CITATIUN: HLtni Met-tamed SoluLions Tue, 20]? UNSC 2140' CUURT FILE NUNIARID CCIURT 0'17 JUSTICE Lisa r'ttlene Hunt, Ryan HunL, Tina Marie Wells, Pamela Warts, Kevin ?Fonts, The Estate ot'?her?Lynu Boudreault and John ti'hesley Prince Plaintiffs ?ant] Mezenteo Solutions Lne. e.o.b. as Marehese Hospital Solutions, Mezenteo Ine. e.o.h. as Marehese Health ISate, Medhuy Windsor Regional Hospital, London Heath Seienees Centre, Lakeridge Heath, Peterhtn'ough Regional Health Centre and Regional Ilealth Authority 13 {Saint John Regional Ilos pitaljl Defend ants Harvey T- SLTosherg, Q.C., Sharon Strosherg, Miehael Peerless and Sabrina T.o1n1Jardi, for the Plaintiffs Domini Clarke, For the Defendants h-Tesenteo Solutions Ine. e.o.h. as Marehese Hospital Solutions and Mezenteo lne. e.o.h. as h'larehese llealth Care F?e R. TTth-ikeu and Lisa S. Lutwalt, for the Defendant Med hug,r Corporation Rate A. Eran-lord, for the Defendants Windsor Regional Hospital, Lakerid ge Health, Peterhorough Regional l-leaith Centre and Regional Health Authority Fl (Saint John Regional Hospital) r?tnita M. for the Defendant London Health Seienees Centre HEARD: anuary ltl, 2t} 1 under the (Jess Proceedings stat, I 9.93 RIDING UN WIQTIDN TU HF CLASS Page:2 VIE-H?ltll?hr?l .: Nature the Motion ill By order dated Clctobcr its, ?little, this action was as a class proceeding, on consent, for the purpose oi'isettion'iont. the plaintiffs allege that the defendants were negligent in prepi-u?ing, combining, mixing, compounding, packaging, selling, purchasing andfor administering certain drugs during the period commencing liobruary ti, EUIE and up to and including April 2, Bill} [the Class Period). which resulted in the representative piainti rs and other members of the primary class receiving a concentration of chemotherapy medication that was less than the concentration that they were prescribed (?the Dosing incident?). The primary Class Members hayc all been identi?ed with speci?city ruai include all persons, or their estates, who attended at the defendant hospitals {set out below} for treatment during tho Class Period and were administered the affected chemotherapy drugs. r?t second class, de?ned as the ?Family Class?, consists of the ?tting partner; spouse, ehiid, grandchild, parent, grandpa-dent or sibling of a Class Member. the representative i.isa .?triene i-iunt, Ryan Wesley IIunt, 'l'ina Mario Wells, Pamela Wt?irts, lieyin Wot-ts, The Fstale of Cher?Lynn Uoudrcault and John Chcsicy Prince, now move pursuant to s. 13.5" of the Class .t'I?r?oecetfir?igs' girl, fill-3'2, SH. [992, e. {in for an order approving a settlement of the action, which was reached in August Eiliti, because they say it is fair, reasonable and in the best interests of the members of the class. in a separate motion, Class Counsel move for an order approving their i'ees anti disbursements, which are claimed in an amount that is loss than the amottnt they would otbenyise be entitled to rcceiye, pursuant to the terms oi? contingency i'ee agreements that they entered into with tho roprosont'atiyo piaintii'l's. Class Counsel is comprised of a team led jointly by two senior class action lawyers in the Preyince of Dntario, specifically, Mr. Harvey Eltrosberg, QC. oi' the TI.lir'indsor, lOntario law ?rm Sutts, LLP and Mr. Michael Peerless oi' the London, Ontario law firm i'vlciionzic Laito Lawyers i.i.F (McKensi [also]. his Sharon (a member of Sutts Strosberg HP) and his Sabrina Lombardi {a member of Motion-sic ital-re) are key members oi? the Class Counsel team. The motion to the settlement is supported by the defendants, Moaontoo Solutions loo. e.o_b. as Marchese Hospital Solutions (?Wisrehosc?), Mcacnteo inc. c,o.b. as Marehese Health Care, Medbuy Corporation 1 lr'indsor Regional Hospital, London Health Sciences Centre, Laltoridgo Health, Regional Health Centre and Regional Health r?tuthority Li- [Eiaint .ioim Regional Hospital}. Paeez? Beth the Publie Guardian and Trustee and the {jl'liee ef the Childrenls Lawyer have been previded with all til' the materials tiled in respeet ef the marina te appreve the settlentent. Neither l'dltEt-t a pnsitinn with respeet tn the relief requested. F'netual ?vei'v law ill] [13] [13] ?41 Llefere addressing the speeilie terms til' the settlement, I will brie?y detail the Desing and the ensuing liligatinn- Subsequent te tlte