Court File and Parties
COURT FILE NO.: CV-14-511333-00CP DATE: 20200428 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Anne Levac, Plaintiff – AND – Stephen Rose James, Sue-Ellen Solger, Izabella Gerbec, Erin Kostuch, Anita Takyi-Prah, Joana Nunes, Elizabeth Hicken, Marissa Allin, Rachel Schrijver, Annie Michaud, Anna Nudel, Elena Polyakova, Raymund Tanalgo, Jefferd Felix, Jason Foster, Paolo Galvez, Glenn Francesco, Peter Rothbart and Rothbart Centre For Pain Care Ltd., Defendants
BEFORE: Justice E.M. Morgan
COUNSEL: Paul Harte and Maria Damiano, for the Plaintiff Darryl Cruz, Erica Baron, Jacob Klugsberg, Eric Pelligrino, for the Defendant, Stephen Rose James Ron Bohm, for the Defendant, Marissa Allin P. Voula Kotoulas, for the Defendants, Sue-Ellen Solger, Izabella Gerbec, Erin Kostuch, Anita Takyi-Prah, Joana Nunes, Elizabeth Hicken, Rachel Schrijver, Annie Michaud, Anna Nudel, Elena Polyakova, Raymund Tanalgo, Jefferd Felix, Jason Foster, Paolo Galvez, Glenn Francesco
HEARD: April 27, 2020
Discovery of Class Members
[1] This class action involves a claim by patients of the Defendant, Stephen Rose James, alleging that he, along with the clinic at which he worked and the nursing staff of that clinic, is responsible for bacterial infections which they suffered as a result of epidural injections he administered to them. Dr. James brings this motion for documentary discovery and leave to conduct examinations for discovery of a number of class members. He argues that this is a necessity for a proper defense of the claim and is therefore authorized under section 15(3)(c) of the Class Proceedings Act, 1992, SO 1992, c. 6 (“CPA”).
[2] On September 3, 2019, I issued a judgment reconstituting the common issues in this already certified class action. The new common issues were identified in my judgment as:
Negligence
- Whether the Defendants owed a duty of care to the Class to take reasonable precautions to prevent the transmission of health care associated infections (“Duty”)?
- What was the standard of care applicable to each Defendant relating to their Duty (the “Applicable Standards”)?
- Whether the Defendants breached the Applicable Standards (“Breach/es”)?
Causation 4. Was any Breach sufficient to have caused or contributed to clinical infection in the infected patients? 5. Should an inference be drawn that any Breach, in the absence of evidence to the contrary, caused or contributed to clinical infection in the infected patients? 6. Did any Breach cause or contribute to clinical infection in the genetically linked patients?
Fiduciary Duty 7. Whether the putative fiduciary Defendants owed a fiduciary duty to the class? 8. For those putative fiduciary Defendants found to owe a fiduciary duty, what was the nature of the fiduciary duty owed to the infected patients (the “Fiduciary Duty”)? 9. For those Defendants found to owe a Fiduciary Duty, whether these Defendants, or any of them, breached their Fiduciary Duty (the “Fiduciary Breaches”)? 10. Whether the Fiduciary Breaches, or any of them, caused or contributed to clinical infection in the infected patients?
Limitation Period 11. Could the claims of the Presumptively Untimely Claims subclass have been discovered within the meaning of section 5 of the Limitations Act more than 2 years prior to September 9, 2014?
Punitive Damages 12. For the putative fiduciary Defendants, whether there is conduct sufficient to attract punitive damages, and if so, whether punitive damages should be awarded and in what amount?
[3] In bringing the motion to amend the common issues as originally certified, the Plaintiff abandoned her previous theory that Dr. James had an invariable practice with respect to his infection prevention and control technique. The new theory of liability is based not on a traditional causation analysis but on an epidemiological analysis premised on the statistically high rates of the particular, rarefied infections – bacterial meningitis and epidural abscesses – found among Dr. James’ patients.
[4] In my judgment of September 3, 2019, I referred to the Plaintiff’s methodology as “novel”, but found that it provided enough of a basis to pass the test for certification. At the time, I indicated that the place to test the cogency of this methodology was not at a certification motion but rather at trial. That trial has now been scheduled to take place over 5 weeks in February-March 2021.
