Practice

We have received several inquiries from class members concerning the Claim Form. The Claim Form can be obtained from the Fund Administrator in one of the following ways:

1. By telephone at 1-866-553-1124;

2. By email at breastcancertesting@crawco.ca; or

3. By printing from www.nlbreastcancersettlement.ca.

If you are unsure as to which compensation category you belong, you can select "Category 7" on page 2 of the Claim Form.

Breast Cancer Testing - Claim Process

We have received several inquiries from class members concerning the Claim Form. The Claim Form can be obtained from the Fund Administrator in one of the following ways:

1. By telephone at 1-866-553-1124;

2. By email at breastcancertesting@crawco.ca; or

3. By printing from www.nlbreastcancersettlement.ca.

If you are unsure as to which compensation category you belong, you can select "Category 7" on page 2 of the Claim Form.

Court Approves Class Action Settlement

On Friday February 12, 2010, the Court approved the settlement of the class action arising out of errors in ER/PR testing between 1997 and 2005. A copy of Judge Thompson's decision is available here.

Further details about how to apply for compensation will be released in the next few days.

Crosbie Firm Gives Notice to Class Members

In a February 2 court application lawyers for members of the Breast Cancer Testing class action will seek settlement approval and approval of the contingent fee agreement signed by the representative plaintiff and 348 class members. The settlement includes $17.5 million in compensation and an independent audit of changes to health care.

The compensation categories which the court will be asked to approve are as follows (the amounts are net after deduction of fees and expenses):

	Compensation Target
Category 1: Class Member whose test result changed from negative to positive, did not receive timely hormone therapy and suffered a breast cancer recurrence within 10 years of original diagnosis.	$ 75,000.00
Category 2: Class Member whose test result changed from negative to positive, did not receive timely hormone therapy and had stage IV breast cancer at the time of initial testing.	$ 15,000.00
Category 3: Class Member whose test results changed from negative to positive, did not receive timely hormone therapy and has not suffered a breast cancer recurrence.	$ 15,000.00
Category 4: Class Member whose test results changed from positive to negative as set out in the settlement and who received hormone therapy.	$ 10,000.00
Category 5: Class Member who does not fit in Categories 1, 2, 3, or 4 and who suffered a psychological injury as defined in the settlement.	$ 5,000.00
Category 6: All other Class Members	$ 1,000.00

The notice to class members was sent today and is on Ches Crosbie Barristers website, along with the Settlement Agreement and Distribution Protocol. The notice points out that the settlement does not include claims arising from misdiagnosis of breast cancer, for example a diagnosis of pre-cancer (DCIS) which was really invasive cancer. Patients who have such claims may pursue individual lawsuits.

If the court application on February 2 is approved, the compensation fund administrator will make application forms available to class members who request one. "The first payments will be made to category 1 patients," said Mr. Crosbie. "Time is not on their side."

Compensation Categories Announced

COMPENSATION CATEGORIES ANNOUNCED FOR

BREAST CANCER TESTING CLASS

The compensation categories for members of the Breast Cancer Testing Class Action were announced today by Ches Crosbie Barristers, the law firm for the Class Members.

The settlement will be divided among Class Members according to the nature of their injuries and their medical histories. An easy to complete application form will be made available. There are six compensation categories:

	Compensation Target
Category 1: Class Member whose test result changed from negative to positive, did not receive timely hormone therapy and suffered a breast cancer recurrence within 10 years of original diagnosis.	$ 75,000.00
Category 2: Class Member whose test result changed from negative to positive, did not receive timely hormone therapy and had stage IV breast cancer at the time of initial testing.	$ 15,000.00
Category 3: Class Member whose test results changed from negative to positive, did not receive timely hormone therapy and has not suffered a breast cancer recurrence.	$ 15,000.00
Category 4: Class Member whose test results changed from positive to negative as set out in the settlement and who received hormone therapy.	$ 10,000.00
Category 5: Class Member who does not fit in Categories 1, 2, 3, or 4 and who suffered a psychological injury as defined in the settlement.	$ 5,000.00
Category 6: All other Class Members	$ 1,000.00

Ches Crosbie stated that the compensation targets are projections based on how many Class Members are expected to come forward and qualify within each category. The compensation to each Class Member could be higher or lower than the target amounts if the number of approved claims differs from the projections. Payments will be made to Class Members who fit the above descriptions. If a Class Member has died, the payment will be made to her estate. There are no separate payments for family members of the Class Member.

