Sufficient Evidence Of Commonality In Multi-Product Medical Devices Class Actions – Cautionary Tales

In order to prove that a group of related medical devices have sufficient commonality to proceed as one class action, the plaintiff must present evidence that demonstrates 'some basis in fact' not only that there is commonality between the devices but also that there is commonality in the allegations, e.g. design defect or inadequate warning. Only where the plaintiff has not satisfied this burden will any evidence going to these issues presented by the defendant be considered and weighed.

This conclusion was recently articulated following a series of certification reasons in multi-product medical device class actions. Each of the three cases alleged commonality of the devices and commonality of the allegations regarding different yet related medical devices as their core concern on certification. Two actions were with respect to products containing transvaginal mesh and the other concerned hip implant devices.¹