[5] In support of the motion to revise the common issues, the Plaintiff delivered a number of affidavits and expert reports, including the report of an epidemiologist, Dr. Michael Freeman. Dr. Freeman’s findings rely on facts and assumptions of the following 20 individual class members or potential class members (who have opted out):
Class members: Susan Erika Borrelli Ian Campbell Ann Clark Perry Crippen Michael Glass Bernard Jackson Saundra Kacho Anne Levac Tracy Lynn Loughlin Melanie Riopel Marina Santoro Florence Starr Patricia Tanaka Jessie Mary Turnne
Non-class members: Emidio Carestia Arthur Diaz Edgardo DeGuzman Tracey Martin John Redmond Marcia Wilston
[6] Dr. Freeman indicated that some individual assessments would be required to confirm the number of infections upon which his inferences and conclusions were made. This approach is confirmed in the present motion by the affidavit of Joe Michelucci, a lawyer in Plaintiff’s counsel’s firm. At paragraph 16 of his affidavit, Mr. Michelucci states, “For the purposes of the common issues trial, evidence will be led by the Plaintiff in relation to the infected individuals.” Counsel for Dr. James submits that this statement in and of itself establishes the relevance of the new discovery information his client seeks.
[7] The new common issues relate to standard of care, fiduciary duty, causation, limitation periods, and punitive damages. Resolving these issues using the Plaintiff’s methodology of proof necessarily requires exploration of information relating to individual class members – or, at least, a sampling of class members. The logic of the Plaintiff’s approach dictates that evidence about the representative Plaintiff alone will not suffice.
[8] Dr. James’ expert, Dr. John Conly, has stated that a “complete review of each patient’s medical history prior to onset of any infection” would be required. In my view, the type of thorough causation evidence he is seeking will not be an issue in the common issues trial. At issue in the upcoming common issues trial is whether, on the macro level, the Plaintiff can establish to an appropriate level of proof that the patients of Dr. James contracted their infections due to Dr. James’ practices. That will require establishing that a sample of his patients had infections caused by him.
[9] Only after the common issues trial, when it comes to the actual participation of any individual class member in any award, will individual causation of each and every claimant be necessary to determine. For the upcoming trial, what is relevant to the common issues, and what Mr. Michelucci was referring to in his affidavit, is evidence of association, not causation. The “novelty” of Plaintiff’s proposed methodology is that at the common issues phase the Plaintiff will present epidemiological evidence rather than individualized evidence as a means of proving causation on a class-wide basis.
[10] Counsel for Dr. James seeks documentary discovery of all of the individuals listed in paragraph 5 above. He does concede, however, that the proportionality principle applies here to limit the number of class members to be called for examination for discovery. He therefore seeks to examine a sample of the class members, not all of Dr. James’ former patients. Dr. James’ counsel’s position is that at least some selected examinees need to be questioned in order to test the assumptions on which the Plaintiffs’ epidemiology experts’ evidence is based.
[11] Dr. James’ counsel seeks to examine for discovery the following class members: Ann Clark Ian Campbell Melanie Riopel Saundra Kacho Anne Levac
[12] In Anderson v. St. Jude Medical Inc., at para 11, Cullity J. stated that the scope of discovery is a “semblance of relevance”. In civil litigation this generally starts with the pleadings, although in a class proceeding common issues trial it is really the more fine-tuned delineation of the issues in the certification judgment that governs. Here it is the newly certified common issues that will define the subject-matter scope of any further discoveries.
[13] For the most part, the information required by the Defendants to test and counter the Plaintiff’s common issues case is contained in the class members’ medical records. The Defendants’ experts and counsel will need to know the actual diagnosis and medical history (both before and after the infection) of a sampling of the class members in order to test and answer the epidemiological evidence presented by Plaintiff’s expert.
[14] I am advised by counsel for the Plaintiff that the class members’ medical records have already been produced in their entirety. Apparently, there are some 15,000 pages of medical records for the Defendants’ legal team and expert witnesses to review. Accordingly, it is difficult to identify any further production of medical records that would be relevant to this case.
[15] At the hearing I asked Dr. James’ counsel for an example of something beyond medical records that he would expect to be produced. He indicated that he would be asking for pharmacy records for the class members. He also stated that he would be seeking decoded OHIP summaries for each of them. In addition, he submitted that his client has a right to class members’ information on matters relevant to their visit to Dr. James’ clinic. Such information might indicate the existence of an alternative cause of their infection – e.g. whether a neighboring property they had to cross contained a contaminant or breeding ground for the infection they contracted.
[16] Plaintiff’s counsel advises that the class members are persons who were hospitalized as a result of having contracted serious infections. To the extent that they were prescribed antibiotics or other medications, these were administered intravenously or otherwise prescribed to them while they were in the hospital. There is no need for records from an actual pharmacy, as that will simply duplicate what is in the medical records already produced.
[17] As for the decoded OHIP records, Plaintiff’s counsel advises that records are only kept by OHIP for 7 years, and so now go back no further than 2013. The class period for the common issues trial ends in 2010. Accordingly, there do not appear to be any decoded OHIP records that could be produced that are relevant to the claim.
