Judge certifies transvaginal mesh class action

Judge certifies transvaginal mesh class action
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.
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.

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.

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