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Judge certifies transvaginal mesh class action

|Written By Alex Robinson

An Ontario judge has certified a class action lawsuit against medical device manufacturer Boston Scientific Ltd., in what lawyers say is the first successfully certified contested action concerning transvaginal meshes in Canada.

Daniel Bach says it is rare for judge’s to adjourn certification proceedings to allow plaintiffs to submit further evidence and even rarer for those actions to subsequently be certified on return.

In Vester v. Boston Scientific Ltd., Ontario Superior Court Justice Paul Perell certified the action, which claimed the nine different devices manufactured by the company were negligently designed, and that Boston Scientific failed to warn the women of their potential risks.

Class members say they experienced adverse side effects after having one of the devices — which are all made of the same polypropylene — surgically inserted in order to treat incontinence. The lead plaintiff, Susan Vester, claimed she suffered complications and a great deal of pain after undergoing surgery to have one of the products implanted in her.

The class action is the latest of a number of transvaginal mesh cases that have been proposed in recent years against different manufacturers.

This, however, was the first that was successfully certified on a contested motion, says Daniel Bach, one of the lawyers representing the plaintiffs.

“We’re really pleased with this decision,” says Bach, who is a partner at Siskinds LLP.

“We think it’s a big victory for our clients who are trying to get into court to have a judge adjudicate whether or not the products that were put in their body were safe and fit for their use and whether or not they were properly warned of any dangers in the products.”

The certification motion in the Boston Scientific case was originally heard in November 2015, but Perell adjourned the matter to give the plaintiffs another chance to submit more evidence. Perell determined the plaintiffs would have to provide more evidence in order to establish there was some basis in fact for common issues for their negligent design claim, as well as their claim that the manufacturer had failed to warn.

Bach says it is rare for judges to adjourn certification proceedings to allow plaintiffs to submit further evidence and even rarer for an action to be certified subsequently on return.

Perell used a little used subsection of the Class Proceedings Act, which gives judges the power to adjourn motions for certification to permit parties to amend their materials or pleadings, and to provide further evidence.

Boston Scientific argued that while the plaintiffs identified a common feature of all nine of its transvaginal mesh products, they had failed to establish that it was connected to their claims.

Both sides made further submissions, but on return, Perell found the evidence submitted by the plaintiffs established some basis in fact for common issues for the claim.

“This is evidence there is a common issue for all the women implanted with these devices about the safety and efficacy of the medical device in question, being these various Boston Scientific transvaginal mesh devices, all of which are made of the same polypropylene,” says Bach.

David Morritt, one of the lawyers representing Boston Scientific, did not immediately respond to a request for comment.

  • I Wasn't Told

    Shari
    I too have the mesh implant. I was never informed of any issues concerning reports or problems related about the material used. I was only informed if typical surgical complications due to anesthesia. Had I known it this mesh was having complications with many people and the material it was made of, i would have run out of the surgeons office. I now have neurological issues and my life is not the one I left behind on the surgical table. I have great difficulty as an equestrian, running, lost my relationship due to fear and pain of being touched. Lost my fitness, and my body to plastic. i lost jobs due to inability to lift, and function as well as my coworkers. I have been dealing with the same issues the mesh was to fix only now I can't find relief from pain. I can't believe looking back, what this peice of plastic has done to ruin my life. This was to be the best years of my life and looked forward to travel, having a home, and live. Now I only dream of traveling and a home because i lost my income, desire, hope and can't afford to even fix my car to take day trips. When you see what plastic does to landfills I only imagine the effects it's doing to my body The only good about the mesh, it will be found in my grave hundreds of years after my death. A part of me that will never recycle!
  • Album Title

    Linda cox
    Love to finally read progress on this class action suit as I have fallen victom to their négligence

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