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Jessica Fullerton, Nelligan Law

Class action provides anonymity, effective ‘legal vehicle’ in case against fertility doctor: counsel

Wednesday, November 10, 2021 @ 11:23 AM | By Amanda Jerome

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The Ontario Superior Court of Justice has approved an over $13-millon settlement of a class action against a fertility doctor who used his own semen to inseminate patients. Counsel for the plaintiffs stressed the effectiveness of class action as a “legal vehicle” to give people “anonymity, some measure of compensation” and information in a highly sensitive case.

In Dixon et al. v. Barwin, 2021 ONSC 7257, the court explained that the litigation against Dr. Norman Barwin “stems from his decades of work in the field of artificial insemination.”

“In many cases, women were inseminated, and children were conceived, using genetic material that was not that of the correct father. In a number of cases, Dr. Barwin is said to have used his own genetic material,” the court added.

According to court documents, the representative plaintiffs are “members of an affected family.”

Davina Dixon and her husband, Daniel, had consulted Barwin for “help with conception,” the court explained, noting that “Davina was artificially inseminated with what was supposed to be semen obtained from Daniel.”

“Rebecca is the child born as the result of the procedure,” the court added.

However, in 2016, “it was determined that Daniel is not Rebecca’s biological father and it has subsequently been determined that she is a genetic match with Dr. Barwin and various other half siblings who were conceived in the same manner.”

The Dixons launched an action “on behalf of all affected children and their parents and sought to have it certified as a class proceeding.”

The court noted that although the litigation was started it 2016, “the situation became more complex and the size of the problem became larger than originally anticipated.”

Justice Calum MacLeod, writing for the Superior Court of Justice, explained that the “complexity of the factual background and the various individuals who could assert potential claims proved a challenge to the crafting of an appropriate class proceeding and to the definition of acceptable classes.”

“Ultimately, however, the parties arrived at a proposed settlement including class definitions and common issues. I certified the action for settlement purposes in a motion heard on July 28, 2021,” he added.

According to court documents, there were three classes in the certification order: the Mother Class, the “Spouse/Partner/Former Patient Class” and the Children Class.

The common issues, Justice MacLeod explained, were: “a. Did the Defendant owe the members of the Mothers Class a duty of care? If so, did the Defendant breach the duty resulting in compensable damages? b. Did the Defendant owe the members of the Spouse/Partner Class a duty of care? If so, did the defendant breach the duty resulting in compensable damages? c. Do the Children Class members have a cause of action arising from negligence or, in the alternative, pursuant to s. 61 of the Family Law Act, R.S.O 1990, c. F.3 resulting in compensable damages?”

The court noted that “[N]o members of any of the classes chose to opt out and no member of any of the classes objected to the proposed settlement.” Justice MacLeod wrote that “this indicates a very high level of approval and satisfaction with the outcome negotiated by class counsel.”

In approving the settlement, Justice MacLeod noted that “the settlement is fair, is in the best interests of the members of the classes, and in addition the settlement is in the interests of justice.”

According to court documents, the settlement would have Barwin pay “a significant sum for the benefit of all class members without admission of legal liability.”

The court noted that the settlement was for an “an all-inclusive sum of” $13,375,000.

“Taxes, administration, legal fees and other costs will have to come out of this amount, but there will still be significant benefits for each member of each class,” Justice MacLeod wrote, adding that he had “no doubt whatsoever that the settlement is in the best interests of each of these classes.”

The judge stressed that “[C]losure is a benefit for families who have endured the shock, trauma and sense of betrayal of discovering that their genetic heritage or that of their children has been misrepresented and altered.”

“By contrast,” he added, “continuation of a legal proceeding with an uncertain outcome would have prolonged and exacerbated the family trauma in the glare of a public hearing.”

Justice MacLeod also noted that, in terms of value, “it is difficult to assess the fairness of the settlement amount in absolute terms.”

“The fact situation underlying this litigation is not common and so there is no standard against which individual damages can easily be assessed. Tort damages are designed to compensate for losses,” he explained, stressing “[H]ow can the damages suffered by a child who discovers such a situation be measured?”

“After all, had there been a different genetic origin, that particular child would not have existed. Legally, in Ontario under the current state of the law, it is extremely difficult to establish that a physician owes any duty to a yet unborn children when treating the child’s mother,” he added, highlighting in the footnotes of the decision that “there is a powerful dissent” by Justice J. Michal Fairburn in Florence v. Benzaquen, 2021 ONCA 523, which also touches on duty of care.

Justice MacLeod stressed that “[P]roving compensable damages might be difficult, but a child in the position of Rebecca has had her entire life turned upside down by a discovery which profoundly alters her sense of self.”

The judge then asked: “What is the liability of the defendant to husbands of women who believed their child to have been conceived using their own semen or semen from a donor they had selected together? How can the damages be measured for women who were so profoundly betrayed and whose consent to such an intimate medical procedure was vitiated?”

He noted that this case “was a novel case with significant challenges to establishing legal liability and a right to compensation.”

“Had the matter gone to trial, it would have required new inroads into the law in this area. Novel cases are almost always subject to appeal. A settlement ends the possibility of more protracted and expensive litigation,” he added.

The court also noted that in addition to individual compensation, “there will be a sum set aside for Orchid PRO-DNA Laboratories to set up and operate a DNA database for class members who wish to do so to obtain DNA testing during the claims period.”

