http://www.cuminggillespie.com

Cuming, Gillespie & Raymaker is proud to announce that Justice Cullity of the Ontario Superior Court of Justice has appointed our co-counsel group, led by Won J. Kim of Kim Orr LLP, and James Newand of Lerners LLP as lead counsel in the Canadian national class action claim. Cuming, Gillespie & Raymaker are proud to be Alberta counsel for this matter and we are excited to proceed with seeking certification of a national class action comprising all persons implanted with Guidant Pace Maker and Defibrillator devices throughout Canada.

Cuming, Gillespie & Raymaker is proud to announce we have joined the national counsel team led by Won J. Kim of Kim Orr LLP in Toronto in the proposed national class action regarding Guidant Defibrillators.

A similar claim in the U.S. resolved on a global basis for approximately $214,000,000.00.

Should you have any inquiries with respect to Guidant Defibrillator claims please contact James Cuming of Cuming, Gillespie & Raymaker.

Cuming, Gillespie & Raymaker, and our class action partners, Kim Orr, Lerners, Rochon Genova (and others) are very, very pleased to announce that Justice Hoy of the Ontario Superior Court of Justice has declared a certified national class in the case of Peter et al v. Medtronic of Canada.

This matter will now move forward to the notice stage, and then potentially proceed to a trial on the merits of the claim.

The certification was successful in that it was determined there was an identifiable class, the class members have common issues, a national class action was the preferable procedure and, for the first time in Canadian class action jurisprudence history in a pharmaceutical action a waiver of tort was granted to the Plaintiff class. This means that if the Plaintiffs are successful in their class action they will be able to disgorge profits from the Defendant Manufacturer on the conclusion of the claim.

For further inquiries with respect to the Medtronic claim please contact James Cuming of Cuming, Gillespie & Raymaker.

Pre-Judgment Interest: Date of injury not claim

Willeson v. Calgary (City) [2008] A.J. No. 564. The plaintiff sustained soft tissue injuries and a concussion. At trial, the judge awarded $45,000 for general damages. The judge held that pre-judgment interest was to be calculated from the time the Statement of Claim was served not the date of the accident. The Court of Appeal upheld the award of general damages. The Court went to hold that interest is to be calculated from the date of the accident as that is when the defendant was aware of a claim.

Soft Tissue Injury: One Year

Deo v. Wong, [2008] B.C.J. No. 466 the plaintiff suffered soft tissue injuries in a collision. The court concluded that the soft tissue injuries to the plaintiff’s neck and back resolved within 1 year. The plaintiff also developed knee pain 6 months after the collision. At trial the court awarded $36,650 for all of the injuries including the knee. On appeal, the court held that the knee injury was not related and reduced the damages by $7,000.  The British Columbia Court of Appeal supported and affirmed an award of $29,650 for a moderate soft tissue injury that resolved within one year.

Chronic Pain

O’Scolai v. Antrajenda [2008] A.J. No. 495 the female plaintiff was rear ended in what the court called a minor collision. After 4 years, the plaintiff had not returned to work and was suffering from neck pain, shoulder pain, TMJ pain, weakness in her limbs, nausea and vomiting. After a period of time the plaintiff developed a severe abnormal posture in her neck.

The court considered issues of causation and credibility. The court noted that the plaintiff had prior complaints of pain in her neck and shoulder that was noted to be severe at times. The court also concluded that the plaintiff deliberately exaggerated her symptoms.

The court concluded that the plaintiff suffered from an aggravation of neck and shoulder pain, TMJ pain, nausea and vomiting. The court concluded that the plaintiff’s abnormal neck posture and weakness in her limbs were not caused by the collision. The court concluded that after the passing of 4 years the plaintiff did continue to have a degree of pain in her neck and jaw as well as reduced range of motion but that the severity was exaggerated. The court awarded $75,000 for general damages.  [Justice Read]

Case Summaries Prepared by
Craig G. Gillespie
Cuming, Gillespie & Raymaker
403-571-0555 cgillespie@cuminggillespie.com

The national certification hearing on Vioxx is now set for June 24-27 in Toronto, Canada.