Mr. Crosbie stated that payments will be made to patients who fit the above descriptions. He added that if a Class Member has died, the payment will be made to her estate and will be no less than if the Class Member were still living. There are no separate payments for family members of the Class Member.

“The class action concerned incorrect hormone receptor testing, as reflected in the class definition, and the settlement does not include claims for misdiagnosis of breast cancer”, Mr. Crosbie said.

Mr. Crosbie added that a separate arrangement for patients who have misdiagnosis claims and may wish to pursue them, is being worked out. A formal notice will go out in the first days of January, and the hearing to approve the settlement will be held on February 2, 2010, at the Courthouse, Duckworth Street, St. John’s.

CHES CROSBIE BARRISTERS

169 Water Street, 4^th Floor

St. John’s, NL A1C 1B1

Telephone: 579-4000 or 888-579-3262

Facsimile: 579-9671

Email: ccb@chescrosbie.nf.net

Crosbie not giving up on VLT class action

Lawyer Ches Crosbie is making a second attempt at getting a class action certified against Atlantic Lottery Corp. (ALC) over video lottery terminals.

Crosbie's attempt toward starting a class action failed in 2008. Crosbie argued ALC broke the provincial Trade Practices Act.

But Supreme Court of Newfoundland and Labrador Justice Wayne Dymond ruled ALC was a Crown corporation and "immune" from the trade practice law.

This time around, Crosbie's arguments include a breach of the Criminal Code, breach of the Competition Act, unjust enrichment, breach of contract and breach of duty to warn.

A hearing on the application is yet to be set, but that will be the subject of a meeting with Dymond in January.

"The main point is this is a deceptively designed and inherently dangerous product," Crosbie said of the VLTs Friday.

"We're holding ALC as the agency charged by the government and law with upholding the public interest for purveying this product to the population of Newfoundland and Labrador."

The class period spans six years and the lead plaintiff is the estate of Susan Piercey, represented by her father Keith.

Susan Piercey, 31, committed suicide by overdosing on pills in 2003.

She was addicted to gambling for 10 years and is estimated to have lost about $100,000 over that time.

The family wants to see a ban on VLTs and has said it will donate any money from a successful class-action lawsuit to gambling-addiction programs.

There's also a new affidavit by businessman Robert Tucker detailing his personal turmoil with the machines.

He said he started selling properties - five between 2002-07 worth nearly $650,000.

"With each sale I would apply the majority of the funds to paying off debt accumulated because of VLT use or use the funds directly in VLTs," Tucker said in the affidavit, adding he'll donate any money resulting from a possible class action to charity.

"For me personally, this lawsuit is not about recovering lost money. It is about exposing the misleading and inherently harmful nature of VLTs so that other people and their families will not have to suffer through my experience," Tucker said.

He said he began playing VLTs in 1994 when he took over the Alley Pub in a building he owned on Water Street, St. John's.

Tucker brought in five VLTs and operated the pub for six months before finding a tenant.

He also operated the Silver Spur on the ground floor from '94 to 2000.

There were VLTs in there, too, but Tucker took them out not long after taking over.

Tucker said he expects he would have made $25,000 to $30,000 a year on the VLTs at the Silver Spur, or about 10 per cent of the bar's gross revenues.

But he observed some bars are much more reliant on VLT profits than they are alcohol sales, suggesting there are bars that "exist for the purpose of VLT revenues."

