Suggesting An Alternative Approach To An Uncommon Medical Device Class Action

In O'Brien v Bard Canada Inc, the Ontario Superior Court of Justice recently declined to certify a medical device class action because the plaintiff failed to provide sufficient evidence that there was commonality in respect of the 19 different mesh products implicated in the proposed class action.

The court suggested an alternative approach might be undertaken to litigate the claims, potentially by way of separate claims for each product. The court also rejected waiver of tort as a cause of action on the basis that it would be inconceivable that the representative plaintiff might waive the tort in the case before it, and rejected waiver of tort as a viable cause of action because it would not be reasonable to pursue such a claim in the context of the proposed class action.