Daniel Bach, Siskinds LLP
Mesh Medical Device News Desk, June 3, 2015 ~ News out of Canada is that a class action lawsuit against American Medical Systems (AMS) has been certified clearing the way for defective product litigation and/or settlements.
The certification means Siskinds will represent everyone in the class unless a woman chooses to opt out and pursue her own litigation. The settlements from AMS so far offered to women in the states do not include Canadian women.
Bach explains a Canadian class action process has similarities to the U.S. multi-district litigation system but allows “common issues” about the safety of mesh products to be determined at once, for all women implanted with AMS mesh, at a “common issue trial.” Damages in a class action, if it is successful at trial or settles, are generally awarded based on the degree of injury of each class member.
The court will be looking to try issues common to every member of the class focused on the conduct of the defendant – Is the mesh dangerous? And did AMS breach its duty of care when it marketed and designed the mesh?
“If we were to win at trial on those questions, every woman who has AMS mesh would have to come forward and say ‘I have an Apogee,’ for example, ‘and this many surgeries.’ It’s like a truncated trial because the common issues are already determined and bind every member of the class, and AMS.”~ Daniel Bach
The competency of the doctor could be an issue that could be tried separately. Trials could be years away, says Bach.
The Canadian system of justice rarely sees monumental jury awards such as the $100 million in damages recently awarded Deborah Barba in her Delaware trial naming Boston Scientific.
“Awards for punitive damages in Canadian courts tend to be lower,” says Bach. Another difference is that damages across the board for defective medical devices or even car accidents generally range lower because Canada offers its citizens universal healthcare. In that case, the government may seek reimbursement from a defective mesh maker. Bach adds that generally the money is in addition to the plaintiffs’ claim so it will not further harm her.
On February 10, 2010, Health Canada issued a Notice to Hospitals relaying reports of various intraoperative and postoperative complications associated with the use of surgical mesh to treat SUI and POP. A second notice followed May 13, 2014 from Health Canada advising that “although many women treated with these devices have had good outcomes, Health Canada continues to receive reports of complications, including some serious and life-altering events, associated with the use of these surgical devices.” Regardless of the device in question, the use of transvaginal surgical mesh has been associated with severe side-effects.
The class actions relate to allegations that the defendants failed to adequately warn patients and physicians that use of transvaginal mesh increases the risk of serious injuries and complications.
Siskinds represents women in Canada who have had a transvaginal mesh implant to treat SUI or POP. Siskinds is also litigating mesh class actions against Johnson & Johnson, Boston Scientific, Coloplast and Covidien. #
Mesh Top Story on CTV, MND Dec 2012
Thousands of Canadian Women Suffer in Silence, May 2013
Noni Wideman, Sidelined by Transvaginal Mesh, MND, May 2012
Suffering in Silence: Jane Dowdall, MND, October 2011
CTV: Canadian Transvaginal Mesh Lawsuit,, MND, May 2012