Executive Summary: Key Legal and Evidentiary Issues

• At issue is the scope of document production by the defendants in a certified class action concerning Mentor Worldwide LLC MemoryGel™ silicone gel-filled breast implants.
• Plaintiffs allege that Mentor breached its duty of care through inadequate post-market surveillance and failure to warn class members and surgeons of the risks of Breast Implant Illness (BII) and connective tissue disorders (CTDs).
• Central to the dispute is whether Mentor's internal documents and communications regarding BII and CTDs are material to, or relate to, the certified common issues set for a summary trial in February 2027.
• Proportionality under the Supreme Court Civil Rules (SCCR) was a key principle governing the court's exercise of discretion over the scope and timing of document production.
• The court found that broad compelled production of approximately 20 years of Mentor's internal electronic communications was not proportional at this stage of the proceedings.
• Limited additional production was ordered, requiring Mentor to disclose internal testing, studies, data, and non-privileged communications with expert consultants regarding BII and CTDs within 35 days.

Facts of the case

This certified class action was commenced by plaintiffs Denée Jesanna Bosco, Stephanie Nicole Marto, and Jaime Lyn Hoolsema against defendants Mentor Worldwide LLC and Johnson & Johnson Inc. (collectively, "Mentor") by notice of civil claim filed on January 3, 2019, and amended on September 15, 2021, March 1, 2024, and October 2, 2025. The action was certified as a class proceeding on October 21, 2024, in reasons indexed as Bosco v. Mentor Worldwide LLC, 2024 BCSC 1931. The case concerns Mentor's MemoryGel™ silicone gel-filled breast implants used in breast augmentation and reconstruction surgery. The plaintiffs allege that the implants cause or contribute to adverse health effects, including specific connective tissue disorders (CTDs) and systemic inflammatory and/or autoimmune symptoms commonly referred to as Breast Implant Illness (BII). The plaintiffs further allege that Mentor breached its duty in post-market surveillance and monitoring, failed to warn class members and surgeons of the associated risks, and that its supply of the implants breached consumer protection and competition legislation. Twelve common issues were certified, with common issues #2 to #4 — addressing whether BII is a real disease, its defining characteristics, and whether the implants have the capacity to cause BII or CTDs — set to be tried summarily in a ten-day hearing commencing February 22, 2027.

Policy terms and contractual clauses at issue

The document production dispute was governed by the Supreme Court Civil Rules (SCCR) and the Class Proceedings Act, R.S.B.C. 1996, c. 50 (CPA). Under SCCR Rule 7-1(1), parties must produce all documents in their possession or control that could be used at trial to prove or disprove a material fact. Rule 7-1(11) allows a party to demand additional documents that relate to matters in question in the action, provided the demanding party shows the existence and possible relevance of such documents beyond a mere possibility. Under Rule 7-1(14), the court may order compliance, partial compliance, or excuse full compliance with a document demand. Rule 7-1(22) addresses the postponement of discovery where an issue in dispute should be determined before deciding on the right to discovery. Proportionality, as set out in SCCR Rule 1-3(2), requires the court to balance the burden of producing additional documents against their materiality and probative value.

Reasoning and analysis

The court began by reviewing Mentor's document production to date, which comprised three lists of documents and 1,881 documents totalling over 82,000 pages. These included submissions to Health Canada dating back to 2003, annual reports to Health Canada, regulatory submissions to the FDA, worldwide adverse event information from 2006, product information data sheets, patient brochures used in Canada during the class period, archived versions of Mentor's Canadian websites, and materials provided by sales representatives to doctors. The court accepted that Mentor had produced extensive documentation, but the question was whether its production was adequate at this stage.

The plaintiffs requested twelve broad additional categories of documents, later narrowed to three: all internal Mentor presentations, memoranda, emails, and meeting minutes discussing or analyzing BII or CTDs; all internal pre-clinical, laboratory, epidemiological studies, health hazard evaluations, and communications with external consultants relating to BII or CTDs not previously disclosed; and all internal Mentor documents relating to the "Dow Corning moratoria" dating back to 2003. The plaintiffs argued these documents were material to the summary trial issues or intertwined with the other certified common issues, and that without them the summary trial would proceed on a sanitized record.

The court examined the allegations in paragraphs 73, 74, and 80 of the Third Amended Notice of Civil Claim (Third ANOCC), finding that the plaintiffs did not expressly plead that Mentor suppressed information or manipulated science, but rather alleged failures to follow up on studies, to report known risks, and to appropriately investigate and disclose those risks. The court distinguished Gionet v. Syngenta AG, 2024 BCSC 1440, which the plaintiffs cited in support of broad internal document production, on the basis that it was a certification decision rather than a document production application, and involved specific instructions to an expert to ignore relevant information that the defendant knew existed — circumstances not replicated here.

On proportionality, the court found that compelling Mentor to produce approximately 20 years of internal electronic communications regarding BII and CTDs would be onerous and costly, and that the plaintiffs had not demonstrated the relevance of those documents to the threshold summary trial issues beyond a mere possibility. The court further found that Mentor's internal non-privileged communications with expert consultants and its internal testing, studies, and data regarding BII and CTDs could relate to the summary trial issues and overlap with the other certified common issues, warranting limited additional production. However, broader categories of internal communications, meeting minutes, and unspecified documents did not meet the required threshold. Regarding the Dow Corning moratoria documents, the court was not persuaded that documents related to a different manufacturer and a different product were relevant to the summary trial issues or any overlapping certified common issues.

On the question of postponement, the court distinguished Kwantlen University College Student Association v. Canadian Federation of Students Association – British Columbia, 2017 BCSC 163, where the planned summary trial was found to be a trial of the whole action, noting that in the present case not all pleaded issues would be before the court on Mentor's summary trial application. The court found it appropriate to defer production of remaining documents until after the summary trial, consistent with the approach in Callahan Construction Co. Ltd. et al. v. National Bank Finance Ltd. et al., 2005 BCSC 1746, where a similar postponement was ordered pending determination of summary trial issues.

Ruling and overall outcome

Justice Douglas partially granted the plaintiffs' application for additional document production, resulting in a mixed outcome for both parties. The plaintiffs partially succeeded in obtaining a court order requiring Mentor, within 35 days, to provide a further updated list of documents identifying, if they exist and have not already been produced: (i) internal Mentor testing, studies, and/or data regarding BII and CTDs; and (ii) Mentor's internal non-privileged communications with, and/or reports from, its expert consultants and/or scientific advisors regarding BII and CTDs. The defendants were substantially successful on the remainder of the application — the court declined to order full and immediate production of all requested documents, upheld the principle of proportionality, and postponed production of all remaining requested documents until after the summary trial in February 2027. The plaintiffs were granted leave to renew their application for further document discovery at a later stage on appropriate evidence. No monetary award was granted or ordered in this decision, as the matter concerned procedural document production rather than the determination of the substantive claims.