Tucker played the machines regularly in the province and quit in December 2007 when he ran out of money.

"The amount of money I deposited into VLTs was significant. For instance, in 2006 and 2007, the last two years I was using VLTs, I spent approximately $150,000 playing VLTs in Newfoundland," Tucker said in his affidavit.

He said he tried everything to quit - leaving his house without money or credit and debit cards and reducing his daily ATM limit. But it didn't work - he'd just go to the bank to get cash or a new debit card.

"When I played VLTs, I felt like I was under a hypnotic spell. I felt like I did not have the choice of walking away from the machines - it felt like I had no control over the process," Tucker said.

He also said he wasn't given any instruction or training by Atlantic Lottery about how to address problem VLT gamblers.

But he was told to get a bank account where he could make weekly deposits to Atlantic Lotto Corp. of the money generated FROM the VLTs, as well as get a separate phone line for the machines and to keep a float to pay out to winning gamblers.

Ontario Awards Climb Towards $20 Million

Two recent eye catching Ontario decisions in personal injury cases show that courts in that province do not shy away from very large numbers.

In one case, the Ontario Court of Appeal confirmed an award of more than $15 million plus costs, given after a six week jury trial. The defendants appealed on both liability and damages.

In another case, a trial judge awarded a 15-year-old girl and her parents a total of $18,427,000 in damages. She had been severely brain injured in a crash. She was unemployable and required 24-hour supervision.

The judge awarded the maximum non-pecuniary general damages allowed by the so-called trilogy cases, namely $336,968. The plaintiff's mother received $160,000, her father $125,000, and her brother $50,000 for loss of guidance, care and companionship.

Most of the award was taken up with future care costs, at over $15 million. The court accepted evidence of a healthcare economist that healthcare costs are expected to rise at a rate greater than the general rate of inflation, and used a discount rate more generous than the prescribed rates. The defence argued for a 25% contingency deduction from the future cost of care award to reflect the possibility of diminished life expectancy, but the court held that the burden of establishing reduced life expectancy rested with the defendants. In the absence of such evidence, the court concluded that the plaintiff had a normal life expectancy.

(For Ches Crosbie's blog comments and links to these decisions see Ontario Courts Not Afraid of Large Numbers.)

Breast Cancer Testing Class Action Settles

Eastern Health and Members of the Breast Cancer Testing Class Action jointly announced on October 30, 2009 that they concluded negotiations toward settlement of the class action arising out of errors in ER/PR testing between 1997 and 2005. The monetary value of the settlement is approximately $17.5 million.

Breast Cancer Talks Under Press Blackout

FOR IMMEDIATE RELEASE October 16, 2009
FOR FURTHER INFORMATION CONTACT:
CHES CROSBIE, 579-4000
Email: ccb@chescrosbie.nf.net www.ChesCrosbie.com

BREAST CANCER TALKS UNDER PRESS BLACKOUT

In an email sent to clients last week, class action lawyer Ches Crosbie told his clients that the mediator had advised the parties to accept a blackout on public communications through the press until the mediation is done. “He advised this is in the interests of settlement”, Mr. Crosbie wrote, “and we agreed.”

Mr. Crosbie has stated publicly that Eastern Health does not have enough insurance to pay the injury claims.

The personal injury class action is in the name of Verna Doucette, who says in court documents that she has suffered irreversible lung damage from unnecessary chemotherapy and may need to have her lung removed as a result. The allegations have not yet been proved in court.

Doucette will be assisted at the talks by a panel of six other class members.

CHES CROSBIE BARRISTERS
169 Water Street, 4^th Floor
St. John’s, NL A1C 1B1
Telephone: 579-4000 or 888-579-3262
Facsimile: 579-9671
Email: ccb@chescrosbie.nf.net

Province Has Lowest Injury Cost

According to a new study of the human toll of injuries in Canada, Newfoundland and Labrador has the lowest per capita injury related cost in Canada. The total of direct medical costs and indirect costs was highest in Alberta, at $918, and lowest in this province, at $518 on average per resident.

