Waddell seeks leave to appeal in proposed class-action lawsuit

The plaintiffs involved in a proposed class action that alleges negligence manufacture and a failure to warn of defective implantable cardiac defibrillators will request leave to appeal a recent court decision that denied approval of a third-party funding agreement, says their co-counsel, Toronto class-action lawyer Margaret Waddell.

“We’re disappointed with the result and we’re going to seek leave to appeal to see whether we can get leave to take it up to a higher level of court,” she says. 

The plaintiffs in the proposed class action seek damages for alleged negligence in the development, manufacture and distribution of several models of implantable cardiac defibrillators that can be subject to rapid, premature battery depletion and for failure to warn of the problem when it became known, the decision explains.

8,000 members of proposed class

Based on estimates provided by the Canadian Heart Rhythm Society, plaintiff counsel believes that there are more than 8,000 members of the proposed patient class; there’s also a corresponding class of family members making derivative claims, it says.

The Ontario Superior Court of Justice decision says the plaintiffs desire a third-party funding agreement to: cover the costs associated with retaining experts (expected to be in the hundreds of thousands of dollars); provide funding to pay for the expense of giving notice to class members of the various steps in the action, including certification; protect them from potentially devastating adverse costs awards; and enable class counsel access to the financial resources needed to litigate effectively and to balance the disparity in resources between the parties.

Waddell, a partner with Waddell Phillips Professional Corporation,and her co-counsel went to the court this past summer asking for approval of the litigation funding agreement between the plaintiffs, class counsel and Bentham IMF Capital Inc. The agreement included a hybrid retainer that combines a partial contingency fee with a fee-for-services retainer.

‘A work in progress’

The decision not to approve it, handed down by Justice Paul M. Perell, said “the role of third-party funding in the administration of justice remains a work in progress” and that he would not approve the litigation funding agreement as presented “in its current state.”

Specifically, he declined to pre-approve the contingency percentage, beyond the 10 per cent that the Class Proceedings Fund gets.

Perell suggested various changes to the agreement and if made, he indicated he would approve a revised agreement if one were submitted to the court within 60 days.

Waddell says the issue around the litigation funding won’t stall the case and notes the certification date hearing is scheduled to take place in about a year.

“We’ve got time to get this sorted out, and in the meantime, we will continue pulling together our certification record, getting our experts’ reports and carry on,” she says.