ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SHARON HARPER and GERALD HARPER
Plaintiffs
- and -
AMERICAN MEDICAL SYSTEMS CANADA INC., AMERICAN MEDICAL SYSTEMS INC., and ENDO PHARMACEUTICALS
Defendants
Proceedings under the Class Proceedings Act, 1992
AND BETWEEN:
LINDA-SUE MIDDLETON and HOWARD BOSSCHE
Plaintiffs
- and –
AMERICAN MEDICAL SYSTEMS CANADA INC., AMERICAN MEDICAL SYSTEMS INC., and ENDO PHARMACEUTICALS
Defendants
James Boyd for the Plaintiffs
James Boyd for the Plaintiffs
Proceedings under the Class Proceedings Act, 1992
HEARD: In writing
REASONS FOR DECISION
PERELL, J.
1In these two class actions under the [Class Proceedings Act, 1992]1, a Settlement Agreement as well as a Compensation Protocol to govern the administration of the Settlement Agreement were approved on October 4, 2019.2
2The settlement compensates women who were implanted with pelvic mesh devices manufactured by the Defendants. The devices contained synthetic, polypropylene mesh that is surgically inserted for the purpose of providing support for pelvic floor muscles to treat stress urinary incontinence or pelvic organ prolapse.
3The Plaintiffs now request an Order that:
a. Andrea Plumb be appointed to hear and assess any appeal from a decision of the Claims Administrator(s);
b. Any appeal shall be conducted in writing in accordance with the process set out in the Compensation Proposal; and
c. No person shall have any claim against Andrea Plumb arising from or relating to: (i) the fulfilment of her responsibilities pursuant to the Settlement Approval Order, (ii) her assessment of any appeal made substantially in accordance with the Compensation Protocol and/or this Court’s order approving the Compensation Protocol; or (iii) the distribution of the Settlement Amount.
4The Settlement Agreement stipulates that the Net Settlement Proceeds will be paid pursuant to the Compensation Protocol. To claim compensation, a Class Member files a claim with the Claims Administrator. To become an Approved Claimant, a Class Member must complete, execute and submit a claim form to the Claims Administrator by the Claim Deadline and provide the prescribed evidence in support of the claim.
5The Compensation Protocol provides for a 60-day “deficiency period” to provide claimants with an opportunity to correct technical deficiencies in their Claim Forms or in the evidence submitted to support their claim.
6Following the completion of the deficiency period, the Claims Administrator notifies the claimant whether the claim has been approved or rejected and if approved the amount of the compensation awarded.
7If a claimant disagrees with the Claims Administrator’s assessment of her claim, the claimant has a right to appeal to a Referee. The Compensation Protocol provides that appeals will be reviewed and assessed by the Referee, and that appeals will be made in writing to the Referee, supported only by the documentation provided to the Claims Administrator.
8The Compensation Protocol provides for the appointment of a Referee, selected by Class Counsel, to hear appeals from decisions of the Claims Administrator.
9Class Counsel requests that Andrea Plumb, a partner with the law firm of Lerners LLP, be appointed as the Referee.
10Ms. Plumb is experienced medical legal counsel with significant knowledge of pelvic anatomy and related issues and substantial experience reviewing medical records. including gynecological medical records.
11Ms. Plumb was called to the Ontario Bar in 1996 and has practiced in the area of civil litigation with an emphasis on health law with a particular interest in matters involving complex scientific evidence. She has defended obstetrical and gynecological medical negligence claims. She has been counsel on cases pertaining to gynecological matters, including a case involving a transvaginal mesh repair procedure. In addition to her legal experience, Ms. Plumb also worked as a nurse at London Health Sciences Centre before her law career.
12Andrea Plumb has reviewed the Settlement Agreement and the Compensation Protocol and is aware of the duties and responsibilities as a referee. She has agreed to serve as the Referee, subject to approval by this Court, to review and assess appeals from decisions of the Claims Administrator impartially in accordance with the terms of the Settlement Agreement and Compensation Protocol. She has agreed to a fee of $400 per appeal. Ms. Plumb has no interest in the outcome of these appeals or other affiliation which might result in an actual or perceived conflict of interest if she is appointed as the Referee.
13Ms. Plumb is well-qualified to be appointed Referee, and I approve of her selection and appointment.
14I further Order that no person shall have any claim against Andrea Plumb arising from or relating to the fulfilment of her responsibilities pursuant to the Settlement Approval Order. The other terms of the Order requested by Class Counsel are unclear or redundant.
15I have signed the Appointment Order.
Perell, J.
Released: December 24, 2020
COURT FILE NO.: CV-15-527760-00CP
COURT FILE NO.: CV-15-529000-00CP
DATE: 2020/12/24
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SHARON HARPER and GERALD HARPER
Plaintiffs
- and -
AMERICAN MEDICAL SYSTEMS CANADA INC., AMERICAN MEDICAL SYSTEMS INC., and ENDO PHARMACEUTICALS
Defendants
AND BETWEEN:
LINDA-SUE MIDDLETON and HOWARD BOSSCHE
Plaintiffs
- and –
AMERICAN MEDICAL SYSTEMS CANADA INC., AMERICAN MEDICAL SYSTEMS INC., and ENDO PHARMACEUTICALS
REASONS FOR DECISION
PERELL J.
Released: December 24, 2020
Footnotes
- S.O. 1992, c. 6.
- Harper v American Medical Systems Canada Inc., 2019 ONSC 5723.