Canadian Courts Gearing up for Pelvic Mesh Litigation
Mesh Medical Device News Desk, January 19, 2018 ~ In Canada, there is no multidistrict litigation like there is in the U.S. where many pelvic mesh product liability cases are filed in one federal court for resolution.
The Canadian system of justice concerning pelvic mesh litigation leads the injured to join a class action or to file for an individual settlement.
Is your case individual or a class action?
Even with no multidistrict (MDL) litigation in Canada, the thousands of defective product pelvic mesh cases are moving toward resolution.
Compare that to the U.S, where 105,000 are filed in one court in Charleston, WV, with thousands more pelvic mesh cases filed around the country – New Jersey, Philadelphia, and Los Angeles – for example, in Canada there are only about 2,000 defective product cases filed against five mesh manufacturers.
Since Canada has a considerably larger land mass than the US, with only about one-tenth the population, a general guideline is it will have about one-tenth of any number in the U.S.
If so, that means there are many more pelvic mesh cases waiting to be filed.
Class Action Cases
Because there is no MDL system in Canada, a couple thousand women are currently enrolled in class actions, personal injury pelvic mesh lawsuits against AMS (American Medical Systems), Boston Scientific, Coloplast, Cook and Covidien.
Johnson & Johnson (Ethicon) is waiting to be certified as a class following a procedural motion.
Siskinds law firm of London, Ontario has one of the largest inventories of pelvic mesh cases filed in a class, approximately 1,000 pelvic mesh cases.
Attorney, Jill McCartney, a partner with Siskinds, tells MND that some issues, which are common to the class, can be decided at a common issues trial for the whole group.
“There are common issues that can be decided for the whole group at a common issues trial, such as breaches of the standard of care, including defective design and failure to warn, and general causation. Then the litigation would proceed to individual trials for each class member on specific causation of their individual mesh related injuries and damages, for example, ‘Ms. Brown had her mesh implanted on a certain date and subsequently it caused erosion with infections,’ ….”
Those injuries must also be quantified, she adds.
McCartney says they use a class to promote access to justice since it’s a better vehicle for inclusion of all women with mesh products. For litigation outside of the class action, the class member must have an individual action and may need a trial on all issues for each plaintiff.
“A cost benefit analysis must be undertaken and in Canada the cost benefit analysis may not make sense for an individual action in all mesh implant cases depending on the circumstances and facts of the individual and the potential case.”
That means Siskinds, as class counsel represents the common interests of everyone in the class unless a woman chooses to opt out and pursue her own individual litigation.
Read more about how these cases are conducted here in a MND previous interview with Daniel Bach of Siskinds.
McCartney adds that the legal fees to cover individuals in the class action generally range from 20 to 33% depending on a number of factors in a case, including the risk, the complexity, and the amount of time the firm puts into the case.
In Canada, class action counsel fees must be approved by the Court.
In the U.S., law firms lining up cases to settle are charging clients as much as 40% plus additional expenses and a contribution of 5% into the common benefit fees.
See NYT here on fees in Vioxx litigation of 2007.
Paul Miller files individual transvaginal pelvic mesh cases. Miller joined Toronto’s Howie, Sacks & Henry LLP as a partner one year ago. Previously he was at Will Davidson.
He also represents the estate of the late Chrissy Brajcic who lost her life last November 30th after repeated infections and antibiotic treatment. She had just started another round of antibiotics, “the strong stuff,” she said in one of her last posts, when her death was announced.
Miller tells MND that the cause of death has not yet been established and autopsy results are pending. Read MND story here.
Presently he has about 260 clients who have filed pelvic mesh actions with 200 having settled. Those who opt out may be able to go to trial, though there have been no cases that have gone to trial so far.
And just like the U.S., some clients are unhappy with how settlement dollars pale in comparison to huge jury verdicts at trial.
But even at trial, Miller says pain and suffering is capped in Canada, currently at $367,000, which goes up slightly with the cost of living index.
“By reading the trial verdicts and the big numbers they have to be educated on the law in Canada. We have a cap on pain and suffering and non-pecuniary damages (pain and suffering) that Americans do not. We have almost like a cap on punitive damages. So far the highest amount the Supreme Court has allowed is one million dollars.”
With caps on damages how then is a wrongdoer held accountable for injuries, particularly if there is evidence the mesh manufacturer knew, or should have known, that users of the product would suffer injuries?
Miller says, “That’s a question you have to ask the judges. It’s a serious injustice for those who have serious or catastrophic injuries. Whether its transvaginal mesh or a horrible car accident or slip and fall, and there are catastrophic damages, I don’t get it but I don’t care about the wrongdoer, I care about my client.”
“When I went through my settlements I had one week where I was calling woman after woman and having to repeat the cap and it really made an impact on me. When you talk about it occasionally, that’s the law, but when you speak to 10 15 women a day for a week and keep telling them, Oh my God! You know what their injuries are, it’s horrific and it’s nothing I can change. The Supreme Court has dealt with it so it’s not changing.”
To add to settlement dollars, Miller sometimes get a nurse or occupational therapist involved to assess the future care costs.
Ontario has a loser pay system (it differs in each province), where the plaintiff could be on the hook for the defendants’ court fees if the plaintiff loses her case before a jury. Miller advises that before clients go to trial they take out adverse cost insurance to cover any possible losses.
His firm is no longer taking mesh cases. After 6.5 years, Miller says it’s time to move on once they are settled.
And the plaintiff must understand that by signing a settlement she is forever releasing the company from future liability.
Miller says, “That’s no different than the person who breaks his ankle and settles it and has future problems. There is an end to litigation. I’ve had that discussion with many clients. People may not like defendants but they are entitled to having their litigation come to an end.”
There is another distinction between Canadian and US courts, for example, what about those wigs?
“No, not wigs but we do have to wear the robes,” says Miller. ###