Canadian Courts Gearing up for Pelvic Mesh Litigation  

//Canadian Courts Gearing up for Pelvic Mesh Litigation  

Canadian Courts Gearing up for Pelvic Mesh Litigation  

Image, Daniel Joseph Petty

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.

Jill McCartney, Partner Siskinds Law

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.

Daniel Bach, Siskinds LLP

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.


Individual Pelvic Mesh Cases 

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.

Chrissy and Tony Brajcic

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.

Paul Miller, Howie Sacks Henry Law

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.

Canadian courts from, Thejournal.ie

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.     ###

 

By | 2018-01-23T18:07:12+00:00 January 19th, 2018|News|14 Comments

About the Author:

I’m National News Editor, Jane Akre and I began Mesh Medical Device News Desk aka Mesh News Desk (MND) in the summer of 2011 just after the Food and Drug Administration issued an explicit warning to the public that complications associated with surgical mesh used for prolapse repair (POP) and incontinence (SUI) are NOT rare! That was the starting point for the litigation you see today and thousands of lawsuits have been filed by women whose lives have been altered, some permanently, by the use of this petroleum-based product.

14 Comments

  1. Nonie Wideman January 21, 2018 at 11:23 am - Reply

    Just to clarify for those Canadians waiting for settlements represented by Paul Miller, having a future cost of care was a waste of time and money in dealing with one of the biggest mesh manufacturers. It all boils down to how many surgical interventions done to remove mesh. That and nothing more. I hope the class action suit does better, but somehow I doubt that plaintiffs will fare better.

    • Jane Akre January 21, 2018 at 9:12 pm - Reply

      Just like the States… the number of mesh removals. Seems arbitrary.

    • Deanie April 11, 2018 at 11:17 am - Reply

      I was told my age was against me getting a better settlement, I am 77.

      • Jane Akre April 11, 2018 at 12:01 pm - Reply

        That is an unreal excuse, in my opinion. it wasn’t against you in getting the implant in the first place was it? Does that say your life is less valuable because of your age?

        • Deanie April 11, 2018 at 12:38 pm - Reply

          I was 65 when implanted with the device, had more surgery and multiple problems post surgery. Six years later a perforated colon lead to sepsis. After life support, multiple abdominal surgeries and months in hospital they must have thought I did not have many years left! I confounded the statistics and now volunteer on the ICU where I was a patient. For me, I was just happy to have a conclusion.

          I don’t know how it is in other provinces in Canada but Alberta Health Services takes a portion of the settlement, and I was also charged HST because I used Paul Miller. We only have GST in Alberta for services rendered but I am forced to go after a refund myself.

          • Jane Akre April 11, 2018 at 12:52 pm

            Thank you Deanie,,,, I’d love to hear more about how the Canadian system of justice differs from the US. Here we form either a class action or in the case of mesh, multidistrict litigation. The difference is in an MDL, a person is awarded according to differing criteria. For mesh, it was decided the number of mesh revision/removals would be a guideline, though some good lawyers advocate for their clients who, for whatever reason, cannot undergo a removal. Then the plaintiff either receives a settlement or goes to trial. As you have seen in these pages, some of the trial conclusions end up delivering millions to the injured woman. I’m sure there is not a plaintiff who would prefer to have her health back!

          • Deanie April 11, 2018 at 1:49 pm

            I asked to be an individual client but my understanding was that I became part of a ‘wave’ or group when settlements were negotiated. The cases went through an American associate company, I do not quite understand the system that was used but it seems to have been effective.

            I think a lot of Canadians do not know about the caps on settlements and punitive damages, I certainly did not. The cap on pain and suffering is in the region of $360k CAD. This was a Supreme Court decision. There will never be million dollar awards in Canada.

          • Jane Akre April 11, 2018 at 2:01 pm

            Wow. I’m not a lawyer but when juries want to send a message to wrongdoers about their corporate crimes, it seems Canada doesn’t let them do that. Juries get angry when they hear the evidence because it could just as easily be them.

    • Deanie April 11, 2018 at 11:53 am - Reply

      Yes, Nonie, something more. The age of the woman is a factor

  2. Teresa January 22, 2018 at 3:47 pm - Reply

    We don’t matter!! Our quality of life, our pain, our lifetime of damage!! In my class action lawsuit it was determined by how many surgeries I had to remove the mesh!! Not my current state of mind, my destroyed body and never again being able to make love to my husband!!!! They don’t care!!!!

  3. Lordhelpus January 23, 2018 at 5:13 am - Reply

    I am so done with blaming the manufacturers of this “mesh from hell.” The real blame should be put on those in authority who have the power to stop them, but decide to turn a blind eye and deaf ear, while they sit on their hands and do nothing….

    • Kitty January 23, 2018 at 9:08 pm - Reply

      Lord help us I agree with you…but who are the authorities?

  4. Brenda January 31, 2018 at 3:12 am - Reply

    There no cap on loss wages in Canada.

  5. DJ February 10, 2018 at 6:06 pm - Reply

    I just want this to be over with I’ve gone through so much over the last eight years I decided to sign off as I didn’t want to wait another eight years to see my day in court,and I still have wait it’s ridiculous all ready.
    I don’t want to go bankrupt as our credit would suffer and they will take it anyway dammed if you do dammed if you don’t.
    I just prey this comes to a resolution soon how much longer must we suffer now financially on top of our health issues, it’s not right where going to loose almost everything soon spent all our savings to survive waiting, and waiting, and waiting.
    Enough is Enough

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