Serhan v. Johnson and Johnson: A case comment

• Author(s) / Creator(s)

  • Yahya, Moin A.
  • Brown, Russell

• Introduction: The recent pronouncement of Cullity J. of the Ontario Superior Court granting an order for class certification in Serhan v. Johnson & Johnson is the latest in a series of decisions since the Supreme Court of Canada expanded tort law's boundaries in Winnipeg Condominium Corp. No. 36 v. Bird Construction Co. to embrace claims arising from a defect in (as opposed to damage caused by) a product or building structure. In Serhan, the defendant, Johnson & Johnson, manufactured and marketed a blood glucose monitoring system, which consisted of meters (\"SureStep meters\") and \"Strips\" to be used when testing blood. In some cases, the SureStep meters allegedly failed to register the existence of high glucose levels, and instead displayed either an erroneously low reading or an error message. While Johnson & Johnson knew of the problem, it is alleged to have refrained from taking corrective measures until various U.S. agencies, including the Department of Justice, the FBI and the FDA, had commenced investigating consumer complaints. Ultimately, it paid a fine of over US$29 million and was forced to pay settlements initiated by whistleblower employees in its Canadian division. As we will describe in this comment, however, Serhan represents not an application of Winnipeg Condominium, but an extension of its ambit (although perhaps inadvertently so, since, curiously, Winnipeg Condominium was not cited by Cullity J.). For this reason, Serhan is a troubling addition to the growing corpus of post- Winnipeg Condominium case law in the vexed area of products liability which, as John Fleming observed over 25 years ago, and as Stephen Waddams has more recently affirmed, \"is not yet a coherent concept of our law.\" Further complicating matters in Serhan was the litigants' \"scattergun\" pleading of multiple causes of action and remedial demands which, as a strategy, has characterized the massive tobacco litigation that has recently and dramatically shaped the landscape of U.S. products liability litigation.

• Date created

  2005

• Subjects / Keywords

  • Canada
  • Class Actions (Civil Procedure)--Canada
  • Design Defects
  • Certification--Canada

• Type of Item

  Article (Published)

• DOI

  https://doi.org/10.7939/R30K26R8P

• License

  © 2005 Russell Brown et al. This version of this article is open access and can be downloaded and shared. The original author(s) and source must be cited.