A Fasken team comprising Paul Martin, Sarah Armstrong, Robin Roddey, David Ziegler and Tina Cody represent Cook in a series of Canadian class action lawsuits concerning inferior vena cava (“IVC”) filters manufactured and sold by Cook.
In Kuiper, the Ontario proceeding, the Plaintiffs moved to certify a class of all persons in Canada who had a Cook IVC filter placed. The Plaintiffs claimed: pecuniary and special damages of $500,000 for each person who had a Cook IVC filter placed; $100,000 for each claimant under the Family Law Act or similar legislation; and punitive damages of $20 million; a total estimated liability of more than $11.5 billion. On the motion, the Plaintiffs, represented by a consortium of Plaintiff firms, advanced two principal negligence claims, namely: that Cook’s IVC filters were unreasonably dangerous and defective in design; and that Cook did not provide adequate warnings so as to allow the IVC filters to be used safely.
Ultimately, the motion judge held that the Plaintiffs failed to plead the material facts necessary to constitute a reasonable cause of action for design negligence, which defect was plain and obvious, and thus failed to satisfy section 5(1)(a) of the Class Proceedings Act, 1992 (“CPA”). The motion judge further held that the Plaintiffs failed to adduce any evidence to establish that there were genuine common issues arising from any of the alleged design defects, and thus failed to satisfy section 5(1)(c) of the CPA. These findings were upheld on appeal to the Divisional Court, which Court certified the action on a limited set of issues regarding negligent failure to warn.
In the result, what was a $11.5 billion proposed class action alleging all manner of design defect against Cook’s IVC filters was reduced to a class action on the narrow issue of whether Cook failed to warn physicians of certain risks associated with its IVC filters. Cook denies these allegations and will continue to defend the now-certified proceeding.
