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Finding Common Ground: Plaintiffs Get Certification Second Time Around in Boston Scientific Class Action

Published: 05/24/2017

By Jeremy Martin

Earlier this year, Justice Perell released his decision in the adjourned certification motion on the Vester v. Boston Scientific1 action.

Round One – Adjourned To Allow for Further Evidence (December 2015)

Vester v Boston Scientific Ltd. (Vester) is a resumed class action certification motion. As reported in our earlier newsletter, in 2015, Justice Perell heard a certification motion regarding the plaintiffs’ claims that the transvaginal mesh devices that Boston Scientific designed, manufactured and sold to thousands of Canadian women were defective and unsafe.

Justice Perell concluded that the plaintiffs had established that the pleadings disclosed valid causes of action in negligent design and failure to warn; that there was an identifiable class; and that the plaintiffs might qualify as representative plaintiffs. His Honour determined, however, that the plaintiffs failed to show that there was a common issue in respect of the various device classes, and therefore also failed to establish that a class action was the preferable procedure for pursuing the claim. The certification hearing was adjourned to permit the plaintiffs an opportunity to return to court with further evidence to establish that there was “some basis in fact” for the belief that all nine products had the alleged issues in common, and to revise their litigation plan accordingly.

Round Two - Class Certification Granted (February 2017)

On the resumed motion, Justice Perell certified the class action. The Court determined that there was some basis in fact to support the claim that a discrete defect – common to all of the Boston Scientific medical devices at issue – may have existed, and that there was a plausible medical theory for determining the way in which the choice of material for such devices might have been a negligent design decision causing harm to individuals that had the devices implanted.

Key Take-Away Principles

The most interesting development in this case was the Court’s rejection of the defence argument that there was no valid methodology by which the plaintiffs could establish that the alleged microscopic defect was clinically significant. The Court found that the defendant’s arguments strayed too far into the merits of the case for a certification motion. The Court found instead that the plaintiffs met the low evidentiary threshold of demonstrating “some basis in fact” for its claims.

Although the Court’s analysis did not spell this conceptual difficulty out, it appears as though the defendant was caught walking a fine line in its submissions. Defendants have a valid line of attack at certification if the plaintiffs cannot establish a “credible and plausible methodology” for establishing classwide damages. In this case, the defendants had to establish that damages could never be proven, without making the case that damages could never be significant.

This case reinforces the ongoing difficulties faced in Canadian class certification motions regarding the admission of evidence on the merits of a claim. In products cases especially, and particularly in respect of claims where a de minimis harm is alleged, these fine distinctions will often mean the difference between success and failure at certification.

The Court also recently released its decision on costs, which included a significant discount for the defendants, partially on the basis that they ought not to be responsible for “educating” the plaintiffs on the first iteration of the certification motion. The decision was unfortunate for the defendants, who had unsuccessfully argued that costs ought to be a “wash”, given that they had “won” the first certification motion and the plaintiffs “won” the second after being granted leave to re-frame their motion with new common issues and new evidence.

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1 Vester v Boston Scientific Ltd., 2017 ONSC 1095