STORY: "Lawyers spar over whether class-action into Motherisk drug-testing scandal should go ahead," by reporter Rachel Mendleson, published by The Toronto Star on October 12, 2017.
GIST: "Motherisk’s
flawed hair-strand tests tainted thousands of child protection cases
across Canada, but was every parent who tested positive for drugs or
alcohol potentially harmed in some way? How much is that harm is worth?
And what’s the best way to determine who should pay? These are
among the complex questions that were debated in a Toronto courtroom
this week in the high-stakes battle over the fate of a proposed national
class-action seeking millions in damages for families affected by the
litany of failings uncovered at the Hospital for Sick Children’s
Motherisk Drug Testing Laboratory. Whether the class-action will
proceed is now in the hands of Superior Court Justice Paul Perell, who
reserved his ruling on Thursday. His decision will play a key role in
shaping what promises to be years of legal wrangling in the fallout from
the problems at Motherisk. Already, some 275 plaintiffs are named in a
series of individual lawsuits against Sick Kids and the major players at
the lab, the court heard. “This class-action is for the thousands
of families who have received an apology but no compensation,” Rob
Gain, a lawyer for the plaintiff, told the court, at the outset of the
two-day hearing to determine whether the case meets the bar for
class-action certification. The proposed class includes anyone who
had a positive Motherisk hair test between 2005 and 2015, the period
during which a government-commissioned review by retired judge Susan
Lang concluded Motherisk’s results were “inadequate and unreliable” for
use in legal proceedings. (Close family members of those who tested
positive are also included.) Gain
argued that a class-action is the best way to ensure access to justice
to a vulnerable group of people who suffered a shared harm due to
Motherisk’s faulty tests, ranging from parents who briefly came under
the scrutiny of a child welfare agency to cases where children were
removed permanently. “When you’re dealing with the child
protection regime . . . and there’s a test result from the lab showing
drug or alcohol abuse, it is not discretionary what a Children’s Aid
Society does. They must act,” he said. “That act is common to the entire
class.” However, that rationale was rejected by the defendants,
who include Sick Kids, Motherisk’s founder and longtime director, Dr.
Gideon Koren, and former lab manager Joey Gareri, who argued that a
class-action is not appropriate because the circumstances in each case
are highly individualized. Koren’s lawyer, Darryl Cruz, told the court that his client “obviously opposes certification.” Cruz
said a negligence claim may be valid in some individual cases, but only if the plaintiff proves there was a false positive Motherisk result,
and that result led to negative consequences. “The link between
what happened at Motherisk and these outcomes . . . is absolutely
crucial, and not simple,” he said. “In each and every claim, one needs
to consider, who are the various players? How do they relate to one
another? How does the outcomes flow from the various players?” Sick
Kids lawyer Kate Crawford said the hospital is “very willing to engage
in discussions about compensation with the appropriate people in
appropriate circumstances,” but does not accept that there are “any
common issues” that could be litigated through a class-action. Although
much of Motherisk’s hair-testing was performed at the request of child
welfare agencies, some of the lab’s tests were ordered by physicians for
clinical purposes, which shows the relationships between the lab and
the proposed class members are “different in every case,” Crawford said. Complicating
matters further, the lab’s practices were “not consistent” and changed
over time, as did the internationally accepted standards for
hair-testing, which evolved as the science advanced, she said. The
proposed lead plaintiff is a mother whose access to her son was
“repeatedly interfered with as a result of unreliable (Motherisk) hair
tests” from 2009 to 2012, according to the plaintiff’s written
arguments. If the class-action is certified, the members of the
class, however it is defined, will have to choose whether they want to
pursue individual claims or join the class proceeding. The hearing
did not deal with the merits of the case. In a statement of claim, the
plaintiff argues the defendants were “negligent in (their) operation and
supervision” of Motherisk, and were responsible for the consequences
that followed. In his statement of defence, Koren denied the claims,
arguing the tests were “accurate and reliable for their intended
purpose” of providing clinical information “relevant to the medical care
and safety of children.” In a joint statement of defence, Sick Kids and
Gareri also disputed the claims, and said that if custody decisions
were based on the tests, which they denied, children’s aid societies
were responsible. Queen’s Park appointed Lang to probe Motherisk
in late 2014 after a Star investigation exposed questions about the
reliability of the lab’s hair tests. Sick Kids initially defended the
reliability of Motherisk’s testing, but reversed course in the spring of
2015 after the hospital learned it had been misled about Motherisk’s
international proficiency testing results, and closed the lab. Sick
Kids CEO Michael Apkon issued a public apology in October 2015. Koren
retired in June of 2015, and is now working in Israel. An
independent commission is now probing individual child protection cases
in Ontario to determine whether Motherisk’s hair tests had a significant
impact on individual decisions to remove children from their families."
