A Change Of Pace For Product Liability Class Actions: Certification Denied In Two Recent Cases

Oft-referred to as "quintessential class actions", the majority of product liability actions that have sought certification as class proceedings in the last 10 years have been granted certification. However, two recent decisions denying certification may signal a shift towards greater scrutiny of proposed product liability class actions. Judges have become more willing to refuse certification where it is not clear there is sufficient commonality amongst the class members or that a class proceeding will be the preferable procedure.

In Warner v Smith & Nephew Inc., a recent Alberta certification decision, the product at issue was Smith & Nephew's hip resurfacing system, known as "the Birmingham system". After being implanted with the Birmingham system, the representative plaintiff was found to have toxic levels of metal ions in her blood (the Birmingham system is a metal product) and had to have the device removed. Certification failed on the issues of identifiable