http://www.canlii.org/en/on/onsc/doc/2012/2012onsc3660/2012onsc3660.html
Much of the decision deals with whether the defendant breached the standard of care. The court concludes it did not. In terms of the outcome, one could stop reading at that point.
There is then a considerable discussion of issues of causation, had the court found differently on the breach issue. Somewhat oddly, common issue three is phrased as: "Does a Silzone coating on heart valves, or annuloplasty rings, materially increase the risk of various medical complications including, but not limited to, paravalvular leakage, thrombosis, thromboembolism, stroke, heart attacks, endocarditis or death?" While this is clearly put in terms of material increase in risk, the court's causation analysis seems entirely on the basis that the relevant test is, and was intended in stating the common issue to be, but-for on the balance of probabilities. The court does not engage with the leading Canadian, much less British, decisions on using an increase in risk test.
There is also an interesting discussion of "waiver of tort". I usually take this to mean that the plaintiffs are seeking disgorgement damages as their remedy in tort rather than compensatory damages, which is commonly raised in class claims so each plaintiff does not have to establish individually caused damage and the appropriate level of compensatory damages. This is tricky in negligence cases since damage is an element of the cause of action. The law on this in Canadian class actions is a mess, as noted at paras 578-594, and the judge here does not clean it up, despite acknowledging hopes in the legal community that she would do so (para 577). But some of the policy comments are likely to stir the debate further.
The decision also contains much discussion of the role of scientific evidence in this sort of litigation.
Stephen
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Dr. Stephen G.A. Pitel
Associate Professor
Goodmans LLP Faculty Fellow in Legal Ethics 2012-13
Faculty of Law, Western University
(519) 661-2111 ext 88433
Dr. Stephen G.A. Pitel
Associate Professor
Goodmans LLP Faculty Fellow in Legal Ethics 2012-13
Faculty of Law, Western University
(519) 661-2111 ext 88433