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CERTIFICATION MOTION RECORD (Returnable June 22, 2015)

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CERTIFICATION MOTION RECORD (Returnable June 22, 2015) Court File No. 13-CV-490112-00CP ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: STEVEN DALTON DINE Plaintiff - and - BIOMET, INC., BIOMET ORTHOPEDICS, LLC, BIOMET MANUFACTURING CORP., BIOMET US RECONSTRUCTION, LLC AND BIOMET CANADA INC. Defendants Proceedings under the Class Proceedings Act, 1992 CERTIFICATION MOTION RECORD (returnable June 22, 2015) KOSKIE MINSICY LLP 900-20 Queen St. West Toronto ON M5H 3R3 Jonathan Ptak LSUC#: 45773F Tel: (416) 595-2149/Fax: (416) 204-2903 Garth Myers LSUC#: 62307G Tel: (416) 595-2102/Fax: (416) 977-3316 STEVENSONS LLP 202-15 Toronto Street Toronto ON M5C 2E3 James M. Newland LSUC#: 23502M Tel: (416) 599-7900/Fax: (416) 599-7910 KLEIN LYONS 5600-100 King St. West Toronto ON M5X 1C9 Doug Lennox LSUC#: 40540A Tel: (416) 506-1944/Fax: (416) 506-0601 Lawyers for the Plaintiff TO: DAVIES WARD PHILLIPS & VINEBERG LLP 155 Wellington Street West Toronto ON M5V 3J7 Kent E. Thomson Derek Ricci Kristin Jeffrey Tel: (416) 863-5566 Fax: (416) 863-0871 Lawyers for the Defendants TABLE OF CONTENTS Tab Description Page 1. Notice of Motion dated August 29, 2014 1 2. Affidavit of Steven Dalton Dine sworn August 28, 2014 7 Exhibit A Medical Chart 17 Exhibit B Post-Operative Report 20 Exhibit C Notice of Action issued October 4, 2013 25 Exhibit D Statement of Claim filed November 4, 2013 33 3. Affidavit of David Rosenfeld sworn August 28, 2014 69 Exhibit A Proposed Litigation Plan 75 Exhibit B Biomet Website dated October 16, 2006 83 Exhibit C Biomet Website dated October 31, 2006 90 Exhibit D Biomet Website dated February 2, 2007 94 Exhibit E Biomet Website dated February 26, 2008 98 Exhibit F Biomet Website dated March 12, 2008 100 Exhibit G Biomet Website dated May 31, 2008 104 Exhibit H Biomet Website dated October 9 and 10, 2013 106 4. Affidavit of Terri Retzler sworn August 7, 2014 111 Exhibit A Notice Programs 115 5. Affidavit of Lorna Murphy sworn August 15, 2014 122 Exhibit A Curriculum Vitae of Lorna Murphy 124 Exhibit B Expert Report dated August 14, 2014 130 6. Affidavit of Catherine Taylor sworn August 19, 2014 136 Exhibit A Certification Order dated September 2, 2011 141 Exhibit B Notice Order dated June 26, 2013 144 Exhibit C Sealing & Confidentiality Order dated July 15, 2013 155 Exhibit D Ontario Order dated September 18, 2013 158 Exhibit E Quebec Order dated October 22, 2013 160 Exhibit F Instructions to Hospital 164 7. Affidavit of Stephen Graves sworn August 29, 2014 167 Exhibit A Report and Curriculum Vitae 168 Exhibit B Acknowledgment and Expert's Duty dated August 29, 2014 299 001 Court File No. 13-CV-490112-00CP ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: STEVEN DALTON DINE Plaintiff - and - BIOMET, INC., BIOMET ORTHOPEDICS, LLC, BIOMET MANUFACTURING CORP., BIOMET US RECONSTRUCTION, LLC AND BIOMET CANADA INC. Defendants Proceedings under the Class Proceedings Act, 1992 NOTICE OF MOTION (returnable June 22, 2015) THE PLAINTIFFS will make a motion to the Honourable Mr. Justice Edward Belobaba on June 22, 2015, at 10:00 am or as soon after that time as the motion can be heard, at 361 University Avenue, Toronto, Ontario. PROPOSED METHOD OF HEARING: The motion is to be heard orally. THE MOTION IS FOR: (a) an order certifying this action as a class proceeding pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6, as amended (the "CPA"); (b) an order defining the class as: (i) all persons who were implanted in Canada with metal-on-metal hip implant systems known as the M2a 38 (the "38"), the M2a Magnum (the "Magnum"), the ReCap Femoral Resurfacing System, and any other Biomet metal-on- metal hip implant system (collectively, the "Biomet Implants"), or any of the Biomet Implant components including heads, stems, tapers, sleeve adaptors and shells ("Implant Patients"); and 2 00 2 (ii) all other persons who by reason of a personal relationship to an Implant Patient have standing pursuant to s. 61(1) of the Family Law Act, R.S.O. 1990, c. F.3, or equivalent legislation in other provinces and territories as set out in Schedule "A" of the statement of claim. ("Family Law Claimants"). (c) an order that that the within proceeding is certified on the basis of the following common issues: (i) do the Defendants owe a duty of care to the class? (ii) if so, what is the standard of care applicable to the Defendants? (iii) did the Defendants breach that standard of care? If so, when and how? (iv) can the amount of damages for negligence, or some