Justice MacLeod explained that the “additional DNA testing will facilitate class members in making claims, but also can provide them with important genetic information.”

In approving class counsel compensation, the court noted that “counsel had signed a contingency fee agreement with the representative plaintiffs.”

Justice MacLeod wrote that the contingency fee of 25 per cent was “amply justified by the application of the factors set out in the legislation and the caselaw.”

“In this case I am satisfied that class counsel undertook an extraordinary effort in relatively uncharted territory sometimes under intense media scrutiny. It was necessary to establish the facts, craft an appropriate class proceeding, identify and locate class members and engage in complex negotiation with the defendant’s counsel,” he added.

Justice MacLeod also noted that a “significant” amount of time and resources was used by the principal lawyers and the Nelligan law firm in this case.

“The docketed time on the file exceeds $1.85 million at normal hourly rates. This was a very significant investment of time by highly competent lawyers. There can be no doubt that without this effort, the members of the classes would not have obtained the result that I have been able to approve today,” he added, approving the contingency agreement in a decision released Nov. 2. 

 Jessica Fullerton, Nelligan Law

Jessica Fullerton, Nelligan Law

Jessica Fullerton, an associate with Nelligan Law and counsel for the plaintiffs with Peter Cronyn and Frances Shapiro Munn, told The Lawyer’s Daily that the part of this case that stood out to her the most was “the class action as the legal vehicle in a case like this.”

She stressed that the class action “offered anonymity and privacy.” Fullerton noted that, other than the Dixon family who “courageously” came forward as the representative plaintiffs, all the other class members “could be anonymous and maintain their privacy.”

“And that’s really significant because in a typical civil case there’s a presumption that parties are named in full and the courts are really reluctant to move away from that or grant things like a sealing order or for plaintiffs to be identified by their initials,” Fullerton explained, adding that in this case families were at “a really vulnerable point in their lives.”

She said that for many families “the thought of having to litigate publicly, in the courts and in the media, the errors and the breach of trust from a doctor many of these families deeply trusted was really intrusive and the public nature of that would have been an additional harm imposed upon them and their children.”

Fullerton noted that the class has approximately 240 members and the class action “as a legal vehicle” also offered “broader remedies.”

Part of the settlement, she explained, is the funding for is “a DNA database,” which is “open free of charge for former patients.”

“It’s voluntary and the big thing is it’s offline and it’s very private, so it may offer information about medical history. It may offer the potential to find half-siblings,” Fullerton added, noting it’s “really only through [the] class action-type of remedy that that’s possible because it gathers many people together all affected by the same harm.”

Fullerton also said that the most “significant” was the class action was responsive to members and their claims was through “aggregate damages.”

She noted that “there were very significant challenges to whether the offspring in this case had a legal cause of action against the doctor.”

“What aggregate damages let us do is kind of go above some of the legal issues that really entrenched the parties for a long time. So, we were able to go above those things and negotiate a settlement for the class action as a whole without getting into with defence counsel the amount that would be paid to each class and each member of each class,” she added.

Fullerton explained that “almost half of the class members are offspring, so if they don’t have a claim at law against the doctor,” that was “part of the battleground in this class action; the legal basis for their claims.”

Fullerton said that counsel started getting cases regarding Barwin in 2010 and 2011. She noted that there was a development in the case law in “mental harm in intangible injury cases,” which she said is “behind the scenes of this decision.” She noted that a decade ago “there wasn’t much case law that was as favourable as there was when we came to negotiating resolution of the class action.”

“One of the really significant cases, from an evidentiary perspective, was the Supreme Court’s decision in Saadati v. Moorhead [2017 SCC 28],” she said, adding that decision “did away with the long-standing requirement that there be recognized or diagnosed psychological injury from an expert before someone could recover from mental injury.”

“That development did assist,” she said, noting the evolving “law for mental harm and intangible injury cases.”

Daniela Pacheco, Neinstein LLP

Daniela Pacheco, Neinstein LLP

Daniela Pacheco, a partner and senior medical malpractice lawyer at Neinstein LLP, told The Lawyer’s Daily that the Dixon decision is notable because there’s a “very clear recognition from the court of the potential significance of negligence that happens preconception to the children that are born thereafter.”

“The court takes some time to evaluate what it must be like to be the children born as a result of Dr. Barwin’s negligence and how upsetting and difficult that must be,” she said, adding “it’s important to note that there are very real circumstances where people are injured before or during the conception process and then have to live the rest of their lives with those injuries.”

Pacheco was counsel for the appellants in Florence v. Benzaquen, where the Court of Appeal was split on the duty of care owed by doctors to children for alleged negligence preconception. She noted that Justice MacLeod recognized the “tenuous” nature of these types of claims in approving the settlement for the plaintiffs in Dixon.

Pacheco said it’s “unfortunate that the actual question of duty of care was not specifically addressed” by the Superior Court, so the “law of the land” remains the Court of Appeal’s decision in Florence, “which says that these children do not have a claim.”

“I do think though that what it [the decision] is showing us is a very real example of how new technologies in medicine might be impacting more and more people. As more Canadians use artificial reproductive technologies to form their families, what we’re essentially doing is we’re creating a whole group of people who will never have legal rights if something goes wrong in that process. And I think it’s really important that this court at least provided some context about how impactful it can be for those children and might give us some reason to rethink what’s happened in Florence at the Court of Appeal,” she added.

Counsel for the defendant declined to comment on the case.

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