Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
Issue link: https://digital.carswellmedia.com/i/1484268
6 www.lexpert.ca Feature involving the same general issues rather than proposing a national class action. Most of the lawsuits engaging this model involve medical devices, primarily orthopedic and women's health products, according to "New Developments in Mass Torts North of the Border," a recent article written by Linley and Blakes colleague David Côté. But, the authors note, they also involve pharmaceuticals and over-the-counter medicines. Mass torts can bring together less than a dozen, or more than one hundred plaintiffs, say the authors. Linley and Côté suggest four main reasons for this emerging trend in Canada. Pursuing a mass tort rather than a class action allows "entrepreneurial plaintiffs' firms to seek a seat at the settlement table while avoiding the corresponding risk," which could include a "protracted and potentially difficult certification fight." e mass-tort route also avoids disputes over carriage, where plain- tiffs' lawyers vie for the right to represent the class. Lawyers may also be motivated by recent changes to legislation governing Ontario class actions, which they perceive as making the certification test less favourable to plaintiffs. And, as the level of injury can vary between class members, lawyers see mass torts as providing more bespoke recovery for individual claimants. On that last point, Linley and Côté note that there is no data – to their knowl- edge – that indicates plaintiffs recover greater amounts in mass tort than class action settlements. For defendants, there are advantages and disadvantages to mass torts, says Linley, who acts for pharmaceutical and medical device product manufacturers. A primary advantage of the mass tort model is that defendants typically have greater access to individual medical records, which are vital in assessing liability issues. He says that questions of causation and damages commonly turn on the evidence of a particular plaintiff 's circumstance. "For a host of different reasons in the class-action context, you do not typically get access to each class member's indi- vidual records." e more evidence a defendant has on the individual people bringing the claims, the more opportunity there is to assess the claims' merits and develop potential defences, says Linley. There are also document-access advan- tages on the plaintiff side, says McCartney. "In a class proceeding , we're much farther down the road before we get to see defence productions, and that would not be the case if you're commencing your cases" individually. She says it is also an advantage to be spared the preliminary procedural motion involved in a class action, as cases can advance more quickly toward trial. is "cuts both ways," she adds, because when not creating a class and advancing the interests of that class, the plaintiffs' lawyer is limited to the clients known to them. It is normal for defendants to face a class action and individual tort claims simultaneously. "One firm might go out and commence a class action involving a particular product," says Linley. "You may then have a different firm that goes out and commences a whole series of individual actions following the mass tort model." In a class action, courts will assess what procedure will best address the interests of the class, whether it is a class proceeding or alternatives such as individual litigation. Defendants fighting both a class action and mass tort can point to the latter to argue that there are viable alternatives to give access to justice to the class and, potentially, also argue against the viability of the class action, says Linley. There are also disadvantages for defen- dants, he says. In a class action, when the parties have negotiated a resolution and settled, there FOUR REASONS FOR THIS EMERGING TREND "IN A CLASS PROCEEDING, WE'RE MUCH FARTHER DOWN THE ROAD BEFORE WE GET TO SEE DEFENCE PRODUCTIONS, AND THAT WOULD NOT BE THE CASE IF YOU'RE COMMENCING YOUR CASES [INDIVIDUALLY]" Jill McCartney SISKINDS Potential seat at settlement table for plaintiffs' firms Avoidance of carriage fights Amendment to Ontario's Class Proceedings Act Bespoke recovery Source: Robin Linley and David Côté, Blake, Cassels & Graydon LLP