SureStep Class Action (Serhan v. Johnson & Johnson, LifeScan Canada Ltd. and LifeScan Inc.)
This class proceeding is brought on behalf of diabetics who purchased medical devices which are alleged to have been dangerously defective. The Defendants to the action are Johnson & Johnson, LifeScan Inc. and LifeScan Canada Ltd. The Plaintiffs claim that the Defendants manufactured, advertised, and sold SureStep blood glucose monitoring devices, knowing that they produced grossly inaccurate results and, therefore, put diabetics’ health at risk.
In December 2000, LifeScan Inc. pleaded guilty to various U.S. federal charges and paid $60 million U.S. in criminal and civil fines for selling the SureStep meters and test strips and for submitting false information about the defects to the FDA. The Plaintiffs allege that, in conspiring to sell the devices in Canada, the Defendants profited wrongfully and should not be permitted to retain their revenue in good conscience. A similar class action brought on behalf of SureStep users in the U.S. settled when the Defendants in that action agreed to pay class members $45 million U.S. That settlement does not affect Canadian class members.
The issues to be tried in this class proceeding concern whether the Defendants are required to pay to Canadian class members the revenues gained in connection with the devices. Therefore, the action represents persons in Canada (except certain provinces) who acquired the specified SureStep meters or test strips. The exact class definition and claims are detailed in the Certification Order and the Amended Statement of Claim, both accessible through the “Documents” link.
The law firms of Sutts, Strosberg LLP and Koskie Minsky LLP are acting together to prosecute this action.
April 29, 2011
The settlement of this class action has been approved by the Ontario, Quebec and British Columbia courts. The Ontario order, initially made on December 15, 2010 was amended on April 29, 2011 so that it would be consistent with the orders in Quebec and British Columbia. [Links are no longer active]
• The Ontario court’s reasons and approval order may be viewed at the following links (Reasons, Dec 15 Order, Apr 29 Order).
• The Quebec court’s judgment on settlement approval, including its reasons, may be viewed at the following links (Judgment in English, Judgment in French).
• The British Columbia court’s settlement approval order may be viewed at the following link (Order).
April 6, 2011
The Quebec court has approved the settlement of this class action. The court’s reasons and approval order will be available shortly under the “Documents” link.
March 25, 2011
The settlement approval hearing in Quebec was held on February 10, 2011, but the Quebec court has not yet released its decision. The settlement approval hearing in British Columbia was postponed pending the decision of the Quebec court. The new date for the settlement approval hearing in British Columbia will be set once the decision of the Quebec court is released.
January 17, 2011
The Ontario court approved the settlement of this class action on December 15, 2010. The court’s reasons and the approval order may be viewed at the following links (Reasons, Order). The hearing to approve the settlement in British Columbia is schedule for January 14, 2011. The hearing to approve the settlement in Quebec (previously scheduled for January 13, 2011) has been postponed to February 10, 2011.
November 17, 2010
A tentative settlement has been reached in this matter and is subject to court approval. The details of the proposed settlement and the procedure for objection or opting-out (in the case of persons from Quebec) is set out in the Notice of Settlement Approval Hearing, which may be reviewed here. Pour consulter ce document en français, cliquez ici.
The parties will appear before the courts of Ontario, Quebec and British Columbia as follows to ask the court to approve the proposed settlement and to fix the fees, disbursements and taxes to be paid to class counsel:
- The Ontario Superior Court of Justice at the Court House located at Osgoode Hall, Courtroom 4, 130 Queen Street West, Toronto, Ontario on December 15, 2010 at 10:00 a.m.
- The Quebec Superior Court at the Courthouse, 300, boulevard Jean-Lesage, Québec, Québec on January 13, 2011
- The British Columbia Supreme Court at the Court House located at 800 Smithe Street, Vancouver, B.C. on January 14, 2011 at 10:00 a.m.
Class Members may attend these hearings in person or send a representative and may ask to make submissions regarding the proposed settlement. Any Class Members who wish to object should provide written notice of their objection, to be received before the applicable hearing date, by prepaid mail or courier to: McCarthy Tétrault LLP, Attention: Caroline Zayid, P.O. Box 48, Suite 5300, Toronto Dominion Bank Tower, Toronto, ON M5K 1E6; or by email to: firstname.lastname@example.org; or by fax to: 416 868-0673.
April 30, 2010
The common issues trial will not proceed as scheduled to permit the parties to discuss settlement.
January 21, 2010
A timetable was reached at the case conference on November 25, 2008 for the remaining steps leading to the common issues trial which is scheduled for the Spring of 2010. Preparation for trial is ongoing. Documentary production and oral examinations have occurred.
August 31, 2007
The deadline for opting out of the class action expired.
April 12, 2007
Application for leave to appeal to the Supreme Court of Canada was dismissed.
October 16, 2006
Application for Leave to Appeal to the Court of Appeal for Ontario was dismissed.
June 15, 2006
The Defendants’ appeal to the Divisional Court of the certification order was dismissed.
July 6, 2004
This action was certified as a class proceeding by order of the Honourable Mr. Justice Cullity dated July 6, 2004.
- April 29, 2011
News Releases and Reports
- April 28, 2011 Order dated April 29, 2011
- April 3, 2011 Jugement sur requête pour faire approuver les honoraires des procureurs des requérants
- April 3, 2011 Judgment
- April 3, 2011 Jugement
- January 13, 2011 British Columbia Judgment
- January 6, 2011 Reasons for Decision
- December 14, 2010 Settlement Approval Order
- June 14, 2006 Reasons of the Divisional Court
- July 5, 2004 Certification Reasons
- July 5, 2004 Certification Order
- February 13, 2004 Statement of Defence
- May 5, 2003 Amended Statement of Claim
What is a class action?
A class action is a lawsuit which provides a method for a large group of people with common claims to join together to advance one large claim. Class actions are a more efficient and cost-effective way for groups of people with common claims to gain access to the legal system and seek justice.
What does certification mean?
In order for an action to proceed as a class action, the court must determine whether it is appropriate for the case to be treated as a class action. Some of the factors the courts consider are the extent to which the claims of the class members are common, and whether a class action is preferable to other methods (such as individual actions) of advancing the issues. The decision as to whether a class action should be certified takes place at a certification hearing and is decided by a judge. If certified, a representative plaintiff will advance the action on behalf of all of the class members.
How do I know if I am a Class Member?
The certification order will always contain a description of who is a class member. We post the certification orders in our actions so that you can review them. You do not need to “sign up” to become involved in a class action. If you are included in the class description, you are automatically a class member who will be affected by the outcome of the class action unless you decide to “opt out”.
Are Class Members notified of the certification of the class proceeding?
Yes. After the claim has been certified, the court will authorize notice to be given to the members of the class.
Can I opt out of a class action and pursue independent legal action?
Yes. When a class action is certified, class members are always given an opportunity to opt out of the action. A deadline is imposed for opting out. If you do not opt out by the given deadline, class members will be bound by the outcome of the class action, whether it is successful or unsuccessful. If you opt out, you will not receive any benefit if the action is successful.
Will there be any cost to class members for legal fees?
Typically, class actions are handled on a contingency fee basis, which means that the class action lawyers will be paid only if the class action is successful at trial or settled. In that case, class counsel fees may be paid by the defendants or out of the settlement or judgment proceeds as approved by the court. In addition, the plaintiff may seek funding assistance from the Class Proceeding Fund which, if funding is granted, may provide funding for disbursements.
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