Llesing lneidenfs disenvery, the Legislative Assembly ef Untarie Standing [lemmittee en Seeial Feliey {the ?Standing Cetmnittee?) meved tn initiate a study and investigatieu e'f several aspeets ef the ineident, ineluding ?any impaet en the nearly 1,2130 patients in Dntarie whe a ?awed er diluted drug during their treatments.? During its inquiry, the Standing lIZ?emntittee heard a substantial ameunt nl' Lestimeuy {which eentprises ever ELLILHJEJ pages ef transeripts] dun'ng the pf April, May, .iune, September arid tJeteber, ElJlTi, ineluding evidenee lirem key members ef the defendant erganisatinns. It alse ether evidenee and submissiens in writing, and eernntissiened a repert ['rem l'Jr. .lalte Thiesseu entitled ?at Review affine {leaning-y {sinner?Driving Inertial?!" rt reytter't fer the Safaris Minister? qf Hertr'r'h and Lang" Term (fare, dated 12, In April Etll?l, the Standing Llemmittee tabled its awn reperL The enntent ef the Standing Cemetittee?s repert and the 'l'hiessen whieh will refer te in the eeurse ef these reaserts, previde inipertant emttest and haeltgreund te the issue an this ntetien. The defendant, lvledbuy, is a health eare ?greup purehasing erganiaatinn" .i?imeng ether things, Med buy werlts under eentraet with its members, whieh inelnde healthier-ire ergtmizatiens, individual hespitals, greups el' hespitals and shared serviee erganizatiens, te faeilitate the purehasing and prepare-meat nl' grinds and seiyiees required by its members. fit the times maten'al tn the aetien, the hespital defendants were mernhers ef the h-?Iedbuy UH). 'l?he plaintiffs allege that the lvlarehese eentt'aeted with the hespital defendants, threugh Medhuy, tn ?admin" (?prepare fer hespital use?) the aetive ehernetherapeutie drugs gemeitahiue and Essentially, drugs were in a pewder ferm, then mised with saline and delivered tn the hespital defendants in Iv bags, te be administered tn patients. The Standing Cilnl?lliiEE=S repert indieates that in Etll 1, lvtedhuy issued a Request Prepnsal fer the sterile preparatien ef drugs tineluding and gemeitahhte} fer hespital use, and eventually, a list {if speeilie serviees, ineluding gemeitabine and eyelnphesphamide admising, went te tender. Three entities, ineluding lvlarehese, made submissiens in respense. Ultimately, Marehese the ltighest seere threugh a eemprehensive searing system and was awarded the relevant eentraet, in the late fall nl' whieh was eventually esteeuted in February 2tll2. The ermtraet 1'51 I'l?'l 11711 ll 31 Page:4 ealled ibr Marehese te preyide with different prt'idnets, ineluding genteitabine and eyelephesphainide. as admixed. Ultimately, gemeitabine and eyelephespharuide as admixed by Marehese, were presided tn all ef the hespital defendants. althettgb the timing at when the indiyidui-tl hespitals f'n?st began te use these admixtures varies. Regienal Tiespital was first. starting in l-?ebruary Peterhert'iugh Regienal Tiespital, where the Desing hteitlent was ultimately disem-?eretl, was last, starting an Mareh Elli the Standing ILirhnritittee repert indie-ates that en hilareh 21], it?ll 3, a pharmacy teehnieian at the Pelerbertittgh Regitutal Health Centre ebseryed that labels an the 1's? bags eentaining the gemeitabine selutien tltat were supplied by hitarehese, did net elearly speeify the final eeneentratien ef the in the selutien. {it'irttrersel y, that in [tmnatien ltad been speei?ed en the labels affixed tn the bags presided by the erganixatieu tltat supplied the hespitals with admixtures piier te Marebese. Sbertly thereafter, it 'as determined that the labels en the eyelephesphamide admixture IV bags prepared and delivered by Marehese, alse failed in elearly speeify tlte fntal eeneentratien ef the drug in [lte saline tin. Further irwestigatien reyeal ed that hath ehemetherapy drugs were eyerly diluted with saline, when admixed. in Dr. Mieltael Rieder, an expert in the field at pbamuteelngy wbe was retained by the representative plaintiffs, h-tarehese used pre?Iilled saline bags in prepare genteitabine and eyelephesphamide admixtures. Generally, bags eeutaining saline are net water imperyieus, and yer time a small ameunt el' saline ?uid transverses the exterier ef the bag and eyapt'irates. as a matter bf eeurse, manufaeturers ef preutilled bags till the bags with a greater yelurne ef saline than is indieated en the label. Htiweyer, Marehese