[18] If there is anything left that is relevant and that does not simply duplicate what is already in the medical records that have been produced, further documentary production related to the new common issues questions may be sought from the class members listed in paragraph 5 above. As already indicated, pharmacy records that duplicate information contained in the previously disclosed medical records, and decoded OHIP summaries that are not within the class period, need not be produced by these class members.
[19] As for the request to conduct oral examinations for discovery, I am concerned that this action is a long outstanding one. At a previous stage it has already been to the Court of Appeal and back, and it has had a trial date adjourned for further amendment of the certified common issues. A new trial date has now been set, and I would not like to see it delayed any further. Moreover, the Defendant nurses – some of whom are apparently uninsured – had counsel in attendance at the hearing of this motion and they expressed their concern for the expense of this protracted litigation. It is apparent that several more rounds of oral discovery will only add to the financial burden of the case.
[20] In addition to the problems of delay and expense, I am cognizant of the fact that, unlike the representative Plaintiff, the class members did not actively bring this litigation themselves. While they are parties in the sense that as class members they may participate in any ultimate award, they should not be put to a test of fire in oral examinations for discoveries if that is not truly necessary.
[21] In my view, while questions need to be posed to a sampling of class members, oral examination for discovery of those class members is not necessary – other than for the representative Plaintiff, who has already been examined on the original common issues and can be re-called to be examined on the new common issues. Generally, Dr. James’ counsel is out to acquire information from the class members, and is not aiming to test the credibility of those individuals. Other than the discovery that Dr. James now seeks, they have not made any statements or given evidence in this case (other than what is in their medical records) and so there is no credibility to test.
[22] Moreover, individual class members may not on the spur of the moment know specific answers about their own medical condition or history. If oral discoveries are conducted of them, some of the information sought will inevitably lead to undertakings by the class members being examined, which will lead to even further delay. Although counsel for Dr. James seeks an oral examination for discovery of the selected class members, the court has discretion under s. 15 of the CPA whether to grant discovery of class members and generally has authority to limit discovery to written form in appropriate cases: see Ozerdinc Family Trust v Gowlings, 2015 ONSC 2366, at para 15 (Master).
[23] The class members listed in paragraph 11 above (except for the representative Plaintiff), may be examined for discovery by written interrogatories submitted by Dr. James’ counsel to Plaintiff’s counsel. Those class members are to answer the interrogatories in writing, and are to do so honestly and to the best of their ability on the information at their disposal. Hopefully, they will provide what answers they can in a way that does not necessarily invite follow-up questions.
[24] In conducting written discovery of the selected class members, Plaintiff’s counsel can pose questions about possible alternative sources of infection they may have encountered. As always, however, proportionality is the governing principle. Thus, the class members may not be questioned on the details of their entire lives in hopes of finding something leading to an otherwise unknown source of infection.
[25] That said, the one thing that all class members by definition have in common is that they each visited Dr. James’ office to receive their treatment from him. The class members can, therefore, be questioned about their visits to Dr. James’ office, what they recall of his hand washing and other IPAC practices, what nurses they encountered there and what they recall each nurse doing, the environment of Dr. James’ clinic and its surroundings, when they noticed that they had an infection, and whether they had epidural injections at another clinic and by another doctor. Questions on these issues are relevant to the common issues as defined in my September 3, 2019 judgment. To the extent that information covered in the medical records is not unnecessarily repeated in doing so, such questions may be asked of the sampling of class members selected by Defendants’ counsel for written discovery.
[26] The new common issues also contain questions related to the allegation that Dr. James breached his fiduciary duties to the class members. Dr. James’ counsel points out that this will require additional evidence from at least a sample of class members as well. As an illustration, counsel for Dr. James proposes questions such as: When did the patient develop an infection? Whether and when did the patient tell Dr. James about the infection? What did Dr. James do? To the extent that information covered in the medical records is not unnecessarily repeated in doing so, questions on these issues may be asked of the selected class members in written discovery.
[27] I am not ordering any discovery, documentary or otherwise, of any non-class members, including those listed in paragraph 5 above. They are non-parties to this action. To obtain discovery of them Dr. James would have to move under Rule 31.10 of the Rules of Civil Procedure.
[28] Given this mixed result, there will be no costs of this motion for or against any party.
Addendum
This motion was heard by videoconference while regular court operations are suspended due to the COVID-19 pandemic. Upon the courthouse reopening to the public, each party shall file with the Civil Motions Office a copy of all the material they delivered electronically for this proceeding, with proof of service, and pay the appropriate court filing fees.
Notwithstanding Rule 59.05 of the Rules of Civil Procedure, this Order is effective from the date it is made, and is enforceable without any need for entry and filing. In accordance with Rules 77.07(6) and 1.04, no formal Order need be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party to this Order may nonetheless submit a formal Order for original signing, entry and filing when the Court returns to regular operations.