http://vitektmjclassaction.ca/
NOTICE TO ALL PERSONS WHO RECEIVED VITEK TEMPOROMANDIBULAR JOINT
(“TMJ”) IMPLANTS FROM 1983 TO PRESENT IN CANADA (EXCEPT QUEBEC AND
BRITISH COLUMBIA)
CERTIFICATION OF THE VITEK TMJ IMPLANT CLASS ACTION
This Notice may affect your rights. Please read carefully.
THE LAWSUIT
A lawsuit was commenced on December the 13th, 1999, in the Ontario
Superior Court of Justice under the Class Proceedings Act, 1992,
against the Canadian government seeking damages on behalf of all
residents in Canada, who were implanted in Canada with Vitek TMJ
implants from 1983 to present, except those residing in Quebec and
British Columbia. If you are such an individual, then you may be
entitled to compensation if this lawsuit is successful.
The lawsuit alleges that Vitek TMJ implants were imported and
distributed in Canada with the knowledge of Health Canada or with
Health Canada's consent despite its knowledge that such devices posed
serious health dangers and the recipients of those implants suffered
harm.
THE CERTIFICATION ORDER
By Order dated the 5th of September, 2007, the Ontario Superior Court
of Justice certified the lawsuit, Taylor v. The Attorney General of
Canada, Court File No.: 99-CV-181819CP [Toronto] as a class action and
appointed Kathryn Anne Taylor as Representative Plaintiff (“the
Plaintiff”) for the Class.
In certifying this lawsuit as a class action, the Court did not decide
the merits of the claims or defences, whether the lawsuit will be
successful, or what damages may be awarded to the members of the
Class. The Plaintiff will still have to win at trial in order to
obtain compensation for the Class. Further notices will be issued by
the Court as necessary as the lawsuit progresses toward trial.
THE CLASS
The Court ordered that this lawsuit be certified as a class action on
behalf of the following class (collectively the “Class”):
All persons resident in Canada, except those residing in British
Columbia or Quebec who were implanted from 1983 to the present with
temporomandibular joint medical device(s) of the Vitek or Proplast
type, variously known as Vitek or Vitek Proplast or Proplast or
Proplast 1 or Proplast 2 (“Vitek TMJ”) implants, which include but are
not limited to the following:
(i) alloplastic implants of the Proplast proprietary type
including implant sheathing, block Proplast, Proplast interpositional
implants, and Proplast partial total joint replacements;
(ii) Vitek alloplastic implants, being composite of various
materials; and
(iii) alloplastic implants of the Vitek proprietary type including
Vitek implant sheeting, block Vitek, Vitek interpositional implants,
and Vitek partial total joint replacements.
HOW TO BE INCLUDED IN THE CLASS
If you meet the definition of the Class described above, you do not
need to do anything at this stage. However, it is recommended that
you register your desire to participate on the web at
www.vitektmjclassaction.ca,
or by telephone at 1-877-453-8714.
HOW TO BE EXCLUDED FROM THE CLASS
If you wish to be excluded from the Class, you must send by pre-paid
mail or courier written notice signed by you stating that you wish to
opt out of the VItek TMJ Implant Class Action. This written notice
must be post-marked on or before December 31, 2008 (“Opt-Out
Deadline”) to Crawford Class Action Services at the following address:
Vitek TMJ Implant Class Action Claims Administrator
c/o Crawford Class Action Services
Suite 3-505, 133 Weber Street North
Waterloo, Ontario, N2J 3G9
If your written request is not post-marked or received by Crawford
Class Action Services by the Opt-Out Deadline, you will remain a
member of the class and be bound by any judgment ultimately obtained
or court approved settlement that may be reached in this proceeding,
whether favourable or not.
If you wish to opt out of this lawsuit and pursue your claim
individually, please seek independent legal advice before doing so.
Should you choose to opt out, your individual claim may be barred by
the limitation period applicable in your province.
No person may opt out a minor or a mentally incapable person without
permission of the Court after notice to The Children’s Lawyer or the
Public Guardian and Trustee, as appropriate.
RIGHT TO PARTICIPATE
If you do not wish to be a part of the Class, you may still be
entitled to participate in the proceeding. Such participation is
subject to the Court’s approval. You may wish to obtain independent
legal advice with respect to this matter.
FEES AND DISBURSEMENTS
Counsel have entered into a Retainer Agreement with the Plaintiff with
respect to legal fees and disbursements. This Agreement provides that
counsel will not receive payment for their work unless and until a
successful result of the litigation, or a Court-approved settlement,
is obtained. This Retainer Agreement requires the approval of the
Court.
No class member, other than the Plaintiff, can be held responsible for
any legal costs if the trial is unsuccessful. Class members may be
liable for costs of the determination of their own individual claims
if they choose to pursue them after the trial of the common issues.
Counsel request that class members donate whatever they feel is fair
to help pay the expenses of this lawsuit and the trial of the common
issues. Class members will not be reimbursed for their donations
upon the conclusion of this lawsuit, whether successful or not.
Donations may be sent directly to:
Vitek TMJ Implant Class Action Claims Administrator
c/o Crawford Class Action Services
Suite 3-505, 133 Weber Street North
Waterloo, ON N2J 3G9
The Plaintiff has obtained funding from the Class Proceedings Fund.
In the event of a Judgment or settlement in this action, the Class
Proceedings Fund is entitled to lodge a levy against it.
ADDITIONAL INFORMATION
This Notice is a summary of the terms of the certification order. If
there is any conflict between the provisions of this Notice and the
terms of the certification order, the certification order shall
prevail. The certification order may be reviewed at the website
www.vitektmjclassaction.ca.
Any questions about the matters in this Notice should NOT be directed
to the Court, because its administrative structure is not designed to
address this type of inquiry. Further information may be obtained by
calling 1-877-453-8714 or visiting the website at
www.vitektmjclassaction.ca.
Questions for class counsel should be directed by telephone, fax,
email, or in writing to:
Vitek TMJ Implant Class Action
LEGGE & LEGGE
Barristers and Solicitors
800 – 65 St. Clair Avenue East
Toronto, Ontario M4T 2Y3
Tel: 416-923-1776
Fax: 416-925-5344
Email :
This Notice is approved and distributed by Order of the Ontario
Superior Court of Justice.
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