admixed the gemeitabine and eyelephesphamide selatiens en the basis that the yelume stated en the labels was the precise winters in the bags, resulting in the preparatien and administratien el' ehemetherapy admixtures that were mere dilute than diselesed by the labels en the bags they were eeutained in. In ether wards, patients a lewer eeneentratien at the subjeet ehentetherapy drugs. than preseribed. sit the request ef the Standing Cemrnittee, a eemprehensiye resiew et' the Desing Ineident was undertaken by Dr. Jake 'l'hiessen, and direeter ef' the Uniyersity ef ?i?i?aterlee seheel el" pharmaey. l'Jr. Thiessen was tasked te lead an independent review ef ?quality asset-anee in the presineeis drug supply ehain?. in his repert, Dr. 'l'hiessen traees the timeline bf releyant eyents, identifies the number ef peeple al't'eeted by the Tilesin Ineident, and sets eut his te present a similar ineideet Ii'em in the future. In the eentext ef this metien, all eennsel rely en the Thiessen repert. in Dr. 'l'hiessen, artteng ether things: a] The Uesittg Ineident when Marehese Hespital Selutiens empleyed a 111 the preparatien eftlte ehemetherapy drugs that t'ailed Le adequately eeinpensate fer an ?eyerflew litett'ir" in the supplier?s nemtal saline bags. Dr. 'l'hiessen estintates that the ayerage aetual eyelepbesphamide eeneentratien, supplied by Marehese and administered te patien ts, was it] pereent lewer than Ii?tl [an Page: 5 stated en the label. Fer gentcitabinc, the average actual supplied by Marchese was estimated te be ?t percent lewer than stated en the label. b} {Tine twe hundred and twe [1,202] patients were affected by the [lesing Incident. Of these. Mitt? were under?descd with eyelephespl'iamirle, 191 were andcr?descd with gcmcitahine and tear patients received beth Incdicatiens. lt'erty at" the patients were pediatric cases. All but 30 patients were being treated I'nr cancer. c] the affected patients were treated at Regienal llespital {290 tetal patients}, Health Sciences ICentre (691 tetal patle?tS]. New Saint Jehn Regienal iIespital (133 tetal patients}. Laltcridge Health (37' patients) and Peterbereagh Regienal Health Centre [1 patient}. d} There is nn evidence ef any 1nalicieas er deliberate ?drag sparing dilutien? hy h-?larchese, in preparing:T bags ef cycle phespharnide er selutiens. e} three alerted tn the Fleeing Incident, the hespitals rnade persenal centact with each ef the affected patients, and the affected preducts were placed in quarantine. Bach-up plans were put in place an that cyclephespharnide and genreitabine ceult'l be ebtained ii'tnn alternative seurccs. as patients inter-eat any .retiertntert etns'es' et' Ne changes were matte by the hepatitis tr:- Ct'ctss Freehand}: pt'rmrreet chemethernpy treatments. the garter-titty stint pins any er rrtere rinse-intensive mtatt treatments, ripen discern-wry Electra;1 t?atteats eenttaaect with their regatnr treatment [Emphasis added] The evidence nn this mntien indicates that the tetal number ef patients affected by the Basing Incident is 1:194, net 1,202. The discrepancy arises frein Lenden Health Sciences Centre initially denble ceunt'tng eight peeplc. when it tallied the number at its patients att'ected by the Desing incident. 1 tlr'ith respect tn the treatment iinplicatiens fer patients affected by the Desing Incident. l'Jr. Tbiessen states, at p. 2t} ef his rcpert: _._Cancer Care Untariels recerd was reviewed regarding all its preyisienal treatment pregrarns {including adjuyant, curative nr palliative) inyelying twe drugs. (if these patients that cernnienly receiyc was at their treatment plans include the additien el' ether drags {cembinatien therapy). Fer these cen'inienly receiving 96% ef their treatment plans use a cenlbinatien ef drags. 