Ontario Civil

Civil Procedure

Defendant failed to show why additional medical records relevant to issues on certification

Plaintiff commenced class action on behalf of all persons who were implanted in Canada with defendant’s metal-on-metal hip products. Plaintiff had filed six affidavits, including his personal affidavit describing his experiences with defendant’s metal-on-metal hip implants. Attached to personal affidavit were six pages of medical records that were generated at time of his third surgery that also included brief synopsis of plaintiff’s first two surgeries and his experience with implants that were installed. In response to request from defendant, plaintiff had provided some additional medical information such as product code labels for hip implant components that were allegedly used in plaintiff’s first and second hip surgeries. Certification motion was scheduled to proceed in September 2015. Defendant had filed motion for summary judgment asking that action be dismissed in its entirety. Defendant brought motion for all of plaintiff’s medical records relating to his hips, his hip surgeries, and their outcomes and consequences. Motion dismissed. Bald assertions aside, defendant failed to show how or why additional medical records would assist the court or were in any way relevant to issues on certification. Dismissal of motion was without prejudice to defendant’s right to pursue records again on cross-examination. If they were refused and if defendant could show they were indeed relevant to certification, matter could be revisited on proper refusals motion.

Dine v. Biomet Inc. (Apr. 15, 2015, Ont. S.C.J., Edward P. Belobaba J., File No. CV-13-490112-CP) 252 A.C.W.S. (3d) 652.

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