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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

A Communication to Class Members from the National Counsel Team:

In recent days and months, there has been significant media coverage about developments in Vioxx litigation, both in Canada and in the United States and you may be confused about what these developments mean and how they affect your rights. This update aims to provide you with some explanations and assistance in understanding the current situation with Vioxx litigation in Canada.

In November, 2007, Merck & Co. announced that it had agreed conditionally to settle a significant portion of the Vioxx claims in the U.S., setting aside approximately $4.85 billion to do so. Even though those cases deal with the exact same drug as the Canadian litigation, Merck has, to date, made no effort to establish a parallel settlement for Canadian users of Vioxx and Merck Frosst Canada Ltd. has publicly and repeatedly stated its intention to vigorously defend all Vioxx lawsuits in Canada.

The defendants have raised various procedural hurdles which have slowed the progress of the litigation. As a result, all Vioxx lawsuits in Canada remain in various stages of litigation. In Ontario, there is a proposed national class action which has been brought on behalf of all Canadian users of Vioxx and their family members. A consortium of 19 eminent law firms from all across Canada has come together to collectively represent Canadians in this lawsuit and advance the strongest case possible. At this stage, all Canadians who took Vioxx (and their family members) are covered by this lawsuit, whether they take any active steps to contact counsel or not.

The Ontario action was originally scheduled to proceed to its certification hearing in October, 2007. This hearing is a mandatory step in the litigation process and decides whether or not the action should be allowed to proceed as a single class action lawsuit, for the benefit of all class members. Shortly before the Ontario hearing was scheduled to proceed, the defendants sought and were granted an adjournment in order to conduct cross-examinations of various witnesses. The rescheduled hearing was set to commence on February 13, 2008, but only several days before the certification hearing, the defendants sought to have Mr. Allan Rock, Q.C., the firm of Sutts, Strosberg LLP and the National Counsel Team disqualified as a result of Mr. Rock’s previous political career, during which he served, among other things, as the federal Minister of Health. As a result of this last minute motion, the certification hearing was, once again, adjourned.

Mr. Justice Maurice Cullity of the Ontario Superior Court of Justice heard the removal motion on February 15, 2008. In a decision released on February 26, 2008, his Honour decided that Mr. Rock would have no further involvement in this case; however, Sutts, Strosberg LLP and the rest of the National Counsel Team remain as counsel in this action and strongly believe that the certification hearing should be rescheduled as soon as possible, and hopefully no later than April, 2008.

On November 9, 2006, Justice Andre Denis of the Quebec Superior Court authorized a class action for Quebec residents who suffered damages caused by the use of Vioxx. That case pertains to residents of Quebec only and is also continuing to work its way through the legal system.

In further recent Canadian Vioxx news, a separate case launched in Saskatchewan was certified as a class action in a decision released on February 20, 2008. We welcome the decision of Mr. Justice John Klebuc in determining that litigation related to Vioxx is an appropriate case for certification; however, we note also that Merck has already indicated its intention to appeal that decision which will likely stay the certification decision and any related certification order. Practically speaking, this means that this case will be on hold until Merck’s appeal rights are exhausted.

We should also note that the decision allows Canadians who do not reside in Saskatchewan to participate in the class action on an “opt in” basis. If you do not reside in Saskatchewan but choose to “opt in” to this action, you may be precluded from participating in the Ontario action or be represented by the National Counsel Team. It will be very important to consider how your rights will be affected before deciding whether or not to opt in to the Saskatchewan class action. Again, in view of Merck’s intention to appeal Mr. Justice Klebuk’s decision, it is likely that this aspect of the case will be on hold pending the appeals process as well.

Because Merck has not, to date, indicated any willingness to make any settlement proposal for Canadian Vioxx users, in spite of their multi-billion dollar settlement proposal in the US, the current strategy of the National Counsel Team is to drive the Ontario litigation forward and deal with the case on the merits. The time for class members to make any necessary decisions about how to advance their individual claims will arise after these various proceedings have been finally determined following a common issues trial. It is unfortunately not possible to predict with certainty how long this process may take; however updates will be provided as they become available.

As members of the National Counsel Team, we wish to express our appreciation to all class members for their patience to date with this complex litigation and we wish to assure you all that everything is being done to ensure that you receive the justice you so rightly deserve.

Cuming, Gillespie & Raymaker are very happy to announce the addition of Lerners LLP of London, Ontario to the National Class Action Team for the Accutane litigation. Lerners LLP brings a wealth of experience and talent to the class action which will be proceeding shortly through the Ontario Superior Court. James Cuming of Cuming, Gillespie & Raymaker is one of the primary counsel on the national class action claim.

