product liability automotive

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1 product liability McMillan has a specialized Product Liability Group that operates within our larger business litigation practice. Our Product Liability Group has achieved international recognition for their skill and expertise in defending product liability suits and class actions. Our expertise has been recognized in Best Lawyers, The World s Leading Product Liability Lawyers, Lexpert, the Practical Law Company s Life Sciences Handbook, International Who s Who of Life Sciences Lawyers and International Who s Who of Business Lawyers. Our commitment to professional excellence, client focus, practical and efficient legal assistance and responsible business practices ensure that our clients receive cost-effective legal services that meet and exceed their expectations. McMillan lawyers have consistently been named as product liability and class action defence specialists who are at the top in their fields. Our members have been invited to speak at leading industry and legal association conferences and meetings. We have written extensively on issues relating to product law and regulation, trial advocacy, electronic discovery, product litigation and class action certification, settlement, strategy and procedure. The co-chairs of the Product Liability Group, Scott Maidment and Teresa Dufort, are co-authors of Product Liability; Canadian Law and Practice, the leading comprehensive looseleaf service on product liability litigation. McMillan s unparalleled strength and depth in this area has been recognized by the world s leading global manufacturers and distributors, who regularly retain us to defend their products and their brands. McMillan s lawyers act as national counsel and prime Canadian counsel for Canadian product liability matters for a number of large global manufacturers of consumer products. Our team has extensive experience with product liability and class action issues as they relate to medical devices and have appeared in such class action proceedings in Ontario, Saskatchewan and British Columbia. In addition to providing legal representation in litigation and arbitration, our lawyers counsel and advise companies on regulatory issues, advise clients on risk assessment and management, and counsel clients in preparing for and managing product recalls. Our expertise is as follows: automotive Our firm is at the forefront of automotive product liability litigation in Canada. We are national defence counsel to some of the world s leading automotive companies in product liability litigation. We represent foreign manufacturers, Canadian distributors and dealers, major part suppliers (Tier 1 and Tier 2) and aftermarket suppliers McMillan LLP mcmillan.ca 0210

2 of automotive products. We have extensive experience defending warranty claims on behalf of automotive distributors. Our capability in these cases is enhanced by the unparalleled depth and scope of our automotive business practice. Our lawyers are regularly retained to defend companies in individual personal injury product liability lawsuits. We also have extensive experience handling class actions for the automotive industry on everything from pricing, to allegedly defective components to misrepresentations regarding vehicle performance. we understand automotive products We know the industry and its players, AND we understand automotive products their design and regulatory evolution, the underlying technology and the physics of occupant and vehicle movement. We regularly defend claims involving air bags, braking systems, seatbelts, stability control systems, steering systems and crashworthiness. We have an informed understanding of the issues relating to the inspection of motor vehicles and their systems for purposes of product liability defence, including related spoliation issues. We have an extensive knowledge of Motor Vehicle Safety Standards in both Canada and the U.S. We can also advise on the differences in jurisdiction and practice as between Transport Canada and the NHTSA when it comes to regulatory non-compliance and defect issues. Defending automotive companies in Canadian litigation often means defending a foreign company. Our product liability lawyers have extensive experience dealing with issues that are specific to the defence of foreign manufacturers: foreign service of process, jurisdiction, production of foreign documents, protection of confidential business information and the preparation of foreign witnesses. We have a significant automotive regulatory practice and liaise frequently with leading U.S. counsel on regulatory issues of interest to automotive manufacturers on both sides of the border. We also liaise extensively with leading U.S. defence counsel on expert witnesses, discovery issues, developments in U.S. law and other major defence issues that can have an impact in Canada. medical devices Product liability litigation is a substantial area of risk for medical device manufacturers. Class actions and mass torts mean that the skilled defence of product liability claims can be crucial to a manufacturer s financial viability and its continued ability to provide patients with innovative and competitive products. The effective defence of medical device litigation requires specialized expertise. Such claims typically involve complex issues of engineering sciences and medical causation. Defence counsel must have a sound knowledge of these issues to successfully defend medical device claims. Our product liability lawyers have developed this expertise through years of working closely with leading medical device manufacturers in defending their product liability claims. Our firm is particularly adept when it comes to cross-border co-ordination, an increasingly important skill set when defending complex medical device litigation, particularly in the area of class actions and mass torts. Our product liability team also maintains an extensive network of professionals to provide support and expert evidence in medical technology cases. McMillan LLP mcmillan.ca 2

