Defendant Delay Tactics

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Those of you who follow developments our web site will know that we were recently successful in having two of our medical products cases certified as class actions: Zimmer Hip Implants and Hormone Replacement Therapy. Well, the defendants in each of these cases have appealed the certification. To put this into perspective, it’s important to know that every British Columbia certification application involving personal injury from a medical product has been granted and none have been overturned on appeal. So, one might reasonably ask why a defendant that has little to no chance of success would file an appeal. The unfortunate answer is that there is almost nothing for them to lose in stringing out the case for the one to two years that it will take for the appeal to be heard and disposed of. The only cost is what they have to pay to their lawyers, which is insignificant compared to the savings in delaying a settlement or judgment. In Ontario, a defendant who appeals certification must first obtain leave to appeal, and because of Ontario’s loser pays rule, an unsuccessful defendant will have to pay the other side costs that can run into the hundreds of thousands of dollars. It doesn’t completely eliminate the problem but it does go a long way to streamlining these already cumbersome cases. A strong case can be made for British Columbia and other provinces to adopt the Ontario approach.

2 Comments

  • Helen Stahlke says:

    I’m trying to find the questionaire for the hormone therapy. Where is it located?