We will continue to keep our clients apprised as to the progress of the Accutane National Class Action which will be proceeding on Ontario.

The Canadian National Class Action has been set for a Certification hearing in Ontario on February 13, and 14 2008. Lead Counsel on the matter will be Siskens LLP, Sutts Strosberg and Rochon Genova LLP, all of Ontario.

We will keep our clients apprised through the website at the determination of the certification hearing.

James D. Cuming and Craig G. Gillespie of Cuming, Gillespie & Raymaker are very pleased to announce that in December, 2007, a claim for a motorcyclist who was struck by a left turning driver was resolved for a high six figure settlement. The motorcyclist suffered significant orthopedic and neurological injuries, and resolved very well from his significant injuries. Our client is currently employed with a voluntary organization and is able to assist others who have suffered significant loss and injury similar to his own. The matter was resolved through an independent mediation with the assistance of David Stark of Calgary as a mediator. We thank Mr. Stark for his commitment and involvement to the matter as well.

Cuming, Gillespie & Raymaker are proud to announce that they have successfully resolved a claim for a paraplegic woman who was struck in a crosswalk for the full insurance policy limits of the Defendant driver. The case, which was handled by James D. Cuming and Craig G. Gillespie, was resolved in 25 months from the date of the incident for the full amount of the Defendant’s insurance policy plus costs. The individual and her family were extremely happy with the expedient resolution of the claim and that level at which it resolved.

Cuming, Gillespie & Raymaker continue to proceed with the Canadian National Class Action with respect to the Vioxx claims.

The Vioxx claims within the U.S. only have been resolved for the sum of $4,850,000.00 dollars pursuant to an agreement between Merck & Co. Inc and a six member negotiating committee on behalf of all U.S. Plaintiffs. The details of the U.S. settlement are available online at www.officialvioxxsettlement.com.

The claim has not resolved and will be proceeding to a certification hearing in 2008.

An amended order from the court on the HMS Financial case has been posted.

The Instaloans National Class Action claim is now completed. All individuals who have submitted claims have either received their compensation or have been denied their claim pursuant to the review of the Claims Administrator under the guidelines set out by the Ontario Superior Court of Justice.

No new claims can be processed through the Class Action.

All individuals who have or may have a perspective claim are free to proceed as against the Defendants exclusive of the Class Action in any jurisdiction in Canada.

Cuming, Gillespie & Raymaker will not be acting on behalf of any individual claimants in this matter.

This e-mail is to update you on developments since our August 7, 2007 update on the status of this litigation.

As of this update, we do not have a decision from the Court with regard to the Certification of our action as a Class Action.

We continue to work with counsel in the United States to have the HMS investor funds frozen in the First National Bank of San Diego transferred to the Alberta Courts.

We are also working with counsel in Indiana to recover funds which were invested by Garth Bailey, and which we believe are HMS investor funds.

We continue to prepare and submit Assurance Fund Applications for those clients who responded that they would like us to do so on their behalf. To date we have submitted over 60 applications. To date the Law Society has responded with requests for further information, which we are now responding to in advance for all new applications. No other timeline for response has yet been
given.

On November 23, 2007 an application was heard with respect to a request by the Alberta Lawyers’ Insurance Association (”ALIA”) and the Canadian Lawyers’ Insurance Association (”CLIA”) to have a referee appointed with respect to the review and production of the Defendant Lawyers Bailey and Carlson’s Trust Records, at the Plaintiffs’ cost. The application by ALIA/CLIA was dismissed,
however, ALIA/CLIA are permitted to use the referee they were proposing at their cost. ALIA/CLIA was given 60 days to make a decision on whether or not they wished to proceed with their referee. Further, 60 days after November 23, all documents requested from Bailey and Carlson will be released to Plaintiffs’ counsel, unless ALIA/CLIA have elected to pay for and invoke the referee process.

Please note that Mr. Bill McNally of McNally Cuming Raymaker has retired. With his retirement, the firm of McNally Cuming Raymaker has changed its name to Cuming Gillespie Raymaker. The new website containing the information on our action is
www.cuminggillespie.com/practice-areas/class-action/securities/
hms-financial-inc.html.

Also, please remember that we try our best to keep you up to date on how things are proceeding and that we will provide you with updates as there is news to update you with. If you do not receive an update for several months, this means that there is nothing newsworthy to share with you.

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