Schmolzer v. Higenbottam, 2009 ABQB 522.  [B.E. Romaine]

The 35 year old male Plaintiff suffered soft tissue injuries and a mild traumatic brain injury or concussion. The soft tissue injuries resolved within 12 months. The court accepted the evidence of both plaintiff and defendant expert that the head injury was fairly classified as a mild traumatic brain injury or alternatively, a concussion.  It should be noted that there was only a brief loss of consciousness, a GCS of 15 at the scene and no diagnosis of head injury made.

The court awarded general damages of $75,000.


Egglestone v. Cox, 2009 ABQB 584.  [L.D. Wilkins]

The male plaintiff was involved in a t-bone collision on July 1, 2004. The plaintiff suffered from a non displaced fractured vertebra in his neck resulting in an 8% impairment. The plaintiff also suffered soft tissue injuries to his neck, upper back and shoulders as well as headaches. These were acute for approximately 15 moths with ongoing residual chronic pain.  It was also alleged that the plaintiff suffered a head injury. It was noted that there was likely no loss of consciousness and only minor issues with memory around the time of the Collision. The plaintiff was noted to have an underlying history of depression. The plaintiff was diagnosed by a neurologist and a number of IME’s as having a concussion and post-concussion syndrome. The court rejected the diagnosis and held:

For these reasons, I accept the opinions of Dr. King and Dr. Levin that the symptoms of neurological or psychological difficulties disclosed by the Plaintiff were not proven, on a balance of probabilities to have been caused by the accident. They would have occurred in any event “but for” the accident due to his untreated depressive illness or his adjustment disorders.

The court awarded general damages of $75,000.


Park v. Jordan and Jordan ABQB No. 0801-00138 [Mr. Justice Mahoney].

The 41 year old male Plaintiff was a passenger in a pick-up truck that went over a 20 to 30-foot cliff into a riverbank.  The Defendant was the driver.  The Plaintiff suffered the following injuries: spiral fracture of his right humeral shaft, decreased sensation in his arm due to a crushed radial nerve, aggravation of a pre-existing back condition, and restricted range of motion in his shoulder.  Two years after the incident, the Plaintiff continued to experience episodes of chronic pain in his cervical, upper thoracic and lumbar spine, for which no future relief was predicted.  The Plaintiff sustained a permanent arm impairment of 10%, representing 6% whole person impairment.

In determining damages for the soft tissue injuries, the Court held that the aggravated back injury and minor neck injury were at the low end of the moderate soft tissue injury.  The damages would be worth $7,500 under the old regime and were therefore capped at $4,000 pursuant to the proper meaning of the Minor Injury Regulation, Alberta Regulation 123/2004.

Mr. Justice Mahoney discussed how the cap should be applied to the determination of damages, indicating that:

The cap works on the basis that if general damages under the old regime would have been assessed at $4,001 based on decided law, then that amount of damages is reduced to $4,000.  If general damages for a minor injury would have been assessed at $10,000, that amount is reduced to $4,000.  If general damages are assessed any higher, they are all reduced to $4,000.

All damages for minor injury above $4,000 are reduced to $4,000, but any claim that previously would have been worth $4,000 or more is not somehow assessed and prorated on the basis of how it measures against the worst possible minor injury.

The Court awarded the cap of $4,000 plus $75,000 in general damages, subject to a 10% deduction for contributory negligence on the basis that the Plaintiff failed to wear a seatbelt.

Relevant Quoted Passage from Park v. Jordan and Jordan

…I am told some insurance companies take the position that the cap is similar to the cap in the trilogy cases.  In other words, the $4,000 cap is a maximum that can be achieved for the most seriously injured person sustaining minor injuries as defined in the regulation.  Therefore, so the argument goes, the $4,000 cap is not always awarded in each case.

In reading the legislation I do not find any language that would have the cap work that way.  The cap works on the basis that if general damages under the old regime would have been assessed at $4,001 based on decided law, then that amount of damages is reduced to $4,000.  If general damages for a minor injury would have been assessed at $10,000, that amount is reduced to $4,000.  If general damages are assessed any higher, they are all reduced to $4,000.

All damages for minor injury above $4,000 are reduced to $4,000, but any claim that previously would have been worth $4,000 or more is not somehow assessed and prorated on the basis of how it measures against the worst possible minor injury.  If the legislature wanted that approach, it would have made its intention unambiguously clear.

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

On October 22, 2009, the Supreme Court dismissed three leave applications relating to the Ontario class action (Mignacca v. Merck). The result of the Supreme Court’s decisions is that the Ontario action is currently the only certified Vioxx class action in Canada outside of Quebec. That being said, the defendants (”Merck”) continue to challenge certification in Ontario .

In May 2008, the Saskatchewan court certified a Saskatchewan action as a national opt-out class action. However, on March 30, 2009, the Saskatchewan Court of Appeal set aside the certification order and refused to grant leave to amend the pleadings. Mr. Merchant – counsel for the proposed Saskatchewan  sought leave to the Supreme Court and was refused by its October 22, 2009 decision. This effectively ends the stand-alone Saskatchewan class action.