Smart Risk, a charitable group that promotes injury prevention, commissioned a lengthy report entitled "The economic burden of injury in Canada" released recently. The cost of injuries both accidental and intended in Canada per year was reckoned at almost $20 billion.

The leading cause of all injury deaths was not transport related incidents, but suicide - responsible for 3,616 deaths in 2004, according to the report. Transport related incidents, including motor vehicle collisions, claimed 3,067 lives, and falls, most involving seniors, claimed 2,225 lives.

Local Physician Held Liable to Cancer Victim

In a recent medical malpractice case, Arnold's Cove family doctor Peter J. Cleary has been ordered to pay damages to a former patient for failing to diagnose mouth cancer over a nine month period. The cancer could have been treated with minor surgery but progressed to the point where "commando" surgery on the patient's tongue, jaw and chest was required to cure the cancer.

Sixty-two year old Clarenville native Basil Courtney was awarded an amount close to one million dollars for his extensive injuries in a Supreme Court of Newfoundland and Labrador, Trial Division decision released in early July. An amount of $165,000 was awarded for pain and suffering.

Dr. Cleary argued that cancer patients should expect a lower quality of care from doctors in Newfoundland than exists elsewhere in North America. The court rejected the argument (see para. 99).

Mr. Courtney, a pipefitter, had complained of a sore mouth during five visits to the doctor between July 1999 and April 2000. The court found that the physician was negligent in failing to do a proper examination and in failing to refer to a specialist for investigation and diagnosis.

Local Lawyer Receives Mainland Recognition

June 5, 2009

For the first time in its 20 year history, an Ontario trial lawyer organization has recognized an out-of-province lawyer for a prestigious award.

Last week, the 1100 member Ontario Trial Lawyers Association awarded the Hillyer Award for trial advocacy to St. John's native Ches Crosbie, Q.C.

The award is made to an individual who promotes access to justice through "fearlessly advancing the cause of individual rights by the effective use of trial advocacy."

Past awards have been made exclusively to leading members of the Ontario trial bar who "exemplify the spirit" of the Ontario Trial Lawyers Association. The award is made usually but not necessarily annually.

Mr. Crosbie has come to recent national attention as the lawyer for the victims of breast cancer tests in Newfoundland and Labrador which were botched between 1997 and 2005. Similar testing problems have recently come to light in Quebec.

Breast Cancer Inquiry Top Story 2008

The Telegram newspaper of St. John’s put forward the Breast Cancer Inquiry as its top story for 2008, in its end of year edition. Nine other news stories were nominated, but the Inquiry was listed as number one.

The Inquiry, officially known as the Commission of Inquiry into Hormone Receptor Testing, was established by the Government of Newfoundland and Labrador in May 2007 after the Breast Cancer Testing Class Action forced Eastern Health to disclose information which showed a 44% rate of error in hormone testing. The period covered was 1997 to 2005. Hearings ran from March 2008 to the end of October 2008. A report is expected at the end of February 2009.

The St. John’s firm of Ches Crosbie Barristers is class counsel to the Breast Cancer Testing Class Action.

Breast Cancer Class Action Mediation Date Announced

May 25, 2009

The date for mediation of the class action lawsuit over faulty hormone receptor testing has been set for October 28, 29 and 30 in St. John's. Nationally known mediator Hon. George W. Adams, Q.C., a former judge of the Ontario Superior Court, has agreed to mediate the dispute.

Lawyers for the members of the Breast Cancer Testing Class Action and for Eastern Health recently met with Mr. Adams in Toronto. With his advice, it was decided that the original July date intended for the mediation was impractical, given the enormous volume of preparation required.

Mr. Adams has successfully mediated numerous complex disputes including the Maher Arar rendition claim against the government of Canada, the Maple Leaf Gardens sexual abuse claims, and cases involving allegations of systemic hospital malpractice.

