Harrington v. Dow Corning Corporation – The First Certified Class Action in British Columbia
The Origin of Class Action Lawsuits
Class action lawsuits have existed in the legal system, in some form or fashion, for hundreds of years. Appearing for the first time in England in the 13th century and known as group litigation, the common issue in those cases typically addressed some action that broke a rule or guideline established by a village, town, or parish and affected several people. The strategy of group litigation was effective, especially in that time, as the reality of limited means of transportation and communication made handling individual cases more difficult.
Due to changes in the English legal system, group litigation cases decreased significantly in the 1800s. As they declined in England, however, the United States continued to utilize them and enacted rules and legislation to define the practice area. In the 1960s and 1970s class action lawsuits played a critical role in the civil rights movement in the United States. In fact, one of the most famous class action lawsuits in the United States was Brown v. Board of Education. This case served to overturn the 1896 Supreme Court ruling that legalized the use of “separate but equal” facilities for African-Americans as defined by state statutes. The class in the case consisted of plaintiffs from five states alleging the practice was a violation of the Equal Protection Clause. They were successful, and Brown v. Board of Education was decided by the Supreme Court in 1954, serving to create a path for public school integration.
Canadian Class Action History
Canada was slower to adopt the use of the modern “class action”. While representative actions were available in Canada from its inception, the rules were ill-defined and rarely used for most of the 20th century. This began to change in the 1980s as provinces began to adopt class action legislation. The first Canadian province to enact class action legislation was Québec in 1978. Ontario and British Columbia followed in the 1990s and the early 2000s saw Saskatchewan, Newfoundland, Manitoba, Alberta, New Brunswick, and Nova Scotia do the same. Also, beginning with a trilogy of cases in 2001, the Supreme Court of Canada affirmed the important purposes served by class proceedings and commented on their growing role in Canada: Western Canadian Shopping Centres Inc. v. Dutton, Hollick v. Toronto (City), and Rumley v. British Columbia.
Following these decisions, courts have adopted the view that class action litigation is critical because it provides individuals, who would not otherwise be able to pursue a lawsuit because of economic or social obstacles, a path towards justice. Class action litigation in Canada also serves to more efficiently handle a large number of cases in one proceeding. Most importantly, perhaps, class action litigation can serve as a catalyst for change in instances of systemic injustice and corporate wrongdoing.
First Certified Class Action in B.C. – Harrington v. Dow Corning Corporation
In 1995, British Columbia passed the Class Proceedings Act. On the day the act came into effect, lawyers Deborah A. Acheson, Q.C., David Klein, Mark R. Steven, and K. Whitley filed Harrington v. Dow Corning Corporation.
The case concerned silicone breast implants. Silicone, a synthetic polymer, was used in breast augmentation surgeries in implant shells and the gel filling they contained starting in the 1960s. Manufacturers began mass producing silicone implants as the demand for breast augmentation surgeries increased significantly in the 1970s. Manufacturers purported the silicone implants to be safe, and the primary risk of injury was related to rupturing of the implants or local complications. Warnings about these risks were included by the manufacturers in the package inserts provided to medical professionals. Manufacturers claimed there was no reliable scientific evidence to support claims of a relationship between breast implants and either classic or atypical system disease.
Starting in the 1980s, however, growing concern mounted around silicone breast implants. There was a fear that leaking implants may cause serious harm. In 1992, the United States Food and Drug Administration placed a moratorium on the use of silicone breast implants. In the early 1990s, Health Canada raised concerns about the safety of silicone breast implants after thousands of women became sick after receiving breast implants containing silicone gel. The reports were so concerning, three decades after they were first approved, silicone breast implants were pulled off the Canadian and U.S. markets by their manufacturers in 1992. Throughout the early 1990s, the use of breast implants continued to be restricted.
Extensive medical and scientific research conducted along with key clinical studies found that silicone gel breast implants were not the cause of breast cancer or any other disease. In the early 2000s, two breast implant manufacturers touted the safety of the newer generation of cohesive gel breast implants to a panel of experts at the Health Canada public forum in Ottawa. These new implants had a thicker shell that was far less likely to rupture and more cohesive internal gel which was less likely to leak. They requested that the new silicone breast implants be approved for use in Canada. This resulted in silicone gel implants being reintroduced first in Canada and later in the United States in 2006.
The case was certified as a class proceeding on April 11, 1996, under the Class Proceedings Act of 1995. The class action was certified against specific manufacturers of breast implants, including Dow Corning, Bristol-Myers Squibb Co., 3M Co., Baxter International Inc., and other related companies. Prior to this case, class actions against breast implant manufacturers had been certified in other provinces, including Quebec and Ontario.
The Long Road to Justice
After certification of the case, the parties worked to settle the case however it would be some years before class members would see the benefits.
Three years after the case was filed, the Supreme Court of British Columbia approved a settlement reached between against defendant Dow Corning in February of 1999. They were forced to pay $25,126,797.94 by annual installments. They were responsible for approximately 50% of the breast implants on the market.
However, Dow Corning filed for bankruptcy protection under Chapter 11 of the U.S. bankruptcy code. The company claimed it was unable to contribute to the breast implant litigation settlement fund while continuing to mount a legal defence against the ongoing product liability claims. It had been named as a defendant in over 19,000 cases in the United States alone. Dow Corning’s bankruptcy reorganization was under appeal in the United States for several years, delaying settlement for the victims in British Columbia.
A lengthy bankruptcy and appeal process further delayed the disbursement of funds to the injured women. Finally, in 2004, the appeal process ended and June 1, 2004, was set as the date Dow Corning’s bankruptcy reorganization plan became effective. Class members had until February 1, 2005, to submit their claims under the Dow Corning/British Columbia and Other Provinces Breast Implant Litigation Settlement agreement.
The other defendants in the case, Bristol-Myers Squibb, Baxter Healthcare and 3M, finalized their settlement agreement in British Columbia for up to $4.3 million. That settlement was approved by the Supreme Court in British Columbia on August 5, 2005.
Both settlements were paid to an independent claims administrator who was tasked with the disbursement of funds to the class members. The settlement sought to compensate victims based on injuries like the number of implant surgeries, the number of times their implants had been removed, instances of rupturing, and instances of other local complications like hardening, scarring, and deformities. A formula was established that would evaluate each individual claim based on key factors like their age when symptoms occurred, their injuries and damages, and their level of disability. An individual’s compensation amount was determined by proof of recognized medical conditions.