'l'aiten at face value, this implies that, in the inajerity ef cases. the under-desing impact dnes net rest exclusively upen enc drug. the prehability, tl'icreliire, in ceinbinatien drug therapy. that a single drag l'aettit: at the stated desing shertfatl= has had an twerall serinns eJ'l'eet is smalls altheugh Pagei? one caimot establish unequivocally that its: impact is completely without rislt. For the under?dosing bears the possibility of a greater hnpact in roughly can of the patients because it was the single therapy. Yet. for the two raider?dosed drugs. under-dosing might he considered to lie within a tolerable margin of error ordinarily permitted in therapy (1.53., dial-Jail]. The above about the rclatiyely low degree of under? dosing. along with the prevalence of cornbinatirm drug use. offers a perspective that is compatible with the oncology decisions at the hospitals. the evidence collected at each of the al'l'eeted institutions showed that medical oncologists generally did not plan any I'urther or more dose?intensive adult treatments upon discovery of the incident. Patients would simply continue with their regular treatment program. [21] In its report: the Standing Committee generally endorsed Dr. Thiessenis recommendations. rmd. consistent with his findings. the Standing Committee did not ?nd that the Dosing Incident was the result of any deliberate acts. by any of the defendants. The Litigation [22] The representative plaintiffs. Lisa Hunt. 'l'ina 11'i'iiclls and Pamela lilv?oris received chemotherapy all'eeted by the Dosing incident during the Class Period. as did Cher? Boudreault. Tier estate trustee is also a representative plaintiff. [23] Ryan Hunt is Lisa Hunt?s husband. Kevin Worts is Pamela Worts" husband. John Prince was Floudreault?s spouse. Each of them is a. member of the Family Class. [24] The statement ol' claim alleges that the negligence of Marchese and Medbuy caused. or contributed to. apprtisin?iately cancer patients in Untario and New Brunswick (all of whom were receiving cancer treatment at one or more of the defendant hospitals) to receive lower than prescribed dosages of chemotherapy drugs during the Class Period. and that the lower dosages may have resulted in negative treatment outcomes. ?ts a result. the rcIn?csentativc plaintiffs claim cotnpensr-itory damages. punitive damages antli?or a resti [uii onary rented y. [25] The defendants deny all of the allegations of negligence that are made against them. They have strenuously cle Fended the action on the basis that there is no evidence demonstrating a clinical impact or physical harm to the Class Members. as a result of the administration of the diluted chemotherapy drugs. Further, they posit that the Class Members cannot meet the ?significant evidentiary threshold? required for a court to award damages for "mental distress or upset?. resulting from the Dosing Incident. 2t3] This action was certified the purpose on Uctobcr 13. ?2016 and notice was sent to the Class Members advising them of the general terms of the settlement Fage:? agreemenn their rights with Tespeet L11 1.1pting?uut el" the class their rights be 1.1l1jeet tn the settlement and the date, time and ieeatien ef the settlement appre 1ttal hearing. The deadline L11 upt?nut 11 t' the litigatinn and the deadline tn submit ebjeetiens tn the appreyal ef the settlement were beth speeified as it. 1111a rt tntat nf seven pntentiai Class Members esereised their right te eptunut and ene has sinee npted baelt in. 1?1 tntal nfrittl' nbjeetinns were by the Claims Administratnr. Cine 11bjeeti11n was withdrawn, hellfire the appru 11a] nintitni. At the time they submitted their 11bjeeti111?ls, et-teh 11bjeet1n' had the 1'i t11 ?upbeat? the elass Had they de?e se, they weuid net be bnund by the terms 11f the settlement, if appreyed. Appresimately. 95 pereent ef the Class Members did net ?le an ebjeetien tn the settlement er eleet tn ?apt-nut? nf the The Terms at the Settlement Agreement [28] T11 August ill] 53 a?men1en1ndun1 11t'11nderst1-u1ding? was reaehed between the parties anrl a ??nalized settlement agreement? was eseeuted en r?tngust 4., Ellie. the essential terms ef the settlement agreement preyide: I The defendants will pay the tetal amennt nf fer the benelit at the eligible Class Members. I the tetat amennt nf will be paid tn eligible Class Members if these whe have net epted-eut ef the titigatinn} n11 a prn-rata basis. the eligible Class Members are net required tn enmplete a elaiins term 111' talte any 11ther p11sitiye aetinn tn payment. Instead. the Claims Administratnr will [inward settlen'ient L11 eaeh eligible Class Memben en a prune-titre basis. I H11 amennt is payable 11n bebal t't1t' the Family Class. I The delimdants will pay the sum 111' liltl?tlt'l Ibi? the benefit 11f the Untarin and New Brunswieh health insurers. I The defendants will pay the a1nn11nt 1.111. ef ?Netiee and Claims Adntinistratien?. I The defendants