this will simply require confirming that they received a Certification Notice or providing a copy of their device implant card) and (ii) their Defibrillator was explanted/replaced as a result of the Advisory.
[39] The claims of Class Members will be adjudicated by RicePoint, on the basis of the records submitted to establish whether the eligibility criteria for premature explant have been met, and, if applicable, whether any complications ensued. Under the Settlement Agreement, RicePoint will not need to consider subjective criteria in adjudicating claims. The quantification of any award to be made arising from such claims is subject to the approval of Class Counsel.
[40] Because of the clear and objective nature of the eligibility criteria, there is no appeal from the determination of the RicePoint. This enables more efficient processing and payment of claims. This approach also allows for more of the Settlement Amount being available to pay Class Members’ claims rather than fees charged by an outside adjudicator.
5. Class Member Response
[41] As of February 18, 2020, RicePoint had received 105 telephone and two e-mail inquiries, had sent out 28 requested Claim Packages, and had received 1 completed Claim Package.
(d) The retainer agreements
[42] The retainer agreements allow Class Counsel to seek this court’s approval for payment of the fee requested. Certain retainers with representative plaintiffs provide for fees calculated on a contingency term of 30% of the recovery (including damages and interest but excluding disbursements and costs) to the class and others provide that fees are to be calculated based on a contingency term of 25% of the total amount recovered or on the basis of a three times multiplier of the time spent prosecuting the claim, whichever is higher.
(e) Time spent and expenses incurred
[43] Class Counsel’s docketed time in prosecuting the action, as of February 18, 2020 is $3,365,612.41, representing thousands of hours of lawyer and legal support staff time over the course of over fourteen years.
[44] Class Counsel incurred disbursements in the amount of $180,000.18 (as of February 18, 2020).
[45] In addition to the work done to advance the litigation and secure the benefits contained in the Settlement Agreement, Class Counsel will be responsible for significant future work upon approval of the Settlement Agreement, including coordinating with RicePoint, responding to Class Member inquiries, formalizing the Settlement Order, updating Class Counsel’s websites, monitoring the implementation of the Settlement Agreement and addressing any questions or issues raised by Class Members or RicePoint, and attending this Court to report on the administration of the Settlement Agreement as it progresses.
(f) The involvement of the representative plaintiffs
[46] The relevant evidence is set out in affidavits from counsel and the representative plaintiffs. Counsel stated in his affidavit:
It is proposed that [each of Frank Peter and the estates of Brian Foote, Francine Norouzi and Rhonda Lynn Lo Monaco] be paid honoraria in recognition of the contribution they made in advancing this case towards settlement for the benefit of all Class Members. In this regard, it is proposed that each receive $10,000.
All Representative Plaintiffs were required to make themselves available to assist with the various stages of the litigation, made significant contributions of time and effort in advancing the Action and no progress would have been made without their contributions which inured to the general benefit of all Class members and which should be recognized.
[47] Only the representative plaintiff Frank Peter and Deborah Clarke (on behalf of the estate of Brian Foote) swore affidavits relevant to their role in the litigation.
[48] I summarize the relevant evidence of the representative plaintiffs as follows (quoting from the Frank Peter affidavit):
(i) He had been “actively involved in the litigation over the years, including speaking to and meeting with Class Counsel on various occasions to inform myself about the litigation and advise counsel about my personal circumstances”;
(ii) “I understood from the outset of this lawsuit that my role was not just to advance my own case, but to do so on behalf of Canadians who had experiences similar to mine and to do what was required of me in their best interests”; and
(iii) “I have remained available to Class Counsel and have assisted when called upon to do so for the benefit of the Class as a whole”.
(g) Objectors to the proposed settlement
[49] There was one written objection to the proposed settlement filed on behalf of Michele Serwatuk, the daughter of William Serwatuk, deceased as of November 29, 2008.
[50] The objection is based on the alleged unfairness of the Settlement providing compensation only to those who had a Defibrillator “explanted”, i.e. removed or replaced. The objection is that the initial class covered all who had a Defibrillator implanted, such that explantation was not a requirement.
[51] The complications that Mr. Serwatuk was alleged to have incurred as a result of his Defibrillator were not related to the alleged rapid battery depletion, but instead were “related to the device at issue”.
Analysis
(a) Issue 1: Approval of the Settlement Agreement
1. The applicable law
[52] I rely on the law as set out in the companion reasons in the Robinson Action.
2. Application of the law to the evidence
i. The presence of arm’s-length bargaining and the absence of collusion
[53] The nature of this litigation and related settlement negotiations were highly adversarial. The Plaintiffs strongly resisted the Defendants’ efforts to bifurcate certain common issues, and brought both a successful leave to appeal motion and an ultimately unsuccessful appeal to Divisional Court.
[54] The parties underwent two separate mediations, several years apart, before reaching an agreement in principle recommended by a leading jurist, the Honourable Frank Iacobucci.
ii. Amount of evidence, discovery and investigation
[55] Prior to a settlement being reached, the Defendants had produced their Affidavit of Documents with all Schedule A productions which Class Counsel has reviewed and analyzed.