portion thereof, be determined on an aggregate basis? If so, in what amount and who should pay it to the class? (v) if one or more of the common issues (i) through (iii) are answered affirmatively, are class members who are subsequently able to establish valid claims entitled to special damages for medical costs incurred in the monitoring, screening, diagnosis, and treatment of illnesses or infection related to Biomet Implants? (vi) should the defendants be required to implement a medical monitoring regime, and if so, what should that regime comprise and how should it be established, and can the damages attributable thereto be assessed on an aggregate basis? (vii) should the defendants pay punitive, exemplary or aggravated damages? (d) an order appointing Steven Dalton Dine as representative plaintiff for the class; (e) an order approving the proposed notice plan and litigation plan; (I) an order requiring the defendant to pay the costs of the notice program; (g) an order staying any other proceeding based on the facts giving rise to this proposed class proceeding; (h) an order declaring that no other proceeding based upon the facts giving rise to this proceeding may be commenced without leave of the court; 3 003 (i) an order that the defendants shall pay to the plaintiff his costs of this motion plus any applicable taxes; and (i) such other relief that counsel may advise and this Honourable Court may permit. THE GROUNDS FOR THE MOTION ARE: (a) This action was commenced on October 4, 2013 pursuant to the CPA; (b) The plaintiff advances a claim for negligence with respect to the research, design, manufacture, regulatory licensing, sale, and post-market monitoring of the Biomet Implants against Biomet, Inc., Biomet Orthopedics, LLC, Biomet Manufacturing Corp., Biomet US Reconstruction, LLC and Biomet Canada Inc. (c) The pleadings herein disclose a cause of action in negligence against the defendants. (d) There is a large class consisting of Implant Patients and Family Law Claimants. (e) The class is objectively defined, membership being rationally bound by (i) those who have been implanted with the Biomet Implants; or (ii) relationship to Implant Patients. (f) There is a rational relationship between the class and the common issues and the class is not unnecessarily broad. (g) The claims alleged in the Statement of Claim raise common issues, the determination of which will move the litigation substantially forward. (h) In light of the access to justice concerns and with regard to achieving judicial economy, a class proceeding is not only the preferable procedure for resolving these claims but is the only manner by which these claims can be realistically adjudicated. (i) A class proceeding in this case would constitute the fairest, most efficient and manageable means of adjudication of the common issues. -4 014 (j) The proposed representative plaintiff, Steven Dalton Dine, can fairly and adequately represent the interests of the classes, classes with whom he has no conflict with the class on the common issues. (k) The plaintiff has produced a workable litigation plan for advancing the claims on behalf of the class up to the common issues and afterwards. (1) The notice program is a reasonable method of notifying the putative class. (m) The Health Insurance Act, R.S.O. 1990, c. 11-6; (n) The Health Care Cost Recovery Act, S.B.C. 2008, c.27; (o) The Alberta Health Care Insurance Act, R.S.A. 200, c.A-20; (p) The Hospitals Act, R.S.A. 2000, c. 11; (q) The Department of Health Act, R.S.S. 1978, D-17; (r) The Health Services Insurance Act, C.C.S.M., C.1135; (s) The Hospital Services Act, R.S.N.B. 1973, c.11-9; (t) The Health Services and Insurance Act, R.S.N.S. 1989, c.197; (u) The Hospital and Diagnostic Services Insurance Act, R.S.P.E.I. 1988, c. II-8; (v) The Hospital Insurance Agreement Act, R.S.N.I. 1990, c.11-7; (w) The Hospital Insurance and Health and Social Services Administration Act, R.S.N.W.T. 1988, c.T-3; (x) The Hospital Insurance Services Act, R.S.Y. 2002, c.112; (y) The Food and Drugs Act, R.S.C. 1985, c. F.27; (z) The Family Law Act, R.S.O. 1990, c. F.3; 5 (aa) The Tort-feasors Act, R.S.A. 2000 c. T-5; (bb) The Domestic Relations Act, R.S.A. 2000, c. D 10.5; (cc) The Fatal Accidents Act, R.S.A. 2000, c. F-8, (dd) The Fatal Accidents Act, C.C.S.M. c. F50, as amended; (ee) The Fatal Accidents Act, R.S.N.B. 1973, c.F-7; (ff) The Fatal Accidents Act, R.S.N.L. 1990, c.F-6; (gg) The Fatal Injuries Act, R.S.N.S. 1989, c.163, amended 2000 c.29; (hh) The Fatal Accidents Act, R.S.P.E.I 1988, c.F-5, as amended; (ii) The Civil Code of Quebec, S.Q.
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