will pay the atl-ineiusiy'e amennt ef e11 aeenunt nf Class C111111sel fees, disbursements and appiieabie I In tetat, the defendants will pay the amennt ef I There is ne resersien. ef any pnrtinn nf the settlement tn the defendants. In the event that any of the funds payable under the terms nf the settlement are unelaimed at the end nf the Claims r?tdministratinn prneesa they will be paid 11111 en a try?pres basis, tn a quali?ed eharitabte dnnee seleeted by the plaintiffs and by the enurt. l?l?i] Page: 3 Ir ltvlarehese will pay one half of the set out above and lvledbuy, on its own beltaif and on behalf of the defendant hospitals, will pay the other hall'. - r?tlthough tlte settlement is made without admissions ol' liability by any of the defendants, its terms eompel ivledbay and to tile statements with the eottrt attesting to ?intmnal reviews and improvements? the}: have undertaken as a result ol? the Dosing lneident. (?rose statements were provided as patt of tlte settlement approval motion reeord in the form of affidavits of representatives of I'viarehese and ivIedbujr tespeetiveljr. 1whieh i will further address below.) Ir The settlement agreement is subjoet to final approval at this eourt. (in behalf of the representative plaintiffs, Class Counsel submit that: the settlement agreement is the produet of extensive arms-length negotiations between esperieneed counsel; its terms are fair. reasonable and in the best interests at" the elass, as a whole; and Class Counsel reeommend the settlement. Their reeommendation arises from the available evidenee; the law that applies to the elaims ot' the Class iviembers; the liltelil'tood ttl' tn' Teeoverp; and the extensive burdens and expense of litigation, inehtding the rislts and aneet'taintv assoeiated with protraeted trials and appeals. The}: are proud of the settlement and they submit that it is a fair= reasonable, eost etleetive and assured method of resolving the elaims of eligible Class Members, in a manner that is eonsistent with the best interests oftlte elass. The Law Applicable to Approving Negotiated Settlements in Class 13tt l3ll l'32l Pursuant to s. ?39(2) of the CPA, in order for the settlement of a elass to be binding on all parties, it must be approved by the eourt. in order to approve the settlement of a elass the eourt must be satisfied that in all of the eireun'tstanees, the settlement. is fair, reasonable and in the best interests of the elass The parties seeking approval have the onus to demonstrate the proposed settlement meets the standard for approval: see Habits v. San Life Assurance t'fo. offlanada, [1993] DJ. No. 1593 (Gen. Div}, at paras. shit}, atfd {Haiti}, 4] UR. {Ed} at para. 99, leave to appeal refused, 19% Ho. (?Habits Latter v. MyTravei Canada Iiatirtays ate, Etllfi 92, 3112 one. 194, atpara. 9. in determining whether to approve or rejeet a proposed settlement, the eourt does not set as a mere ?rubber stamp? of its terms However, it is not the eourt?s ?tnetion to substitute its judgment Ibr that ol' the parties or to attempt to re-negotiate a proposed see it"anes- v. stir Transatdi'". Ian, Eti?fi CanLJl Eleltll at para. The eourt usL approve or rejeet the settlement in its entiretv. The eourt eannot ?impose" different tertns or re~draft the settlentent to aehieve a result it eonsiders more desirable. While the eourt majt,F identify areas ol" ot'tneem, whieh may set as a barrier to approval, it eaanot mandate that the parties enter into ?t'resh negotiations? and produce a substantiallv different negotiated result. in determining whether to approve a settlement, the eourt, without making fittdings of faet on the merits of the litigation, must. esamine the settlement in the eontet-tt of the 1 Ln: U1 ?l a Page: El hefere it._ ineluding a review at the allegatiens underlying the elaims: the del?enees advaneed in respense and any ehjeetiens tn the settlen'tent? tn determine whether the is ?fair, teasnnable and in the hest interests til the elass: see Baxter is. Hartline}; General}: [haul-Ti 4115?} at para. ll]. Te he applet-ed, a settlement Lines ttet have tn aehieve a ?standard rif'petjeerirm? but it must he ?jfaa- and reasanahte". The ennrt enenuragee, and puhlie peliey ti-wnurs, the teen] utien l" eetuplea' litigatien tln?eugh eatenramtse. There is a strung initial presumptinn ts'hen a ptepesed settlentent that is negatiated at t-trtu?s length by eeunsel fer the elass, is presented fer eeult appreval. 