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National Class Certified in Nova Scotia in Wright Hip Implant Case

Victor Lewin - Friday, March 14, 2014

On March 7, 2014, the Honourable Justice Michael Wood released his decision which certified the proposed class action on behalf of Canadian residents who received a Wright Medical Profemur Hip Implant after February, 2001 and suffered a fracture of a component of that system. The certification motion was heard before Justice Wood on August 15, 2013. Wagners filed the class action on September 13, 2011.

Justice Wood reviewed and analyzed the evidence put forth by Wagners on behalf of the Plaintiff and Class as well as Counsel for the Defendants' evidence. In his decision, Justice Wood also reviewed the criteria for certification of a class action and, pursuant to section 7(1) of the Nova Scotia Class Proceedings Act, S.N.S. 2007, c. 28, he found that:

  • the pleadings disclosed a cause of action;
  • there was an identifiable class who could be represented by a representative party;
  • the claims of class members raised a common issue;
  • a class action was the preferable procedure for the proceeding; and
  • the representative plaintiff was appropriate.

Cause of Action
The Defendants had conceded that a cause of action existed in negligence however Wright Medical's lawyer took issue with the cause of action in relation to the Nova Scotia Sale of Goods Act. Their position was that the Statement of Claim did not establish a relationship between buyer and seller. Justice Wood found that:

[32] In my view, it is not necessary that the plaintiff set out the particulars of the alleged purchase agreement in the statement of claim in order to satisfy the requirement that the pleading disclose a cause of action. Paragraph 40 recites that the plaintiff and other class members purchased the device pursuant to agreements as defined in the legislation. In my view, this is sufficient to satisfy this criterion.

Identifiable Class
While noting the Defendants' argument that the class should not be national in scope due to a paucity of potential members and the difficulties that may be encountered with claimants spread across Canada, Justice Wood found that the concern was not relevant to the question of the existence of an identifiable class. The ruling means that, in addition to the many Nova Scotia class members, those individuals who have registered with Wagners and who reside in British Columbia, Ontario, New Brunswick, PEI and the Yukon are part of the class proceeding. Any future Canadian residents, whether they reside in Quebec, Alberta, Newfoundland and Labrador or any other province are eligible for inclusion in the class action if they meet the class definition.

Common Issues
The Defendants made a number of strong arguments against the common issues as defined in the Statement of Claim stating that many specific factors could lead to a fracture which are not a flaw in the design or manufacturing of the device. In addition, Counsel for Wright Medical argued that there was insufficient evidence to show the existence of a common issue with respect to whether the device was defective.

Justice Wood reviewed a number of reported decisions which dealt with certifying Common Issues. He found that:

[45] In assessing whether common issues exist among the class members, the court is not concerned with the strength or weakness of the plaintiffs claims. To the extent that there may be conflicting evidence, that is not something that should be resolved at the certification stage. The same holds true with respect to differences of opinion between experts.

The Plaintiff proposed four (4) Common Issues as follows:

(a) Was the Wright Profemur Hip Implant System defective or unfit for its intended use?

(b) Did any of the Defendants breach a duty of care owed to any of the Class Members and, if so, when and how?

(c) Does the Defendants' conduct warrant an award for punitive damages and, if so, to whom should they be paid and in what amount?

(d) With respect to Nova Scotia residents, did any of the Defendants breach a statutory duty under the Sale of Goods Act, S.N.S. 1989, c.408, s. 1?

Justice Wood was satisfied that Common Issues (a) and (b) were appropriate as it was clear that these would be raised in relation to each class member.

Concerning Common Issue (c), while the punitive damages issue should be resolved on a class wide basis, the compensatory damages require individual consideration and punitive damages would need to be quantified at that time was the opinion of Justice Wood.

As for Common Issue (d), Justice Wood stated that:

[52] The final proposed common issue relates to the Nova Scotia Sale of Goods Act. There was no evidence indicating how Mr. Taylor or any members of the proposed class came to acquire the WPHIS and, in particular, whether there was a purchase agreement with any of the defendants. In addition, with a national class many of the members will not be entitled to rely on the Nova Scotia Sale of Goods Act. I am not satisfied that the plaintiff has met the minimal evidentiary burden of showing a common issue with respect to whether there was a breach of the Sale of Goods Act and I would not certify that as a common issue.

The potential of a subclass for NS residents was discussed during arguments on August 15, 2013, however Justice Wood found no evidence indicating how many NS Class Members may exist or if the devices were acquired in a common manner.

Preferable Procedure
The Defendants' position on this aspect of the case was that individual causation issues existed and, due to the relatively small size of the Class, administering the case on a national basis would be difficult.

Justice Wood did not agree with these arguments and stated:

[59] ... I do not believe that any individual causation issues which might exist are sufficient to overwhelm the common issues that I have certified.

[60] ... There is no reason to refuse certification of this as a national class simply because it may be small in number.

Representative Plaintiff and Litigation Plan
Mr. Taylor was deemed to be an appropriate individual to represent all members of the proposed Class. The litigation plan will be further discussed and refined at a future Case Management Conference.

In addition to the Wright Profemur class action, Wagners are also involved in proceedings or investigating other defective medical products manufactured by Johnson & Johnson (Depuy), Stryker and Zimmer.

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