[56] Class Counsel has no knowledge of any Class Members who experienced a battery short, which is consistent with information provided by the Defendants that there were no reports of actual injury arising from this battery defect.
iii. Zone of reasonableness and likelihood of success
[57] The defect as alleged by the Plaintiffs was detected in what was characterized as highly accelerated bench-testing; in other words, the defect was detected in an artificial environment and at the time of the Advisory, a returned product analysis (not due to a malfunction) found nine units with the defect, representing a possible rate of 1 in 10,000. Thus, although there was a demonstrated potential risk of the defect, the rate of such defect was exceptionally low and, in those devices where the defect was actually detected, there had not been any injuries caused.
[58] The quantum of compensatory payment to Implant Class Members was based principally on a previously approved settlement in a comparable class action involving a similar alleged defect in defibrillators manufactured by a different company. In the Guidant case, compensation was available for Class Members who had their defibrillator explanted as a result of an advisory, up to a maximum of $1,272,000 which was expected to provide payment of $6,000 to Class Members with premature explants. This payment was also inclusive of the claims of Family Class members. The settlement also provided for additional payments to Class Members who suffered certain extraordinary injuries (up to a maximum of $800,000), along with payment of $300,000 to the PHIs.
[59] In Guidant, the risk of the defect manifesting was far greater than in this case and the notification of the risk to the Class was in the context of a “Class 1” recall, involving a situation where there is a reasonable probability that the use of or exposure to the involved product will cause serious adverse health consequences or death. In the present case, the Advisory was considered to be a “Class 2” recall, where the use of or exposure to the involved product may cause temporary adverse health consequences or where the probability of serious adverse health consequences is remote.
[60] In the present case, there were no device failures resulting in injuries to patients, whether in Canada or elsewhere. This is a significant distinction from the Guidant case in which such injuries had been suffered by implanted patients, albeit not in Canada. The advisory in the Guidant context conveyed greater danger associated with the devices and would be expected to be more likely to both cause alarm to Class Members and to prompt medical recommendations for preventative measures than would be expected as a result of the Advisory in this case. As a result, the potential exposure and liability profile in Guidant was greater than in this case, which is reflected in the compensation being slightly less.
[61] A more recent settlement in the case of Houle et al. v. St. Jude Medical Inc., 2019 ONSC 2493 (“Houle”) is also comparable. In that case, there were estimated to be 8,900 class members implanted with defibrillators that had batteries that were prone to developing lithium clusters which could lead to premature battery depletion. Unlike the accelerated bench-testing in this case, the defect in the Houle case manifested in class members’ devices and had, internationally, been associated with two patient deaths and ten reports of serious adverse events. There were also reports of adverse events in Canadian patients. The settlement proposed, inter alia, payments of up to $10,000 to class members. As in Guidant, the potential risk to class members was greater in Houle than in this action, providing a stronger liability case for the plaintiffs and warranting a lower settlement discount.
[62] In all the circumstances, particularly in view of the litigation risks at stake in this case, the terms of the Settlement Agreement fall within the zone of reasonableness. As set out above, the Plaintiffs’ cases had significant weaknesses that may have resulted in the action having been unsuccessful if tried on the merits on a class-wide basis. Lack of injury could have presented unsurmountable challenges for Class Members in proving their individual claims and damages even if successful at the common issues stage.
iv. Recommendation of Class Counsel
[63] Class Counsel recommends the approval of the Settlement Agreement on the grounds that it is fair and reasonable and in the best interests of the class. Class Counsel’s experience and recommendation carries significant weight.
v. Support of the representative plaintiffs, neutral party and objections
[64] The Settlement Agreement is supported by the representative plaintiffs (or their estate representatives), and the parties’ experienced mediator.
[65] With respect to the objection, Ms. Serwatuk did not raise any issue concerning the alleged rapid battery depletion, but instead raised other alleged “complications” from Mr. Serwatuk’s use of the Defibrillator. Consequently, I do not find that the objection is relevant to the basis for the Settlement, which I find to be reasonable for the reasons I discuss above.
vi. Conclusion
[66] The Settlement is fair and reasonable and in the best interests of the Class Members. The process by which the Settlement was achieved was at all times arm’s-length and adversarial in nature. At various times, the parties took conflicting views which, had they not resolved, would have resulted in termination of the negotiations. The Settlement fulfills all of the objectives of the CPA, and provides imminent, direct benefits to Class Members with eligible claims, while protecting them from serious risks of litigation.
(b) Issue 2: Approval of class counsel fees and disbursements
[67] Class Counsel are seeking approval for the payment of legal fees in the amount of $776,937.87 (plus $101,001.92 in applicable HST), representing 30% of the Settlement Amount of $3,072,000 plus $17,792.92 in accrued interest, less the $500,000 payment to the PHIs, and disbursements of $180,000.18 (inclusive of taxes), for a total amount of $1,057,939.97.
1. The applicable law
[68] I rely on the law as set out in the companion reasons in the Robinson Action.
2. Application of the law to the evidence
[69] I find that there is no basis to rebut the “strong presumption of validity” of the contingency fee arrangement (Cannon, at para. 9).