3 pharmaceuticals Product liability claims against drug manufacturers are on the rise in Canada. Pharmaceutical companies are increasingly subject to product liability class actions and mass torts. Companies involved in such claims face heightened media and shareholder scrutiny. Our product liability lawyers have extensive experience working with pharmaceutical companies in this challenging legal environment. Our reputation as one of Canada s leading product liability defence firms is built in part upon our experience in defending leading pharmaceutical companies in complex product litigation. The effective defence of pharmaceutical product liability claims demands specialized expertise. Such claims typically involve complex issues of medical causation. Defence counsel must also have a sound knowledge of business practices in the pharmaceutical industry and the intense regulatory environment in which pharmaceutical companies operate. Our many years of experience in working with pharmaceutical companies has furnished our lawyers with the necessary specialist expertise. Our firm is particularly adept when it comes to cross-border co-ordination, an increasingly important skill set when defending complex pharmaceutical litigation, particularly in the area of class actions and mass torts. On a daily basis our lawyers are involved in defending pharmaceutical claims in parallel with ongoing civil and regulatory proceedings in other jurisdictions. Our product liability team also maintains an extensive network of academics, clinicians and consultants to provide support and expert evidence in pharmaceutical cases. construction and industrial equipment Defending product liability cases involving construction materials and industrial equipment requires an understanding of the complex settings in which these products are generally used. Our capability in defending construction material cases is enhanced by the expertise of our construction litigation group which has expertise acting for owners, contractors and consultants on complex construction projects. When it comes to defending industrial equipment cases, we understand the role that environment, operator and machine can play in developing a successful defence. Some of the world s largest industrial equipment manufacturers have turned to us for help in defending their products in complex litigation and inquests. recreational products If you are a manufacturer, distributor or retailer of recreational products, our lawyers can advise you on a wide range of product liability issues. These include what regulatory requirements recreational products have to meet, consumer instructions and warnings, limitation on liability clauses and product recalls. We also have many years of experience defending hundreds of product liability personal injury lawsuits involving everything from ATVs to bicycles to swimming pools. Our lawyers are frequently consulted by U.S. and European counsel regarding the design, testing and labelling requirements for recreational products as well as on reporting obligations to Health Canada and Transport Canada in the event of regulatory non-compliance. McMillan LLP mcmillan.ca 3

4 We understand that the effective defence of recreational products requires an understanding of the interaction of environment, user and product and the important role played by each when accidents occur. We understand the engineering and the science that relate to product design and warnings. We have worked with many of the leading experts in these key areas. Our lawyers have the knowledge and experience to defend your products and your brand. juvenile products Product liability claims involving juvenile products raise special challenges. Our many years of experience in handling these cases have taught us that they require careful handling. Our team is well versed in handling such sensitive claims and we understand the substantial risks of juvenile product liability suits, ranging from unfavourable judgments to damage to a company s valuable brand and reputation. Plaintiffs lawyers commonly allege that juvenile product manufacturers put profit before safety. Our lawyers have the expertise required to prove what you already know to be true: when it comes to products for children, without safety there is no profit. Our lawyers know the relevant regulatory frameworks for the manufacture, import and sale of juvenile products in Canada and can provide you with specific advice on technical and testing requirements. food products Product liability litigation involving food is on the rise. Plaintiffs counsel across the United States and Canada have been moving aggressively into this area. As a result, Canadian and American food manufacturers are facing increasingly serious legal risks and increasing vulnerability to class action proceedings. The cornerstone of a defence in any food liability lawsuit is an understanding of the regulations that apply to the manufacturing and distribution process. Our experience includes acting for one of the world s largest food companies in product liability litigation. When food product issues arise, we can assist you with everything from regulatory reporting and recalls, through to the handling of individual consumer complaints and commercial litigation against responsible suppliers. consumer products Product liability claims involving consumer products raise unique problems because of the combination of mass marketing and consumer protection laws. Our lawyers have acted on some of the largest and most complex consumer products cases in Canada. We have defended manufacturers and distributors in class actions alleging misrepresentation, non-disclosure and consumer deception and involving products ranging from vitamins to plumbing products. Our lawyers know the relevant regulatory requirements for the labelling and sale of consumer products in Canada and can provide advice to help you reduce the risk of consumer product claims. American and European counsel regularly look to our lawyers for advice on regulatory requirements and recalls for a wide variety of consumer products. McMillan LLP mcmillan.ca 4

