Court Reaffirms That Common Feature Does Not Equal Common Defect In Multiple-Model Product Liability Class Actions

On December 17, 2015, the Ontario Superior Court of Justice denied certification in a proposed multiple-model product liability class action (Vester v Boston Scientific Ltd, 2015 ONSC 7950). The plaintiffs alleged that the products in question were negligently designed and that the defendants failed to warn of the dangers associated with the products.

Justice Perell found that the evidence did not establish a basis-in-fact for the proposed common issues, and as such a class proceeding was not the preferable procedure. Certification as a class action was denied, but Justice Perell adjourned the motion pursuant to section 5(4) of the Class Proceedings Act to allow the plaintiffs to provide further evidence and to revise the litigation plan.