Kelly Cryderman, Calgary Herald
Published: Sunday, April 20, 2008

Minutes after paying $60 in fees for a $300 loan, Terry Hartley just shrugs.
“This one’s not bad,” Hartley, 47, says of the interest on the week-long loan. “It’s not cheap, but it’s better than some of them.”
Hartley, a courier who earns about $600 a week said he’s recently declared bankruptcy — fallout from his divorce and “wasting money.” He has a bank account, but no line of credit.
Two weeks ago, he fell behind on some bills and had to go for an advance at a payday loan company on Macleod Trail.
“You can only get half of what your paycheque is,” he said.
One week later, Hartley went back. This time to take out a loan to pay off almost all of the first loan, which he didn’t have the money to pay off.
The cost of two weeks grace: another $60.
“That’s more or less all it is — convenience,” Hartley said, shrugging once more, adding he hopes he won’t have to get a cash advance again this year.
When a borrower like Hartley takes out another loan to cover the first, with new fees, it’s termed a “rollover” in the payday loan industry. Rollovers have been banned by larger payday loan companies, as they trap some borrowers in a cycle of loans.
Alongside other provinces, the Alberta government is now grappling with rollovers and other contentious issues as it debates how to properly police the rapidly growing payday loan industry. This week will see the end of consultations on new regulations for the industry.
While there has been little attention paid by people not intimately involved, it will be no easy task for the government to come up with rules that please both businesses and consumer advocates.
Some see payday loan companies as shady exploiters of the poor and desperate, or those with bad credit. Others say they provide a much-needed service that banks and credit unions won’t touch, in part due to the high number of defaults on loans.
“The payday loan industry is one that evokes strong opinions from both sides,” said Brock Ketcham, who is leading the Alberta government’s review of the industry in the consumer services branch.
The people who use payday loans are charged $20 to $50 for every $100 they borrow to tide them over until payday. Money Mart, the Cash Store, Western Cash Mart or EZ Cash Advance and numerous others are all firms that provide small, short-term loans with high interest-rates and fees that in some instances add up to 1,000 per cent or more, if calculated on an annual basis.
Whether it be rising consumer costs or an increasingly willing attitude when it comes to taking on debt, Canadians have not shied away from using services offered by the payday loan companies
From just a handful of stores in the early 1990s, Canada now has at least 1,350 payday loan outlets, with more than 250 of those storefronts in Alberta.
“All you have to do is compare a Yellow Pages today with one three or four years ago, and you would see there’s a very significant rise in the number of outlets,” Ketcham said.
The province itself has a strong connection to the industry. The Canadian payday loan industry has its longest histories in B.C. and Alberta, and the two largest providers in the country — Money Mart and Cash Store Financial (formerly known as Rentcash Inc.) — both were founded in Edmonton.
(page 1 of 3) - full article is available here.

Excerpt posted for your convenience from Canada.com, no copyright or ownership of this article is claimed by cuminggillespie.com. The full article is available here.

In February, 2003, I suffered a massive heart attack while a hospital patient.

On February 17, 2003, my wife and I took our two dogs for a walk. I started to have difficulty breathing, was red in the face, became panicky and was sweating even though it was very cold outside. I told my wife that I thought that I was having a heart attack.My wife drove me to the hospital. Upon presentation in Emergency I was sweating, breathing rapidly and my fingers, hand and arms were numb and tingly and I could not catch my breath.The Emergency physician diagnosed acute anxiety and hyperventilation.I was admitted to hospital. The next evening I sustained a massive heart attack.

My life has significantly changed since my massive heart attack - the functional capacity of my heart has been dramatically reduced. I used to be a power engineer at a sour gas plant who enjoyed big game hunting and fishing. I can no longer work and spend most of my time in a reclining chair in front of the television.

I retained the legal services of Bill McNally & Pamela Fischer and launched a medical malpractice law suit. A Justice of the Court of Queen’s Bench of Alberta found that the Emergency Physician was negligent in my care in that he failed to order the required tests for a 45-year-old smoker who arrived in the Emergency Department with my symptoms.

Bill and Pam handled my case in a professional manner and demonstrated a real sense of understanding and compassion with respect to the hurdles I was facing as a result of my sustaining such a life-altering injury. Their successful handling on my case resulted in me being awarded a significant sum of money and this has had a fundamental effect on my life for which I am grateful.

