Frequently Asked Questions

The Ontario Court has authorized a Notice to inform Class Members about the proposed settlement and their options before the Court decides whether to give final approval to the proposed settlement. The notice explains the lawsuits, the proposed settlement, and Class Members’ legal rights.

In a class action, one or more people called a “Representative Plaintiffs” sue on behalf of those who have similar claims. All of these people are called a “Class” or “Class Members”. The courts resolve the issues for everyone affected by the class action, except for those whose excluded themselves, or “opt out” of the lawsuit.

The class actions relate to the Biomet metal-on-metal hip implant systems called M2a 38, M2a Magnum, and ReCap Femoral Resurfacing System. The Representative Plaintiffs claim that they were defective and failed prematurely when implanted in patients in Canada. The Defendants deny these claims.

The plaintiffs and the defendants have agreed to a proposed settlement of the class actions. The proposed settlement is not binding unless approved by the court. By agreeing to settle the lawsuit, the parties avoid the costs, uncertainty, and delay of going to trial and obtaining judgment, and the risks associated with being unsuccessful at trial. In this case, it also means that class members will not need to testify in court.

The plaintiffs and the lawyers for the class (“Class Counsel”) believe that the proposed settlement is fair, reasonable, and in the best interests of the Class.

The proposed settlement applies to all persons who were implanted with a Biomet Device in Canada who have not opted out of the Dine v. Biomet et al. action, their estates and certain family members.

If the settlement is approved, eligible class members who submit all required forms and documentation within the timelines set out in the Settlement Agreement will receive compensation.

Individual Payments to Class Members:

“Qualified Revision Surgery Claimant” means a class member who, as of the Claims Deadline, was implanted with a Biomet Device in Canada and: (i) has had a revision surgery; (ii) has been scheduled for a revision surgery; or (iii) was indicated by a physician as requiring a revision surgery and the revision surgery is planned, even if the date and time  have not yet been finalized. The revision must have taken place, or take place, at least 180 days after the Index Surgery and not have been required because of infection or trauma, unless medical records establish that the claimant would likely have required the revision regardless of the infection or trauma.

“Medically Precluded” means a Class Member for whom a Revision Surgery was determined to be necessary within 12 years and 1 day of the Index Surgery, but who was unable to undergo a Revision Surgery due to the existence of a medical condition

The Settlement Agreement provides that for Qualified Revision Surgery Claimants and Medically Precluded Class Members are in all cases subject to the following reductions:

The settlement agreement also provides for:

a)      A Discretionary Fund to be distributed to Class Members pursuant to a Special Claims Protocol to be approved by the Ontario Court;

b)      Additional compensation for certain defined complications;

c)      Compensation for certain out-of-pocket expenses; and

d)      Compensation for family members who provided care in certain circumstances.

The settlement provides for a Discretionary Fund, which will make other compensation available to eligible Class Members. Please refer to the Special Claims Protocol on each Class Counsels’ website included in the cover letter for specific terms and conditions applicable to Discretionary Fund claims. The Special Claims Protocol still has to be approved by the Courts.

Any remaining funds from the settlement, if applicable, will be distributed to third parties approved by the Ontario Court after necessary legal levies have been paid to the Class Proceedings Fund or the Fonds d’aide aux actions collectives, as applicable. Additionally, the settlement includes provisions for payment to public health insurers.

Upon approval by the Courts, Class Members will have the option to file claims and submit required forms and documentation electronically, by hand, via email, or by mail.

For class members resident outside of Quebec, a 10% levy on each award will be paid to the Class Proceedings Fund. For class members resident in Quebec, a 10% levy on each award will be paid to the Fonds d’aide aux actions collectives.

Under the terms of the Settlement Agreement, the Defendants have agreed to pay Class Counsel the sum of $1.25 million as a contribution towards Class Counsel Fees, Disbursements and applicable taxes.

Class Counsel will be asking the court to approve Class Counsel Fees and Disbursements of 25 percent to be deducted from payments made to eligible Class Members (less the amounts paid by the Defendants) in respect of the work performed and disbursements incurred in the class action and to obtain the Settlement.

Further legal fees, disbursements, and taxes in order to assist each individual claimant to submit a claim in the settlement may also be payable in an amount to be agreed upon as between the Class Member and counsel. Class Counsel undertake not to charge in excess of 8.3 percent to assist with the Class Member’s claim.

Class Counsel are the law firms Koskie Minsky LLP, Stevenson Whelton LLP, Klein Lawyers LLP, and Sylvestre Painchaud & Et Associes.

The Ontario Court will hold a vitual hearing on October 25, 2024 to decide whether to approve the proposed Settlement and Class Counsel’s request for legal fees and disbursements. Class Members may attend the hearing in person and ask to speak but attendance is not required. Contentions or objections should be submitted in writing to Class Counsel at least 14 days before the hearing.

No. Class Counsel will answer any questions the Court may have. If class members wish to observe, they are welcome to attend. Class Members may also have their own lawyer attend at their own expense. Contentions or objections should be submitted in writing to Class Counsel at least 14 days before the hearing.

Class Members may ask the Court for permission to speak at the approval hearing. Contentions or objections should be submitted in writing to Class Counsel at least 14 days before the hearing.

If a Class Member agrees with the settlement, nothing further is required in advance of the settlement approval hearing. If the settlement is approved, the Class Member will then be permitted to submit a claim.