Status of the Ontario Class Action

On July 28, 2008, Justice Cullity certified this Ontario action as a national class action relating to Vioxx excluding Quebec. However, Merck continues to challenge certification.

The litigation battle continues in Ontario, and we will keep our clients apprised as the matter continues.

CUMING & GILLESPIE

We are pleased to announce that Jamie Cuming has been recommended again as leading lawyer in The Canadian Legal LEXPERT® Directory 2009 (13th Edition), published by Thomson Carswell. The LEXPERT® Directory is a leading, peer-review-based directory of legal practitioners in Canada. Recommendations for lawyers in the annual LEXPERT® Directory are based on an exhaustive annual peer-review survey, with firm rankings tabulated from the cumulative rankings of individuals within each practice area reviewed.

We are pleased to report that on June 23, 2009, Judge Miller of the United States District Court of Southern California granted our Motion to Intervene in the Interpleader Application in San Diego.  Jude Miller ordered that only directly traceable claims are to be recognized, that the aggregators with directly traceable claims will not be recognized and must await the outcome of the Canadian action and that the funds remaining after the directly traceable claims and administrative expenses are paid will be paid into court in our action.

This successful application is the result of several years work, and we are pleased with the outcome.

On another note, on or about June 12, 2009, the Notice of Class Action was sent to the last known address for any investors we had record of, other than those investors who have already signed a Contingency Fee Agreement with us.  These investors will have 60 days to Opt Into (for Non-Alberta residents), or Opt-Out of (for Alberta Residents) the Class Action.

We are also in the process of exchanging document productions with Defendants, and scheduling Examinations for Discoveries of those parties on their documents throughout the coming summer and fall.

We will continue to update you with any news if there is anything to update you with.  But please remember that we ask that you not call or e-mail for updates.  It is very time consuming and expensive for us to deal with clients seeking individual updates, so please understand that if you do not receive an update for several months, this means that there is nothing newsworthy to share with you.

Thank you for your understanding.

Yours truly,

Lynn Dechaine (for Graham McLennan)

Paralegal - Litigation
McLennan Ross LLP
Toll Free: 1-800-567-9200
Direct Line: (780) 482-9281
Fax: (780) 482-9100

At the time of the collision I was a 39 year old single woman who was 37 weeks pregnant.  I sustained significant bruising to my abdomen, left thigh, feet and right shoulder.  I was stiff and sore all over.  An urgent “C” section was performed two days later.  I continued to suffer from constant bilaterally shoulder pain and back pain.  M.R.I.s demonstrated a full thickness fear of the rotator cuff in both of my shoulders.  An Orthopaedic Surgeon considered surgical treatment to my neck due to disc degeneration and interforaminal spurring which caused daily headaches.  I developed myofascial pain in my upper back.  I developed depression.  Arthroscopic surgery was done on my left shoulder and will be done on my right shoulder in the future.

I worked for a Canadian bank in a physically demanding position which required travel and a lot of lifting. My chronic pain and depression adversely affected by ability to fulfill my duties.  After the surgery to my shoulder I was unable to lift anything above my waist.

I still have on-going difficulties with pain, stiffness and movement of both shoulders, neck pain, daily headaches and depression.

I retained Pamela Fischer to represent me in my legal action against the insurance company of the at-fault driver.  I knew that my quality of life and livelihood would be adversely affected by my injuries.  I recognized that I needed to be represented by highly competent legal counsel.

Ms. Fischer represented me very well and helped me through the litigation process each step of the way.  She responded to my inquiries in a timely and informative manner.

My claim was settled after I participated in a judicial mediation with the adjuster and the lawyer who represented the insurance company.   I felt that my concerns were heard through-out this process.  I was very pleased with the amount of compensation I received  –  it will replace future lost income and will cover the cost of future medical treatment.

I highly recommend Ms. Fischer & her law firm for anyone who is seriously injured and wants highly capable legal counsel.
A. M.

I required pelvic reconstruction and was hospitalized for 8 weeks.  Upon discharge I wore a knee splint, was on blood thinning medication and used a wheelchair.  Over time I used a walker, crutches and then a cane.  I received extensive physiotherapy for three years.  I developed depression.

Upon my discharge from hospital, I retained Pamela Fischer to represent me in my legal action against the insurance company of the at-fault driver.  I knew that my injuries were serious, permanent and would affect my livelihood and quality of life.  I knew I needed to retain highly competent legal counsel.

Ms. Fischer represented me very well and helped me through the litigation process each step of the way.  She responded to my inquiries in a timely and informative manner.

I was unable to return to work and had to find alternate employment.  I will have to undergo several surgeries in the future to my hip and knee.

My claim was settled after I participated in a private mediation with the adjuster and the lawyer who represented the insurance company.   I felt that my concerns were heard through-out this process.  I was very pleased with the amount of compensation I received  –  it will replace income I will lose and will cover the cost of future medical treatment.

I highly recommend Ms. Fischer & her law firm for anyone who is seriously injured and wants highly capable legal counsel.
Colin Jessup