Bob Zazelenchuk

In February, 2002, my life changed forever when I dislocated my right shoulder and sustained a fracture to my humeral head, tore my rotator cuff and damaged the nerves in my shoulder. I subsequently developed a frozen shoulder. I am right-handed and today I live with severe chronic pain which interferes with my sleep and adversely affects all of my daily activities.

I am an elementary school teacher by profession - a vocation which I loved. On February 4, 2002, I took my science class outside to trace their shadows on the sidewalk. As I was walking on the sidewalk of the school yard I stepped on a patch of snow which was situated below a drain spout which channelled water off of the school’s gym roof onto the sidewalk. I fell heavily onto my right shoulder. Shear ice lay under the skiff of snow in a depression in the sidewalk.

I retained Pamela Fischer to represent my legal interests. Pam helped me through the litigation process, concluding with a Judicial Dispute Resolution before the Honourable Madam Justice Romaine. Pam was very professional and compassionate. She understood my medical complications and my fear of the legal process. She obtained a very good settlement for me which will allow me to attend at a Chronic Pain Clinic in an effort to improve the quality of my life. I am fortunate to have had the benefit of Pam’s legal expertise and personal assistance.

Debra S.

To whom it may concern:

My mother was involved in a car versus pedestrian accident on November 23, 2005. She sustained a burst fracture of T12 vertebral body. She had an interior spine decompression at the T11 L1 level with instrumentation and left iliac crest bone graft. She has complete motor loss below T12 and remains with incomplete sensory loss at and below the same level. In short, she was left a paraplegic.

My family and I were totally shocked and really felt helpless until we found McNally Cuming Raymaker. Mr. James Cuming and Mr. Craig Gillespie came to the Foothills Hospital and visited my mom. They did a great job and considered everything for my mom. They contacted social workers; they contacted the Calgary Health Region; found us a brace company and wheel chair company; dealt with the insurance company and they even found a nursing house for my mother’s recovery.

My mother is a resident of P.R. China and after her surgery she had to go back to China to continue therapy. In the next two years, Mr. James Cuming and Mr. Craig Gillespie did a lot of hard work to make everything work well. It was not only a big difference between two health care systems, but it was also very hard to find someone that is good at both languages and being a certified doctor by the Canadian Health system. At the end of 2007, they got the maximum compensation from the insurance company and my mother accepted the offer. Right now, although my mom is still in a wheelchair everyday, I would say we got the best result in this situation. My whole family really appreciates McNally Cuming Raymaker, their professionalism, their understanding, their hard work and their highly efficient team. I highly recommend their services to anybody who truly needs help.

Zhong Wei

On October 10th 2003 I was involved in a motor vehicle accident which changed my life forever. In a instant my hip, leg and back were fractured along with many other injuries. As I lay there, on the road, I could feel the sensation slowly leaving my legs and I ended up with a spinal cord injury.

After a couple of days I woke up and looked down at myself and I said “what a mess”. The next day I called McNally, Cuming Raymaker and I’m glad I did.

In the following week I met with James Cuming, a lawyer for McNally Cuming Raymaker, who explained to my wife and myself exactly what would happen in the following months if we decided to use them to represent me in my lawsuit.

From the beginning I trusted Jamie’s advise because of his commitment to me and his depth of knowledge and experience in the field of personal injury litigation. He explained to me that this litigation would be a long and difficult process. This prepared me for the ordeal that was to follow.

I was quite depressed after my 5 month stay in the hospital and I was convinced that I wasn’t gong to get better.

However, with Jamie’s encouragement, I realized that one day this whole nightmare would be over. During the next four years Jamie encouraged me to stay strong because at times I became quit discouraged. I was impressed with his professionalism and dedication to me and my case and with his knowledge of personal injury law.

As the final day (mediation) approached I was quite stressed, realizing this settlement would change my life one way or another. Jamie Cuming and Craig Gillespie joined forces and persevered and obtained a suitable and substantial settlement for me.

I highly recommend the firm of Cuming , Gillespie & Raymaker.

Russ Bray

Mild to Moderate Soft Tissue Injuries: The Essential Collection

Palpal-Latoc v. Berstad, [2004] A.J. No. 240 the plaintiff suffered injuries which persisted for only seven months. At trial the jury awarded $2,500.00 for general damages. On Appeal, the Court held that $2,500.00 for a seven month injury was inordinately low and substituted an award of $12,000.00 for general damages [updated $13,500].

