Despite the popular belief that all product liability cases are
appropriate for certification as class actions, the recent decision
of O'Brien v. Bard Canada Inc.1 proves
otherwise. The Ontario Superior Court of Justice dismissed a
certification motion on the basis that the plaintiff failed to
demonstrate the plurality of claims beyond her own experience. She
could not demonstrate that there was a common design defect amongst
the 19 products made by the manufacturer. They were all different
in materials, shape, size, weight, density, weave, porosity,
flexibility, configuration, fixation methodology, design purposes,
and product warnings.
The plaintiff, Ms. O'Brien, moved for certification of a
product liability class action against Bard Canada Inc. and its
subsidiaries (collectively "Bard") alleging that their
pelvic mesh products used to treat pelvic organ prolapse
("POP") or stress urinary inconti¬nence
("SUI") were dangerous. She claimed Bard negligently
designed
