Taylor v. Wright Medical Technology Canada Ltd. et al., 2014 NSSC 349

• Judge: Wood, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: August 11, 2014
• Jurisdiction: Nova Scotia
• Citations: 2014 NSSC 349;(2014), 350 N.S.R.(2d) 237 (SC)

Taylor v. Wright Medical Tech. (2014), 350 N.S.R.(2d) 237 (SC);

    1105 A.P.R. 237

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. SE.042

Ken Taylor (plaintiff) v. Wright Medical Technology Canada Ltd., Wright Medical Technology, Inc., and Wright Medical Group, Inc. (defendant)

(Hfx. No. 355381; 2014 NSSC 349)

Indexed As: Taylor v. Wright Medical Technology Canada Ltd. et al.

Nova Scotia Supreme Court

Wood, J.

September 22, 2014.

Summary:

Taylor had his left hip replaced in June 2007. The surgeon used a Wright Profemur Hip Implant System (WPHIS). In September 2009, Taylor underwent revision surgery to his left hip as a result of the fracture of one component of the WPHIS. He brought an action against the defendants, alleging that they were negligent in the design and manufacture of the WPHIS. He moved to have it certified as a class proceeding under the Class Proceedings Act.

The Nova Scotia Supreme Court, in a decision reported at (2014), 342 N.S.R.(2d) 103; 1083 A.P.R. 103, granted the motion. The parties were invited to make written submissions on costs.

The Nova Scotia Supreme Court awarded Taylor lump sum costs of $9,000 along with disbursements totalling $14,527.54.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - Taylor sued the defendants, alleging that they were negligent in the design and manufacture of an implant system used in hip replacement surgeries - He was successful on a motion to have the action certified as a class proceeding - Taylor argued that the court should exercise its discretion and award a lump sum costs award of $40,000 rather than apply the Tariff calculations found in Civil Procedure Rule 77 - His rationale was that costs should represent a substantial contribution to a party's actual legal expenses, which in his case amounted to $150,000 - The Nova Scotia Supreme Court had two problems with Wright's position - First, there was no evidence of his actual legal expenses, without which the court had no basis to assess their reasonableness - Second, it was questionable whether the substantial indemnity principle applied to interim cost awards - The certification hearing lasted one day in this case - In addition, an expert witness was cross-examined out of court and his examination was completed in a half day - The Tariff C calculation would fix costs at a maximum of $3,000 - Given the complexity of the issues and the length of the hearing, a lump sum award of $9,000 was appropriate - See paragraphs 4 to 11.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - Taylor sued the defendants, alleging that they were negligent in the design and manufacture of an implant system used in hip replacement surgeries - He was successful on a motion to have the action certified as a class proceeding - Taylor applied to have the following costs paid by the defendants: (1) $2,122.32 for airfare for his counsel to consult with an expert in Arizona; (2) $236.06 for a hotel for counsel in Arizona; and (3) $426.48 for a hotel for counsel to attend a consultation with an other expert in Montreal - The Nova Scotia Supreme Court stated "... I disallow any costs associated with counsel travelling to consult with experts. Telephone and, if desired, video conferences should be sufficient in order to allow counsel to discuss the case and the potential expert opinion. In addition, ... the purpose of the consultation was to 'determine the validity of the claim' which goes beyond the requirements for certification and deals with the ultimate merits of the Plaintiff's action." - See paragraph 12.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - Taylor sued the defendants, alleging that they were negligent in the design and manufacture of an implant system used in hip replacement surgeries - He was successful on a motion to have the action certified as a class proceeding - Taylor applied to have the defendants pay him $4,150 for fees paid to his expert, Dr. David Zukor - Zukor spent approximately four hours reviewing literature with respect to failure of hip replacement devices, Taylor's medical records, and preparing an expert report - His invoice for that work, at an hourly rate of $600, was $2,200 - The remaining $1,950 was for the three hours and 15 minutes that he spent preparing for and participating in his out-of-court examination - The Nova Scotia Supreme Court ordered the defendants to pay the $4,150 forthwith - Although some portion of Zukor's work undoubtedly related to the substantive merits of Taylor's claim, most of it was reasonable and related directly to the certification motion - See paragraph 13.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - Taylor sued the defendants, alleging that they were negligent in the design and manufacture of an implant system used in hip replacement surgeries - He was successful on a motion to have the action certified as a class proceeding - Taylor applied to have the defendants pay him $46,860 for fees paid to two experts (Komm and Knapp), both of whom worked at an hourly rate of $275 - The Nova Scotia Supreme Court found that the experts' fee was excessive given that the vast majority of their work related to a literature review which resulted in a report that simply summarized existing literature and data - In addition, Taylor's counsel indicated that he consulted with the experts in order to determine the validity of Taylor's claim and to understand the science and mechanics involved in the failure of hip transplants - This work related to the substantive merits of the action and was not specific to the certification motion - Costs had to be limited to those expenses directly related to the certification motion - The court awarded Taylor $10,000 for the experts' expenses - See paragraphs 14 to 16.

Practice - Topic 7085

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Expert witness fees - [See third and fourth Practice - Topic 210.3 ].

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - [See first Practice - Topic 210.3 ].

Practice - Topic 7137

Costs - Party and party costs - Disbursements - Travelling expenses - Counsel - [See second Practice - Topic 210.3 ].

Practice - Topic 7141

Costs - Party and party costs - Disbursements - Cost of expert advice - [See second, third and fourth Practice - Topic 210.3 ].

Cases Noticed:

Morrison Estate v. Nova Scotia (Attorney General) (2012), 323 N.S.R.(2d) 37; 1025 A.P.R. 37; 2012 NSSC 386, refd to. [para. 10].

MacQueen et al. v. Nova Scotia et al., [2012] N.S.R.(2d) Uned. 346; 2012 NSSC 461, refd to. [para. 10].

Counsel:

Raymond F. Wagner, Q.C., and Michael Dull, for the plaintiff;

Scott Norton, Q.C., and Scott Campbell, for the defendants.

This matter was heard by way of written submissions on August 11, 2014, before Wood, J., of the Nova Scotia Supreme Court, who delivered the following decision on costs on September 22, 2014.