Sra v. Zhu, 2007 ABQB 426, the 54 year old male plaintiff was injured when he was tboned in a red light intersection collision. He suffered from lower back pain, neck pain and TMJ pain. The court was of the view that he had pre-existing injuries and was also in a subsequent accident. The court had concerns over the plaintiff’s credibility. The court held that his injuries resolved within three to four months. The court awarded $13,000.00 [updated $13,500] in general damages.

Reimer v. Polgar, [2005] A.J. No. 373 (Prov Ct.) the plaintiff suffered soft tissue injuries that were symptomatic for 11 months and were expected to continue on an intermittent basis for some time into the future. The court awarded general damages of $16,500 for the acute phase of less than 1 year plus an additional $3,000 for the ongoing intermittent pain for a total of $19,500.00 updated [$20,750].

Teichgraber v. Gallant, [2003] A.J. No. 70 the plaintiff suffered soft tissue injuries in a very low impact collision. The court had concerns over the plaintiff=s credibility and found that many symptoms were exaggerated. The court was of the view that the plaintiff suffered a mild to moderate soft tissue injury to his neck and back which lasted six months and should have completely resolved after a short period of further intermittent pain. In this case the court assessed the general damages of at $17,000.00. [Updated $18,600].

Krawchuk v. Mellor, [2003] A.J. No. 216 the female plaintiff was rear ended and suffered soft tissue injuries. For only two months she had acute pain and then had lingering intermittent pain for 15 more months. The court awarded $18,000.00 in general damages [updated $19,725] for the two month acute injury combined with the ongoing intermittent and occasional pain.

Morrow v. Zhang, 2008 ABQB 98 the court considered the constitutionality of the Alberta Government “Cap” on soft tissue injuries. The court held that the cap was unconstitutional. In doing so the court assessed damages for two soft tissue injuries:

Pearl Morrow v. Jian Yue Zhang

The 34 year old female plaintiff suffered soft tissue injuries to her neck and upper back but was noted to have a history neck and back pain that predated the Collision. She experienced some tingling and numbness for 6 months post Collision. She was diagnosed with having a “WAD II” injury and mild lumbar strain and attended for 21 physiotherapy treatments. She also attended for 13 chiropractic adjustments and several massage therapy treatments. It was noted that the plaintiff had injuries that were acute for approximately 10 months with gradual improvement over 18 months. Balancing the plaintiffs moderate soft tissue injuries and her underlying medical history the court awarded $20,000.00 in General Damages. Wittmann J.

Brea Pederson v. Darin James Van Thournout et. al.

The 32 year old female plaintiff was rear ended while yielding to pedestrians. The plaintiff suffered soft tissue injuries to her neck, shoulders, back and wrists. Her neck, shoulder and back pain resolved within one month of the Collision. She continued to have wrist pain on an ongoing intermittent basis. The Certified Examiner suggested that the Plaintiff suffered a Grade II soft tissue injury to her neck and back and an injury to her wrist. For soft tissue injuries and the Grade I wrist strain injury the Court awarded $15,000.00 in General Damages. Wittmann J.

Ly v. Gilbert, 2001 CarswellAlta 1524 (Q.B.) two plaintiffs, both 36, suffered soft tissue injuries to their neck and back. Both had pre-existing injuries that were relatively asymptomatic at the time of the accident. They had decreased range of motion and tenderness with pain. The injuries, for the most part, resolved after one year with some ongoing minimal stiffness. The court awarded $25,000.00 [updated $29,000] and $20,000.00 [updated $23,200] respectively.

Dyck v. Wilkinson, [2004] A.J. No. 1155 the female plaintiff suffered neck and lower back pain with some hip pain that lasted approximately 18 months. The Court found that she would also have some intermittent ongoing pain beyond that time but none of her normal activities were restricted. The plaintiff had underlying degenerative disc disease that the Court held was not worsened by the accident. The Court also refused to accept that the Plaintiff had suffered from any permanent or partial impairment. In this case, with soft tissue injuries lasting approximately 18 months, Justice Rooke awarded $30,000.00 in general damages [updated $32,500].

Case Summaries Prepared by
Craig G. Gillespie
Cuming, Gillespie & Raymaker
403-571-0555 cgillespie@cuminggillespie.com