'l'lte eeneept ef*?1easenahleness? is an ehjeetive standard that allews far a range at? pessihle reselutiens. 'l'he reasenahleness at any settlement depends an the t?aetual trtatris the It less than pet-I?eet settlement may he in the best interests at these all'eeted it, when it is eernpared the alternative al' the rislts and eusts nt' uugeing and uueertain litigatinn. There litreE print tn appreeing a prnpusetl settlement, the eeul?t ntust he satisfied that the patties seeking appreral hate dentenstrated that its terms fall within the ?sane er range ef reasenahleness?, in the eireuntstanees ef the pattieular ease: see t?arsaas Canadian Real C'rassSaer'ertr (1999):, 4U 13.13.13. 151 SILL at paras. ail-Tl] {?f?anraas Na. Danes Sea Life .?tssra-aaee {Ia {with} ill} UR. (are 429 teen. east, at pp. ass?sax area {lass}, 4 an. {as} at (ens: leave tn appeal refused, l?JEl'tl SHEA. He. 372 (?Smiths Na- Nantes: at para. 'l'he fellewing faeters are arneng these that a eaurt ma; ennsider= tegether 1.s-ith any nther relevant eireuntstanees, when detemtining whether a settlement is ?1an reasnnahle and in the best interests at" the elass": The likelihuud ul't'eemrery tn' I The ameunt and nature eldisetwer}; eeideuee ur inaestigatian; I the prepesed settlement terms and ennditinns; I the and eaperienee ale-ennsel; I 'l'he future expense and likely duratien at" litigatien; I the at'nentral parties; il'anp; I The tt anther elehj eeturs and nature ul'uhjeetiuns; I The presenee at?arm?s length hargaining and the ahsenee I lnt?ermatien enneeyin tn the ennrt the dynamies at; and pnsi ti an taken hp, parties during negatiatiuns; I The degree and nature all euutntunieatiuns by enuusel and the plaintiftiwith elass mernhers: during litigatinn. Fags: Sac: libertarian ill'irimrrm Ramsay t'fnmicirr Eillti UNSC 2622, 131 ELK. {did} as? (Div. at para. 22; Dasha Nn. i at para. Pra'scus Na. 2, at paras. TIJE. 'Ihc iactm?s it'i shay-c are lint a ?rigid act :il'c?ta?a" that in List ha wcighc?d actually in inatanc-s. It'liil??d; thcy saws as ?guitlclincs? in evaluating the rct-iscnahlcucss cf a In cf any particular casc= it may hc that scnic critcria arc wcight, scinc critcria arc 11st satisficd. cr may hc critcria: i?tirscas Na. 1. at para. T3. In the rcastuls that I will apply lcgal principlcs cut ahcyc, in nl' tcrnis cf and balancc cl? 'liictnra hct'crc ms. in dciug ac= 1 will sunuuariac ccrtain pcrtinns nl'thc cantainctt in the vacant an this ti'uititm. will alsn rc [hr in ctiunsniia suhniissinns manner in which available cyidaiica inlim?ns: thcir thcil' yicws {Jf the litlgt-tti?? risks faced by plaintit?f's; and likclihnnd cf nr success. I dc so only cf caatnining the fairness and and it is in cf class. as a withnut rushing ?ndings cf fact an the merits ct' litigaticn. Rcasnns far Dispcsiticn [3 Ei] {Til It1 1i In applying piinciplcs act cut ahcyc, I that in this casc strnugly faycur as its 1 will caplain Cicunscl hays idcntiticd ?signi?cant litigaticn rislcs? that plaintitl?a arising frnni naturc cf ayailahlc and naturc cl" law that applica Ln thcir claims. in Class Ccuuscl?s yic?w, ahcutd litigaticn ctintinuc, plaintiff'se liltclihn?d {if t?CCt?NGl?y is ltlw- As a result; thny the which was ai'riy'cd at thrtiugh a lnugthy prim-ass til'ai?m's i an: satisficd that and ayaitahlc tn [Haas [Trains-cl was aul'Eicisnt tc tn rustic an in timncd cyaluatinn tit~ rial-ta and lilt?l'ii?ltmd nl' success at" tlu?: litigalitiri; [ti sngagc inliu?msd sadism-ant iicgtitiatidus; and tti prayidc l?f??ncd rantin'unsndatirnis ahtiut the tilitht: ?lihtiugh [initial had ruit cnuductcd at the. Him: the sc?ttl?mcn?t was significant ahnut Erasing Incidcnt. and its impact an the treatment at the paticnts was avaiiahlc tn. and by. Class t'i'nunscl including: findings and cpininns cf Dr. pages of transcripts cf hy ltcy play-cm during Standing Cnnuuittcc?s inquiry; publically availahlc dncunicntaticn prnducsd during the inquiry; scicnti?c litcraturc; and t'ipininns nl' sacspticnally quali?ed cap-arts, Dr. Michac] (an napcrt in phamiactiingy) and Th: Kalhiccn Fritchal'd {an Expert in in additinn, Class Cnunscl had cl' Fat-mat and cnnsultaticns with capurts. rcsulls tilh which art-J said ti} ha ctmsiatcut with Dr. ?ndings and tilt: tiplniuns arm's. Rind-st and