Product Liability Experience

The following are examples of our Product Liability and Insurance Class Action Experience:

Product Liability Cases

Defibrillators

• We act for Guidant in connection with several class actions alleging defects in respect of a defibrillator product.

Hip Replacements

• We act for a U.S. medical device manufacturer in a class action involving allegations respecting components of hip replacements.

Human Tissue Implants

• We act for a U.S. medical device manufacturer in a class action involving the alleged use of inadequately screened human tissue in regenerative human tissue and bone implant products.

Paint Delamination

• Fasken Martineau acted for two major motor vehicle manufacturers in two separate proposed class actions seeking damages to vehicles where the paint allegedly delaminated. Preliminary motions were taken challenging jurisdiction over the American corporations. After several years litigating that issue, the cases were discontinued when class counsel discovered that in the intervening time their representative plaintiffs had sold their vehicles and new representative plaintiffs could not be identified.

Side Saddle Gas Tank

• Fasken Martineau acts for a major motor vehicle manufacturer in a class action alleging that the location of fuel tanks outside the framerails is unreasonably dangerous.

Horsepower Rating

• Fasken Martineau acts for Kia Canada in proposed class actions in Ontario and Québec relating to allegations that the vehicle engines do not meet the represented horsepower. The action is being vigorously defended.

Contact Lenses

• Fasken Martineau acted for Johnson & Johnson in regard to allegations respecting the quality of certain contact lens products in a Québec class action. The action was successfully resolved.

Breast Implant Litigation

• Fasken Martineau acts for Bristol-Myers Squibb and several related entities in this product liability class action by breast implant recipients. The class action was certified on a much narrower basis than was proposed by the plaintiffs and a narrower basis than a parallel class action in Ontario. The defendants successfully challenged the attempts by the plaintiffs to prosecute the case. Most significantly, the defendants successfully opposed the attempts by the Plaintiffs to obtain an order approving their litigation plan. The defendants then convinced the court to try the viability of the plaintiffs' scientific theories in advance of other issues. Faced with a trial on the merits, the plaintiffs agreed to a settlement on terms substantially lower than previously agreed to by Dow Corning in the same litigation.
• We acted for a Québec distributor in a national class action launched in Ontario seeking recovery against, among others, the federal government. We are vigorously defending that action.

House Siding

• Fasken Martineau acted for the Defendant manufacturer of allegedly defective house siding in this proposed product liability class action. The siding was alleged to prematurely deteriorate. Certification was refused.

Vaccines

• A proposed class action on behalf of all children injected at two years of age or younger with a Hepatitis B vaccine using a preservative which is alleged to causes neurological deficits including autism. After a number of pre-trial applications, we have obtained an agreement to discontinue the proceeding because the current scientific evidence does not support the claims.

Serzone

• Fasken Martineau acts for Bristol-Myers Squibb in a number of proposed class actions in Ontario and Québec respecting an anti-depressant pharmaceutical. At this time, Fasken Martineau has outstanding a number of motions challenging the jurisdiction of the Québec courts with respect to certain aspects of class action procedure legislation in that province.

Video Lottery Terminals

• Fasken Martineau acts for IGT (International Gaming Technology) who has been sued in warranty by Loto-Québec in a class action in Québec relating to allegations that video lottery terminals cause gaming addiction. This action is vigourously contested and carefully monitored since it is the first class action of that nature in North America.

Smoke Detectors

• Fasken Martineau acted for Underwriters Laboratories of Canada in a proposed $500 million class action involving allegedly defective smoke detectors. We successfully struck out the entire claim and was successful in resisting appeals to the Ontario Court of Appeal and the Supreme Court of Canada.

Computers

• We acted for Toshiba in a proposed class action involving allegedly defective computers. We were successful in striking out the entire claim. A similar class action in the United States settled for in excess of $1 billion. We are currently acting for Toshiba in a subsequent proposed class action in Ontario and in Québec in relation to separate allegations of product defect. We are currently vigorously defending those actions.

Polybutylene Plumbing

• We act for E.I. DuPont in connection with class actions in Québec, Ontario and British Columbia involving a material used in allegedly defective polybutylene plumbing. That action has been successfully resolved.

Furnace Vents

• We acted for Underwriters Laboratories in a number of proceedings in Ontario and Québec in connection with allegedly defective furnace parts in thousands of homes. We successfully defended that action and obtained a dismissal of the claim against our client.

Tainted Food Products

• Fasken Martineau acts for Tiffany Gate Foods in two proposed class actions alleging the manufacture of a tainted food product.

Entran II Hose

• We act for Goodyear of Canada in respect of all Canadian aspects of a North American wide defence of numerous class actions relating to alleged defects in a hose that forms part of a radiant heating system. That matter has been successfully resolved and is awaiting court approval.

Skin Cream

• We act for Miralex Health Care Inc. in a proposed product liability class action seeking the return of the price paid for allegedly tainted skin cream & for damages arising from the use of the cream.

Radiant Heating Panels

• We acted for several third-party municipalities in a class action by purchasers of allegedly defective radiant heating panels. The municipalities were successful in obtaining a stay of the proceedings against them, while the action was certified against the manufacturers, the Canadian Standards Association, and the provincial government.

Pacemakers

• We acted in a class action by pacemaker recipients in individual lawsuits, and are co-ordinating with national counsel defending the class action. A tentative settlement was reached.

Mini-blinds

• We acted for Zellers in a proposed class action alleging that Zellers and others sold hazardous mini-blinds. The plaintiffs did not ultimately seek certification and the claim was abandoned.

Farm Tractors

• We act for Goodyear in a proposed national class action alleging that Goodyear manufactured rubber tracks for farm tractors which fail prematurely.

Insurance Cases

• We act for Dominion of Canada in relation to allegations of insurance coverage respecting the electricity blackout of 2003 in Ontario.
• We act for numerous defendant insurance companies in proposed class proceedings in respect of the alleged improper retention by the companies of both the salvage value of automobiles and the deductibles paid by the policy holders.
• We act for Wawanesa in a proposed class action concerning the use of non-manufacturer's auto parts.
• We act for NN Life and Mony Life in two separate vanishing premium actions and acted for Transamerica in another which was successfully resolved.
• We provided advice to three other major insurance companies concerning vanishing premium class actions commenced against them.
• We provided advice to a major insurance company in respect to a proposed class action concerning its deferred annuity policies.
• We acted for the Insurance Corporation of British Columbia in a proposed class action alleging bad faith in the processing of no-fault benefit claims. This case was the first in B.C. in which certification was refused. The decision was the first case to be considered by the B.C. Court of Appeal. The Court of Appeal upheld the denial of certification.
• We act for the Insurance Corporation of British Columbia in a class action seeking damages for alleged unauthorized deduction of Canada Pension Plan disability benefits from the disability benefits received by the class under the provincial insurer's no fault motor vehicle accident benefits.
• We acted for Sun Life in a class action alleging bad faith in the sale of premium offset policies. A settlement was approved by the court and has been implemented.
• We have been retained by the defendant Crown Life in a proposed class action alleging bad faith in the sale of premium offset policies. The class aspects of the claim were withdrawn after the defendants indicated an intention to contest certification.
• We have been retained by the defendant Great West Life in a class action alleging bad faith in the sale of premium offset policies.

Selected Experience