Court File and Parties
COURT FILE NO.: CV-18-589750-00CP
DATE: 20220808
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
COLLEEN LANA COPLAND and RILEY JASON COPLAND
Plaintiffs
- and –
JOHNSON & JOHNSON INC., JOHNSON & JOHNSON MEDICAL COMPANIES, JOHNSON & JOHNSON, JOHNSON & JOHNSON INTERNATIONAL, and ETHICON INC.
Defendants
Proceeding under the Class Proceedings Act, 1992
COUNSEL:
Jill S. McCartney for the Plaintiffs
Gordon McKee and Robin Linley for the Defendants
HEARD: In writing
REASONS FOR DECISION
PERELL, J.
[1] This is a motion for court approval of a discontinuance of a proposed personal injury medical products liability class action. The discontinuance is sought to implement a settlement scheme for individual claims to be resolved or to be advanced by the putative Class Members.
[2] The background to the motion is as follows.
a. The Defendants, Johnson & Johnson Inc., Johnson & Johnson Medical Companies, Johnson & Johnson, Johnson & Johnson International, and Ethicon Inc., (collectively, “Ethicon”), manufacture and distribute “Physiomesh”, a surgical mesh for the repair of abdominal wall hernias.
b. On June 13, 2016, Health Canada issued a product recall of Physiomesh.
c. Approximately 2,500 Physiomesh Products were sold in Canada before the recall.
d. On February 16, 2017, pursuant to the Class Proceedings Act, 1992,[^1] Colleen Lana Copland and her spouse Riley Jason Copland commenced a proposed products liability class action against Ethicon on behalf of persons implanted with Physiomesh.
e. Siskinds LLP was the proposed Class Counsel.
f. On March 21, 2018, the Coplands delivered their motion record for the certification of their action as a class proceeding. Ethicon has not served its responding material, nor filed a Statement of Defence.
g. The certification motion was never scheduled but since 2020, the parties have engaged in serious settlement negotiations. The negotiations included fulsome investigations of individual cases and the development of a plan for addressing future claims. The negotiations involved a detailed review of identified individual claims of the known class members.
h. By 2022, the parties had reached a settlement that involves a scheme for the settlement of claims or their resolution by individual actions and not by a class proceeding. The terms of the settlement scheme are:
i. the discontinuance of the proposed class action
ii. Similar claims regarding Physiomesh were also commenced in Québec, Saskatchewan, and British Columbia. As part of the proposed resolution, dismissal or discontinuance orders will be sought in these related cases.
iii. notice to the putative class
iv. after the publication of the Notice, the continuance for 90 days of the current suspension of the limitation period for individual claims, which suspension was effected by the commencement of the proposed class action
v. the resolution of already identified and negotiated individual claims from a global settlement fund
vi. a mechanism for resolution of other claims
vii. payment to putative Class Counsel of $100,000 for costs, inclusive of disbursements, and applicable taxes
viii. A Settlement Program Period will run for 180 days following approval of the Discontinuance in Ontario and Québec, during which time Ethicon will consider resolution of claims (not included within the initial global settlement), which would have otherwise been captured by the proposed class action. The claimants need not commence an action, provided notice is given to Ethicon by Siskinds, together with certain information about the implant.
ix. The parties undertake to make best efforts to achieve a resolution for future claims discovered during the Settlement Program Period in a manner similar to the resolution of the Settling Claimants.
x. If the individual putative Class Members cannot reach an agreement on the eligibility of or extent to which a particular claimant may participate in the resolution process, the claimant is not precluded from commencing individual litigation.
i. At the present time, the lawyers for the putative Class Members are aware of approximately 52 individuals with Physiomesh claims throughout Canada.
j. Siskinds has docketed time that exceeds $345,000.00, plus applicable taxes and disbursements of $35,000 with respect to advancing the putative Class Members’ claims in the immediate action. Additionally, Siskinds has in excess of $1.0 million in time docketed as general work for the benefit of all of the hernia mesh actions.
[3] The settlement and dispute resolution scheme in the immediate case is similar to the scheme used in Naylor v Coloplast Canada Corporation,[^2] a similar case involving a transvaginal mesh manufacturer with a relatively small share of the Canadian market, where I approved a discontinuance of a proposed class action. The notice in the immediate case is modelled on the notice in the Naylor case.
