IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Hoy and Steeds v. Medtronic, |
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2003 BCSC 666 |
Date: 20030429
Docket: M000047
Registry: Vancouver
Between:
James Hoy and Andrew Steeds
Plaintiffs
And
Medtornic, Inc. and
Medtronic of Canada Ltd.
Defendants
Before: The Honourable Madam Justice Kirkpatrick
(In Chambers)
Reasons for Judgment
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Counsel for the Plaintiffs: |
W.K. Branch |
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Counsel for the Defendants: |
H. Poulus, Q.C. |
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Date and Place of Hearing: |
April 23, 2003 |
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Vancouver, B.C. |
[1] This is a certified class action.
[2] These reasons are necessitated by the parties' inability to agree as to an appropriate revised case management plan. The inability to reach agreement is rooted in profoundly different views of the litigation and the issues to be determined at trial. A revised case management plan is required because the parties recognize that there is insufficient time to prepare the case for the trial of the common issues scheduled to commence in September 2003.
POSITIONS OF THE PARTIES
[3] Counsel for the plaintiffs asks the court to set a trial date to commence in September 2004 and to establish deadlines for the completion of the various steps leading up to the trial. Plaintiffs' counsel contend that this litigation is a straightforward products liability case. They say it is less complex than the so‑called "leaky condo" litigation in which case management plans have been set with apparent ease. Plaintiffs' counsel urge the court to adopt the kind of control exhibited in other class action litigation in Ontario – Wilson v. Servier Canada Inc., Court file no. 98‑CV‑158832, Ontario Superior Court of Justice. That litigation, as noted by the case management judge, is burdened by "considerable mistrust and lack of cooperation between counsel such that progress in the litigation is generally seen only through court intervention and orders": [2003] O.J. No. 155 at ¶ 4.
[4] The progress of the litigation at bar has been slow. There were seven motions and one application for leave to appeal before the class proceeding was certified on September 27, 2001. Since then, there have been four motions, an appeal of the certification order, and several case management conferences dealing primarily with the notice program and the thorny issue of particulars. The Court of Appeal has under reserve its decision on the defendants' appeal of the certification order.
[5] Plaintiffs' counsel insist that this litigation raises only four basic issues in respect of the common issues trial, namely, was there negligence:
(a) in the selection of the raw materials used in the manufacture of the subject heart pacemaker leads;
(b) in the manufacture of the leads;
(c) in the testing of the leads; and
(d) in the warnings, or failure to warn, of any alleged defects in the leads.
[6] Plaintiffs' counsel assert that the trial of those issues will not exceed eight weeks. They say that the breadth of the pleadings as they are currently framed ought not to prevent the setting of a trial date because, as the case management plan is executed and the pre‑trial procedures are completed, the issues to be decided at trial will be narrowed and focussed.
[7] To say that counsel for the defendants takes a different view is an understatement. From the outset of this litigation, the defendants have sought further and better particulars of the plaintiffs' claim. Since the proceeding was certified, the defendants have sought particularization of the common issues. On October 25, 2002, I heard the defendants' application for further particulars which, due to time constraints, was confined to the issues of the court's jurisdiction to order particulars in the class action context, res judicata, and pre‑maturity of the defendants' motion. On December 2, 2002, I handed down reasons, the effect of which was to order the plaintiffs to provide particulars. A further hearing is scheduled for May 21, 2003 to determine whether certain particulars must be provided. In my reasons of December 2, I held, at ¶ 53:
It is imperative that between now and the trial date both the parties and the court understand the precise nature of the common issues to be decided. Particulars will lead to precision and clarity in the definition of the common issues, either through pleadings or through a refinement of the common issues, which will in turn aid in the efficient conduct of examinations for discovery and, most importantly, in the preparation of expert reports.
[8] Following that decision, counsel for the plaintiffs consented to an order to provide particulars in respect of the common issues and sub‑issues set out in the certification order. The consent order sets out 13 paragraphs of demanded particulars, each of which contains further demands. The response to the demand for particulars spans 297 paragraphs, some of which are pro forma and others which are duplicated elsewhere in the response. However, many of the responses, certainly a majority of them, are distinct and substantive.
[9] Counsel for the defendants contends that the breadth of the common issues and the vast number of potential issues raised by the particulars necessarily means that the defendants will require adequate time to prepare the case for trial and to properly defend the case at trial. Based on an admittedly crude and inexact analysis of the work to be done in respect of the issues raised by the plaintiffs to date, counsel for the defendants estimates that the trial preparation will consume about 3.7 years and the trial of the defendants' portion of the case will consume 289 trial days, or approximately 58 weeks.
[10] I frankly think that the defendants' prognosis is unduly pessimistic. It hinges on an estimation of 136 issues to be determined at trial. Nevertheless, even if the defendants' estimation of the number of issues and the time required to analyze, prepare, and explore those issues at trial is inaccurate by a half or two‑thirds, there remains a substantial disparity in the parties' respective opinions as to how long and, more importantly, when the trial of the common issues should be set for trial.
[11] I think it is instructive to recall that when the certification order was granted, I acknowledged that it would be necessary to reduce and refine the common issues:
[49] This list of common issues will undoubtedly require further refinement and reduction as the litigation moves forward. The common issues must conform to the pleadings, including particulars. The defendants must know the case they have to meet. The trial judge must know that evidence which is not relevant to particular allegations so that it may be excluded.
[12] As case management judge, I would normally defer to the estimations of counsel as to the time needed to prepare and try the case. They obviously have the more informed opinion as to those matters. However, in this case, confronted with the significantly disparate views of counsel, I consider it necessary to require counsel for the plaintiffs to confirm those common issues and particulars that they intend to pursue at trial. If the issues to be tried are those currently pleaded, or some smaller number, I must know that before I can fix a trial date that bears some relation to the realistic needs of both parties to prepare and try the case. In saying this, I do not mean to be taken that I necessarily accept the defendants' rough estimation. I am mindful, however, that the course of litigation is in the control largely of the litigants, not the court. So long as a party is acting responsibly and within legitimate boundaries (which I believe both parties have been to date), I am reluctant to impose artificial deadlines, especially in complex litigation such as this.
[13] Accordingly, I direct that counsel for the plaintiffs confirm for the court, by reference to the certified common issues and the response to the demand for particulars, those issues that the plaintiffs intend to pursue at trial. In conjunction with that analysis, I ask that plaintiffs' counsel give careful consideration as to the time they expect will be needed to prepare and try those issues.
[14] I ask that plaintiffs' counsel provide their response to the court and counsel for the defendants by May 7, 2003. I ask that counsel for the defendants provide a revised estimate to the court by May 14, 2003. Following receipt of counsels' estimates, I will issue draft a case management plan which will attempt to accommodate the reasonable expectations of the parties. That draft should be reviewed with counsel at either the next case management conference or at the hearing of the motion set for May 21, 2003.
[15] I caution, however, that no case management plan is indelible. At best, it can only be a framework within which the parties can work to move this litigation forward with due dispatch.
“P.A. Kirkpatrick, J.”
The Honourable Madam Justice P.A. Kirkpatrick