A mediator does not decide issues, but rather assists the parties to decide the issues.

More information about Mr. Adams may be found at www.adamsadr.com.

Media Reports Lawyer's Options For Copter Crash Victims

In a front page story, the Telegram weekend edition reported advice given by St. John’s lawyer Ches Crosbie to family members of those who perished in the Cougar/Sikorsky helicopter crash. On March 12, 2009 Cougar Flight 491 hit the ocean with tremendous force 11 minutes after losing oil pressure, killing 17 of the 18 on board.

Mr. Crosbie had posted a blog discussing legal options for family members, and responded to questions from a Telegram reporter. Mr. Crosbie is a well known St. John’s personal injury and class action lawyer.

Mr. Crosbie was reported as saying that the bar on lawsuits under the Workers Compensation legislation likely would not apply. For more, see: Telegram article, Cougar’s Response Tardy?, and Families Review Legal Options in Wake of Copter Crash.

Health Minister Urges Speedy Compensation for Breast Cancer Claimants

Health Minister Ross Wiseman said today that Eastern Health cannot win the class action lawsuit spearheaded by St. John’s lawyer Ches Crosbie, and called on the health authority to speed up compensation.

The Report of the Commission of Inquiry into Hormone Receptor Testing was provided by Justice Margaret Cameron to the Government of Newfoundland and Labrador last weekend, and make public Tuesday. The Report stated that the mistakes that led to retesting of hundreds of samples of breast tissue should not have happened and that communication about the mistakes was botched. The report said the procedures and protocols within Eastern Health for ER/PR testing between 1997 and 2005 were so deficient as to be practically non-existent, and that the system failed patients on every level.

Speaking on VOCM Open Line with Randy Simms, Minister Wiseman said he does not think that Eastern Health is debating that there was negligence or liability. He encouraged the lawyers for the parties to expedite the process of coming up with a figure for compensation.

Part of what the Minister said:

“There is liability and there’s negligence here, and I don’t think Eastern Health is debating that and what you need to deal with here now is how you define the settlement. And I understand that there is a, between the lawyer for the patients and their families here, and the lawyers for the insurance company and Eastern Health have already had a significant dialogue on that piece. They’re looking at a process to help define what that figure should be. I encourage them to expedite the process, I encourage them to get that process moving faster.”

Progress Being Made on Breast Cancer Claims

FOR IMMEDIATE RELEASE FOR FURTHER INFORMATION CONTACT:

CHES CROSBIE, 579-4000

PROGRESS BEING MADE ON BREAST CANCER CLAIMS

ST. JOHN’S LAWYER CHES CROSBIE STATED TODAY THAT PROGRESS IS BEING MADE TOWARD SETTLING HUNDREDS OF CLAIMS ON BEHALF OF MEMBERS OF THE BREAST CANCER TESTING CLASS ACTION. HUNDREDS OF CHARTS HAVE TO BE REVIEWED BY EXPERTS FOR BOTH SIDES. “THIS IS A LOT OF WORK AND IS ONGOING AS WE SPEAK,” SAID CROSBIE.

THE PURPOSE OF THE REVIEW IS “TO ARRIVE AT AN UNDERSTANDING OF THE INJURIES THE PATIENTS ACTUALLY SUFFERED, WHICH IS A COMPLICATED EXERCISE,” HE EXPLAINED. “AS PATTERNS EMERGE, THE INSURANCE COMPANY LAWYERS AND WE WILL ATTEMPT TO AGREE ON WAYS TO SIMPLIFY THE PROCESS,” CROSBIE SAID.

EACH SIDE HAS A TEAM OF CANCER SPECIALISTS DOING CHART REVIEWS.

“ENCOURAGEMENT FROM THE PREMIER IS ALWAYS WELCOME” SAID CROSBIE, “BUT THE MASSIVE AMOUNT OF WORK NEEDED TO SETTLE THIS CLAIM IS ALREADY UNDERWAY.”