T?i'itchurd [43] [44] L49 Pagerll I am alse satis?ed that Class Ceunsel has ptevided the eeurt with sellieient evidenee te permit an ebjeetive and independent assessment ef the fairness ef the settlement, in all ef the eireumstanees. The terms ef the settlement previde tnenetary henelits tn the Class Members and nett- menetary benefits designed in eentiuu and ensure that Medhuy and Marehese have medifred their behaviettr and praetiees, te aveid a future event similar tn the timing lneident. The settlement prevides fer a very straightferward and errpeditietts teethed ef el' the settlement te Class Members tltat dees net require any aetien en their part. ?my unelaimed settlement will he distributed, eyrpras, te a eharitable erganizatien. 'l'he settlement dees net permit reversien ef any ef unelaimed settlement te the defendants. r??Lll ef the representative plaintiffs the settlement's apprevt-tl t-md express their belief that based en the available evideuee? the litigatien will Liltely net if the aetien is tried. Beth Class Cettnsel and the representative plainti?b state that the prepesed settlement delivers henelits tn the Class Members that are etherwise net available te them. The representative plaintiffs believe the settlement is fair and in the best interests el' the el ass anti eaeh e?f them has Class Ceunsel te see]; its appreval. Netiee el' the settlement appreval hearing was published in the Hatiertal Pest and fr'lebe and Mail 3 pested en websites maintained by beth Class Cettnsel and the netieefelaims administrater; sent direetly te Class Members fer whem eentaet was previded by the hespital defendants; and ??e?tnailed" te anyene whe prevideti an email address te Class Ceunsel. ln tetal~ mere than LEEU netiees were e?mailed er mailed direetly te Class Members. Sinee the publieatien ef the netiee ef the settlement appreval hearing, Class Ceunsel have eeinmunieated with ever 4st: Class Membersh the rnajerity el" whem espress appreeiatien and suppert fer the prepesed settlement. Originally, ebjeetiens te the settlement were ?led; ene ehjeetieu has sinee been withdrawn. Altheugh will eensider the ebjeetiens; in detail, later in these reasens. generally ebserve that eaeh ef the ehjeeters helds an henest. and sineere belief that the settlement is net fair, reasenahle er in the best interests ef the elass. l-lewever= when they are eensidered tegether with all eftbe ether relevant faeters, whieh suppert apprevaL I de rtet ?nd that the ebjee-tiens, either individually er eutnulativelyj previde an adequate basis fer etmelttding that the settlement falls etl?tside eftite ?tame el'reastmableuess?. 'l'herelhre; despite the ebjee-tiens, I am satis?ed that, in weighing all el' the eireumstanees and relevant eensiderntiens, the settlement falls witltin the eperable zene ef reaseuableness and. it will be appreved. Belew: I will eaplain the reasens fer my ?nding and elaberate en the ['aeters whieh are ef mest signifietntee in determ'tn'tng this metien. liUI [51] [52] Page: 12 Risks lesseeiated 1arith Litipa?en and The Lil-:eliheed et' REEHVEFWSIIECESH Class Lleunse] eandidly submit that the plaintil'l's time "very serieus?, if net ?"insurmeuntable": litigatien risks in this They say that at trial is estremeltr deubtlitt and meat unlikely. They submit that the available evidenee and the applieable law will impair the plaintiffs abilitj,r te any damages, it the settlement is net appraised. 1 will esplain. In her affidavit, bis. Lembardi epines that ?Witt-tear it arms, In sees: eerti?teniea an eerttesteri heats start titer? in meae?n'tsnr?rt tr} rt eemmerr issues trim.? rrnrir?ei' .e assistant? judgment firtefr'rmf. Willard tetra rt greet dent rgfirirrta and treated invasive greet rieni ef- rr?ss?. Eihe states that in emit-ins; at that etmeiusitm: Class Ceunsel have eensidered the pmeedtn'al and litigatitin rial-rs inbetenl in the aetien including: a} the state t'tl'hli?lE eemnten law rear-reeling liersenal injury and negligence; b} the risle that the eettrt weuld net ?nd in tat-eur at the plaintiff's en ene er mere ei the ptepesed eetnmen issues; e) the risle that ?individual issues? weuld be deemed [e have materially te the eireumstanees t'it?indiaidual Class Members; d} the risk ef ef the ?learned intermediary" det?enee: based en the preseribing deeisiens made in the eentest the individual patients