[4] Section 29 of the Class Proceedings Act, 1992 requires court approval for the discontinuance, abandonment, dismissal or settlement of a proceeding commenced under the Act. Section 29 states:
Discontinuance, abandonment and settlement
- (1) A proceeding commenced under this Act and a proceeding certified as a class proceeding under this Act may be discontinued or abandoned only with the approval of the court, on such terms as the court considers appropriate.
Settlement without court approval not binding
(2) A settlement of a class proceeding is not binding unless approved by the court.
Effect of settlement
(3) A settlement of a class proceeding that is approved by the court binds all class members.
Notice: dismissal, discontinuance, abandonment or settlement
(4) In dismissing a proceeding for delay or in approving a discontinuance, abandonment or settlement, the court shall consider whether notice should be given under section 19 and whether any notice should include,
(a) an account of the conduct of the proceeding;
(b) a statement of the result of the proceeding; and
(c) a description of any plan for distributing settlement funds.
[5] A motion for discontinuance or abandonment should be carefully scrutinized, and the court should consider, among other things: whether the proceeding was commenced for an improper purpose; whether, if necessary, there is a viable replacement party so that putative class members are not prejudiced; or whether the defendant will be prejudiced.[^3]
[6] One of the ways that a class member may be prejudiced by a discontinuance of a proposed class action is that during the pendency of the class proceeding, the running of any limitation period is suspended by s. 28 of the Act, but this protection will end if the proposed class action is discontinued. In the immediate case, this prejudice, however, is ameliorated by giving the putative Class Members notice that the notice of discontinuance will only come into effect 90 days after the date of the notice.
[7] In the immediate case, there is no prejudice to putative class members who may either participate in the settlement scheme or bring claims while continuing to be protected by the suspension of the limitation period.
[8] Like the situation in Naylor, the immediate class action is a product liability claim where a resolution has been reached for the known members of a relatively small number of claimants. There is no evidence that suggests that the proposed class action was brought for an improper purpose.
[9] In the immediate case, I am satisfied that the Plaintiffs have met the test for a discontinuance. In the circumstances of the immediate case for those putative Class Members who have settled claims, this discontinuance is beneficial and in their best interests. For the other putative Class Members, they are not prejudiced by the discontinuance.
[10] In all these circumstances, it is appropriate to grant leave to discontinue the action.
[11] Order to go as asked.
Perell, J.
Released: August 8, 2022
COURT FILE NO.: CV-18-589750-00CP
DATE: 20220808
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
COLLEEN LANA COPLAND and RILEY JASON COPLAND
Plaintiffs
- and –
JOHNSON & JOHNSON INC., JOHNSON & JOHNSON MEDICAL COMPANIES, JOHNSON & JOHNSON, JOHNSON & JOHNSON INTERNATIONAL, and ETHICON INC.
Defendants
REASONS FOR DECISION
PERELL J.
Released: August 8, 2022
[^1]: S.O. 1992, c. 6.
[^2]: 2016 ONSC 1294.
[^3]: Green v. The Hospital for Sick Children, 2021 ONSC 8237; Batten v. Boehringer Ingelheim, 2021 ONSC 6606; Bardoul v. Novartis Pharmaceuticals Canada Inc. 2021 ONSC 2261; Winter v. C.R. Bard, 2020 ONSC 3532; Naylor v. Coloplast Canada Corporation, 2016 ONSC 1294; Drywall Acoustic Lathing and Insulation Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc, 2012 ONSC 5288; Frank v. Farlie, Turner & Co, LLC, 2011 ONSC 7137; Hudson v Austin, 2010 ONSC 2789; Sollen v. Pfizer, 2008 ONCA 803, [2008] O.J. No 4787 (C.A.), aff'g 2008 CanLII 8618 (ON SC), [2008] O.J. No. 866 (S.C.J.); Logan v. Canada (Minister of Health), [2003] O.J. No. 418 (S.C.J.), aff’d (2004), 2004 CanLII 184 (ON CA), 71 O.R. (3d) 451 (C.A.).