Class action lawsuit against British hip resurfacing maker can proceed in Alberta

The Supreme Court of Canada will not hear an appeal from medical equipment firm Smith & Nephew plc, paving the way for a class action lawsuit to proceed in Alberta.

In 2015, the Alberta Court of Queen’s Bench denied an application, from Milana Warner, to certify a lawsuit against London, England-based Smith & Nephew as a class proceeding. The ruling was overturned on appeal. This past Friday, the Supreme Court of Canada announced it dismissed Smith & Nephew’s application for leave to appeal the Alberta Court of Appeal decision, released July 27, 2016.

In 2005, Warner had the Birmingham hip resurfacing system, made by Smith & Nephew, implanted by an orthopaedic surgeon.

“Unfortunately, problems developed which led to removal of the system and a total hip replacement,” Mr. Justice Glen Poelman of the Alberta Court of Queen’s Bench wrote in 2015. About three months after her surgery, Warner “noticed the system beginning to “pop and click'” Justice Poelman added. “A blood test showed elevated metal ion levels.”

Court records indicate Warner was told the levels of cobalt in her system were considered toxic. She filed a lawsuit against Smith & Nephew and applied for certification of her action as a class proceeding.

“Members of the class would be all persons in Canada who have had the defendant’s system implanted,” Justice Poelman wrote. Poelman found that Warner “failed to establish that there is an identifiable class of two or more persons” though he ruled that Warner could pursue an individual action against Smith & Nephew.

In overturning Justice Poelman’s ruling, the province’s appeal court noted, in a divided ruling, that a “a consideration of the merits of the claim itself is neither necessary nor warranted at the certification stage, nor is the certification judge to enter into a weighing of conflicting evidence with respect to the merits of the claim.”

The Alberta Court of Appeal cited case history, including the Supreme Court of Canada ruling, released in 2001, against John Hollick, who wanted to sue the City of Toronto over noise and pollution from the Keele Valley landfill north of the city. Hollick sought to represent 30,000 people living in the area. A motions judge allowed him to pursue the claim in 1997, but that ruling was overturned on appeal.

It was likely, in the complaint involving the Keele Valley landfill, “that some areas were affected more seriously than others, and that some areas were affected at one time while other areas were affected at other times,” Chief Justice of Canada Beverly McLachlin wrote in Hollick.

In determining whether there are common issues among class members, “the representative need not show that everyone in the class shares the same interest in the resolution of the asserted common issue,” Chief Justice McLachlin wrote in Hollick. “There must be some showing, however, that the class is not unnecessarily broad – that is, that the class could not be defined more narrowly without arbitrarily excluding some people who share the same interest in the resolution of the common issue. Where the class could be defined more narrowly, the court should either disallow certification or allow certification on condition that the definition of the class be amended.”

The Hollick ruling established that “any definition of the class may well exclude some potential claimants, and include some who will eventually be shown to have no claim,” the majority of the Alberta Court of Appeal wrote in Warner v Smith & Nephew.