[70] I rely on the following factors:
(i) The retainer agreements in this case all allow Class Counsel to seek this court’s approval for payment of the fee requested. Certain retainers with representative plaintiffs provide for fees calculated on a contingency term of 30% of the recovery to the class and others provide that fees are to be calculated based on a contingency term of 25% of the total amount recovered or on the basis of a three times multiplier of the time spent prosecuting the claim, whichever is higher;
(ii) Class Counsel’s time actually incurred greatly exceeds the amount being requested. Class Counsel’s docketed time in prosecuting the action, as of February 18, 2020 is $3,365,612.41, representing thousands of hours of lawyer and legal support staff time over the course of over fourteen years. The total fee requested in this case represents a negative multiplier on the base time incurred by Class Counsel;
(iii) Class Counsel undertook extensive work in bringing these cases forward and incurred reasonable disbursements in the amount of $180,000.18 (as of February 18, 2020);
(iv) In addition to the work done in advancing the litigation and securing the benefits contained in the Settlement Agreement, Class Counsel will be responsible for significant future work upon approval of the Settlement Agreement, including coordinating with RicePoint, responding to Class Member inquiries, formalizing the Settlement Order, updating Class Counsel’s websites, monitoring the implementation of the Settlement Agreement and addressing any questions or issues raised by Class Members, RicePoint and attending this Court to report on the administration of the Settlement Agreement as it progresses;
(v) The litigation has been ongoing for over fourteen years and has involved issues of considerable legal and medical complexity. Class Counsel conducted extensive legal and factual research in support of the claim and worked closely with its expert in preparing for certification, in attending on the contested certification and pleadings motions and all resulting appeals and in conducting the multiple settlement negotiations that ultimately resulted in the Settlement Agreement;
(vi) Class Counsel assumed the risk that the negotiations would not be successful and that the time spent and expense incurred in that process could be wasted;
(vii) The financial burden of litigating this case, both in terms of disbursements and the lost opportunity costs associated with diverting time and other resources away from other files, has been significant, as reflected in the quantum of Class Counsel’s time and disbursements actually incurred;
(viii) The Settlement Agreement provides benefits to the Class Members which are both monetary and intangible. The value of the total benefits to Class Members amounts to $3,072,000 (plus accrued interest) and, there are no reversionary rights to the Defendants;
(ix) The monetary value of the benefits negotiated on behalf of the Class Members mitigates the risks involved in proceeding to a common issues trial, which would extend both the litigation risks and the duration of the action. Further, the qualifying criteria and other features of the Settlement Agreement are fair and will provide appropriate benefits to Class Members in a streamlined and expeditious process;
(x) The anticipated average individual settlement value in this case, based on a projection of 100-200 claims will be $5,000 for Class Members who underwent a premature replacement of their defibrillator battery/generator. Additional payments may be made to Class Members who suffered complications during or shortly following their replacement surgery;
(xi) The Settlement is consistent with the results in comparable cases;
(xii) Both Guidant and Houle involved situations where the nature of the recall and/or the harm giving rise to the litigation were more significant, including the fact that in Houle, there were cases of death and serious injury believed to be associated with the manifested battery defect. Consequently, the lower payment level proposed herein is fair and reasonable;
(xiii) A further feature of the Settlement Agreement is that the process for determining the entitlements of the PHIs has already been resolved, such that no separate settlement needs to be negotiated on behalf of individual Class Members;
(xiv) Resolution of this matter will give many Class Members access to benefits as well as finality to their claims. It will also avoid the delay, expense and risks of a common issues trial and spare Class Members from the likely insurmountable challenges (in this case) of proving individual causation and damages at a subsequent trial or hearing; and
(xv) In the absence of a class proceeding, it is unlikely that the Class Members would have commenced litigation against the Defendants due to concerns regarding the expense associated with such complex litigation.
[71] For the above reasons, I approve Class Counsel’s fee request (including disbursements) as fair and reasonable, in the total amount of $1,057,939.97, comprised of $776,937.87 in legal fees (plus applicable HST of $101,001.92) and disbursements of $180,000.18 (inclusive of taxes).
(c) Issue 3: Approval of honoraria for Frank Peter and the estates of Brian Foote, Francine Norouzi and Rhonda Lynn Lo Monaco
1. The applicable law
[72] I rely on the law as set out in the companion reasons in the Robinson Action.
2. Application of the law to the evidence
[73] I find that the evidence does not support the “exceptional” order of the payment of an honorarium to any of the proposed representative plaintiffs.
[74] There is no evidence of unusual or rare circumstances, let alone exposure to costs or evidence that the action could not have been brought without them. There is no evidence as to any exceptional time spent on the case (let alone records or evidence as to the amount of time as was before the court in Windisman or Robinson). The essence of the evidence is that the representative plaintiffs were “actively involved in the litigation” and “remained available to Class Counsel”, which was the work any representative plaintiff would be required to do. Without any unique factors to warrant an honorarium, I am not prepared to grant it.
Order and Costs
[75] For the above reasons, I grant the relief in the order dated March 2, 2020.
Glustein J. Date: March 19, 2020
Footnote
[1] All capitalized terms not otherwise defined are as defined in the Settlement Agreement.