5 recalls and regulatory advice Our lawyers are experts in the regulatory requirements for products sold in Canada. Major corporations regularly seek our advice on specific product regulations. We work closely with our clients in devising strategies to deal effectively with regulatory agencies on difficult compliance issues and recalls. For the manufacturing, importing and selling of products in Canada, our lawyers know the relevant regulatory frameworks and can provide specific advice on technical, testing and licensing requirements. We also understand the unwritten practices and preferences of Canadian regulatory agencies. We have extensive experience dealing with Transport Canada, Health Canada, CSA, and TSSA on product recalls and notifications. Our lawyers are regularly retained to draft regulatory authority notifications, product advisories and recall notices. We are also knowledgeable about French language requirements for these communications in Quebec. American and European counsel frequently rely on us to handle the Canadian aspects of international product recalls. We are familiar with the important differences between Canadian reporting and recall requirements and those in the U.S. and Europe. Our lawyers advice and guidance has been sought on regulatory and recall issues involving a wide spectrum of products including, but not limited to: pharmaceuticals, medical devices, toys, motor vehicles, aftermarket auto products, consumer products and food products. With a critical combination of regulatory and product liability defence experience, we see the potential for mass torts and class actions that comes with product recalls and regulatory issues. We understand where and how these risks can be minimized and can assist you in developing strategies with these risks in mind. We are knowledgeable about access to information laws and how to manage the associated risks that arise from reporting and other communications with regulatory authorities. complex commercial Our product liability lawyers are frequently retained in complex commercial product cases involving multi-million dollar economic loss claims. These cases typically arise where one company sues another alleging that the product was defective or did not perform as promised or expected. We understand the important features of this type of complex product litigation: the impact of warranty and limitation on liability clauses, the special considerations where there is an ongoing business relationship, the use of arbitration and the need for forensic accountants to prove or disprove economic loss. Our capability in these complex cases is enhanced by the depth of our expertise as one of Canada s leading business law firms. product liability class actions a business reality If your company sells or distributes products in Canada, you need to know about Canadian class action litigation. Most Canadian provinces now provide for class proceedings, with procedural regimes similar to that found in the United States Federal Rules of Civil Procedure. McMillan LLP mcmillan.ca 5

6 Like their counterparts south of the border, well-funded Canadian plaintiff class action firms are using these regimes to prosecute substantial claims against some of the largest and most successful companies that offer products in Canada. Canada is fast becoming the land of the copycat class action, where Canadian plaintiffs lawyers watch for class action settlements in the US and then commence similar actions in Canada, in the hope that prompt and rewarding Canadian settlements will soon follow. success based on sound knowledge The successful defence of a complex class action requires more than a good knowledge of the intricacies of class action procedure. It also requires a firm grasp of the legal principles that underlie the claims asserted by the putative class and a sound knowledge of the underlying business and market realities. Our product liability lawyers have successfully represented the world s leading manufacturers in nation-wide product liability class actions. We routinely act as national Canadian defence counsel in multi-jurisdiction class action litigation and work closely with U.S. counsel and European counsel in ensuring consistency and efficiency in the defence of class actions. For more information, contact any of the lawyers listed below: Calgary Michael A. Thackray, Q.C michael.thackray@mcmillan.ca Toronto Teresa Dufort teresa.dufort@mcmillan.ca Montréal Céline Tessier celine.tessier@mcmillan.ca McMillan LLP Calgary Toronto Montréal mcmillan.ca 0210