Ontario Superior Court Certifies Cochlear Implant Class Action Against Advanced Bionics

• The Ontario Superior Court of Justice has certified a national cochlear implant class action against Advanced Bionics LLC.
• Up to 50 percent of the defendants' devices have failed, causing invasive surgery and a painful readjustment period for users.
• Approximately 50 class members were minors at implantation, making revision surgeries especially difficult due to their growing skulls.
• The certification has kept alive a novel duty-to-recall claim in product liability law, which holds that failing to recall a defective product is negligent.

The court's decision means that this claim will be tested on a full factual record, potentially setting a new precedent in Ontario product liability litigation.

A national class action lawsuit against Advanced Bionics LLC has been certified by the Ontario Superior Court of Justice, paving the way for approximately 250 Canadians who received defective cochlear implants to seek damages together. The claim alleges that a design defect in the devices caused bodily fluids to seep into the electrode array, short-circuiting its users and leading to invasive surgery and a painful readjustment period. Evidence on record suggests that up to 50 percent of the defendants' devices have failed in this manner, with approximately 50 class members being minors at implantation who now face especially difficult revision surgeries due to their growing skulls.

The certification of the class action has also kept alive a novel duty-to-recall claim in product liability law, which holds that if it is prudent to recall a defective product, it is by definition negligent not to do so. This legal ground was first established in Vester v. Boston Scientific Ltd., 2015 ONSC 7950, and has now been applied to the recall context in Pedersen v. Advanced Bionics LLC. The court's decision means that this claim will be tested on a full factual record, potentially setting a new precedent in Ontario product liability litigation.

The certification of the class action has significant implications for personal injury lawyers pursuing medical device claims in Ontario. To satisfy the requirements of the Class Proceedings Act (CPA), which now requires common issues to predominate over individual ones, the Pedersen court imposed strict limits on the certified claim. This means that personal injury lawyers must define the class around an objectively verifiable injury and limit damages to what can be assessed in common. The template set by this case is clear: define the class around a specific injury and limit damages to what can be assessed collectively.

Personal injury lawyers pursuing medical device claims in Ontario should define the class around an objectively verifiable injury and limit damages to what can be assessed in common, as per the Pedersen court's certification of a national cochlear implant class action.

Source: Original reporting via [Source]