“I CAN’T SAY THIS ABOUT EVERY INSURANCE COMPANY” THE LAWYER ALLOWED, “BUT I’VE ALWAYS FOUND EASTERN HEALTH INSURER HIROC REASONABLE TO DEAL WITH. THEY TAKE RESPONSIBILITY WHEN THE CASE AGAINST THEM IS STRONG, AND WHILE THEY DON’T GIVE MONEY AWAY, THEY DON’T NICKEL AND DIME ON SETTLEMENT EITHER.”

Plaintiff lawyer gets five years for bribery

Mississippi plaintiff lawyer Dickie Scruggs was sentenced Friday to five years in prison for conspiring to bribe a judge. Scruggs intended to offer the money to the judge for help in a dispute over $26.5 million in legal fees claimed from mass insurance settlements following the Hurricane Katrina disaster.

Scruggs was indicted in November 2007 together with his son and a law partner after the judge reported the bribery approach and an associate lawyer wore wiretap equipment for the FBI. The group plead guilty in March. The planned payment to a Mississippi county circuit court judge was to be $50,000.

Scruggs came to national and even international fame as one of the lead lawyers in the 1998 global settlement between the state Attorneys General and the tobacco industry. Scruggs and colleagues in Mississippi were awarded $1.43 billion in fees for their work in the 1998 tobacco settlement.

Record $17 million injury award upheld

Canadian Court Upholds $17 Million Verdict for Injured Child

That’s right – a Canadian court has upheld a verdict worth $17 million awarded by a jury to a child who was two years old when he fell out an apartment window and suffered devastating injuries. This largest ever award was made by an Ontario jury, and in a decision released in spring 2008 the Ontario Court of Appeal upheld the award.

Harvinder Sandhu, now 13 years old, was just a toddler when he fell through a broken screen of his aunt and uncle’s fifth floor apartment on Toronto’s Martin Grove Road. The broken screen had been reported more than once to the building’s superintendent.

Harvinder “suffered numerous injuries, including a frontal lobe brain injury so severe that he will never be gainfully employed and will always require supervision,” the appeal court noted. The boy requires constant care.

The Ontario Superior Court jury awarded the plaintiffs $12,936,145.60 in January of 2006. Trial judge Justice Carolyn Horkins awarded and extra $4,182,039.02 in guardianship costs, pre-judgment and post-judgment interest.

The apartment owners raised 12 grounds of appeal to the panel of three Justices. For starters, the jury’s award was $1.336 million more than the plaintiff’s counsel had recommended in her jury address. The jury awarded the highest amount of non-pecuniary general damages permitted by the Supreme Court of Canada at $311,000, $100,000 to each of Harvinder’s parents and his brother under Ontario’s Family Law Act, plus damages for loss of future income at the highest level based on a retirement age of 65. The panel of judges dismissed all 12 grounds of appeal.

The appellant apartment owners also complained that the trial judge had wrongly allowed the entry of evidence of repairs. The appeal court disagreed, stating that the fact that repairs to the screens were made quickly and inexpensively after the accident was relevant to show that the appellants had failed to meet a reasonable standard in keeping the building in good repair or in making reasonable inspections for safety defects.

The appeal judges would not overturn this jury verdict against the weight of the evidence unless it was “so plainly unreasonable and unjust as to satisfy the court that no jury, reviewing the evidence as a whole and acting judicially, could have reached it.” They did not view the outcome of the 2006 trial as unreasonable or unjust.

The lawyer who represented the plaintiffs in the court of appeal said this is the largest personal injury award affirmed at the appellate level in Canada. She also viewed the $100,000 derivative award to Harvinder’s brother, Parminder, “a vindication” because she has long fought for the recognition of the effect of devastating injuries on siblings.

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Ches Crosbie Barristers
169 Water Street
St. John's, NL
A1C 1B1
Phone: (709) 579-4000
Fax: (709) 579-9671
Toll Free: (888) 579-3262
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