unique ?risk-?benetit prefile? and-"er the l'ailure el' physieians in lil?tip?l'h? sereen and meniter patients; and e) even in the event that the plaintiffs were in all phases at the litigatien,~ the plaintiffs were aware that the delendants eeuld tile appeals in respeet ef multiple issues; thus resulting in a eensidet?able delay in eetnpensati en lin' Class Members. Ms. Lembardi alse depeses: Given the faets that emerged as a result el the ltitanding Cemmittee?sl inquiry: whieh have been eenliimed by ether experts: the reality is this litigatien eeuld net eentinue. Absent this Settlement Agreemenh there is an ether er better euteeme fer the Class T's-leathers in these eitemnstanees. in his subntissiens; Mr. Peerless raised similar eeneeres. In his view= based en the available eridenee, the Class Members t?aee a ?substantial litigatien rislr? arising, in part, t'rem their inability te establish that the}? are entitled te eempensaters' damages, in law. Umineusiy, he submits that if the litigatien eentinues, the is ?deraned?. In part= that is beeause netn-?ithstanding their fermidable efferts te de sis Class C'eunsel have been unable te des'elep any espert pharrnaeelegiea] er eneelegieal evidenee that the diluted desages ef eltentetheraps' drugs that the t?Tlass Members had a preirable elinieal impaet en the t'iuteerne et' their respeetiire treatment. lie identi?es the absenee ef litil uh 59 Page:13 Such aa nne nl' the that I'endera the plaintil'i'a? liltelilteed ef SucceSS. Litthintta- 1th'hilc I accept the validity at Mr. Peerleaa? atthmiaai en, the pmpeaitien that the adminiatratittn dilated cheinntherapy metlicatinn, nu multiple eceaSinnS. did net rcSult in a preyahle clinical impact tn the euteeme ef naticntS? treatment Sccma. tn a degree, tn he ceunter?intuitiye. after all. the McmherS were Specific drugS at Speci?c det'egea by their treating Prcaumahly, thnae Specific deaach were judged, hy the prcact'ihing pl'lyaiciana, Ln he ?required fer the uptimal t1 Ii alteeilic- iypea and Stagea nl' cancer with Whitlh the individual h-l en'lhera pteaen Led. lt iS Lu understand the palienLa ailec-Letl hy the Deming Incident and nthera, can reaatm that it a deaage that war; [e l? percent leSS than the actual prescribed dnaage? at a chemethert-tpy drug waS suf?cient fer treatment nurneacS, then that deaage weuld have been preSerihcd, at that inStanec. Uilutien nf the draga reSalted in the patienta receiving a Smaller deSagc than preacrihcd. ThereI'ure, nne can appreciate hew the patienta affected by the ?eeing Incident and nthera; cauld in Lnitiyely arrive at a aitlcetely held Subjective that the adminialt?atittn el' diluted cl?lm?nulhetapy [ll'ngt-i; tan a repeated haSiSJ TeaLtlteti in a negative en the Outcome of their tTeatntenL; and they may rhettn'icaliy t1ueatiu11 ?Haw canid thef?inre ta receive the?th rieange rgf'medtentien, tn: prescribed net t'eSeit in a negative n'eatmem entenme Many at" the ehjectienS are premiSed, in part, an that type at intuitive rcaaening. Such reaatming ta it tluea net term the legal basis 11 pen which the ain Li t?t'a? cl ahna are Lu he deteiniined, an the metitS. InStead, in erder tn ehtain an award at Liz-mtagea, the law cempelS the plahttiffa ta peeve, teenage evidence, that the lC'laSa MemberS Suffered {at will Suffer} a farm ef injury at leSS that iS cempcnaahle, in law, and cauacd lay the failure ef the te act in with a Teaannahle standard ef care, in circumStanceS in which the defendants uwed the plain Li t?l'a a legal duty ef care= te an act. AS Cnunacl there are very Scrieua rialtS that the plaintitl'a will net he ahle to discharge their burden ef pree? in that regard, at tn'al, [hr at leaat reaaena. Firah the at? evidence catahliahing that the l'ltnaing incident reanlted in a clinically preyahlc impact an patient nutcnmea. Secnnd, eaiating law decS net fayeur leceyery fer damagea lin- ?paychelngical harm?: in the ahSence ef nreef cf a ?recngniaahle payehiatrle i will addreaa each nl'lhnae ctmcet'na= in turn. .?thacnce nt? Evidence Eatahliahing that the ?eeing incident ReSulted in a Clinically Freyahlc Impact en I'aticnt DutcemeS ln their evidence and Suhmiaainna nu thia mntiuu; [Itntnael eapteSS their Strongly held cenccm that aa a tea-alt at the ayailahle evidence, the plaintiffs face a virtually I?ill Page: 14 insurnuntntahle challenge in proving that the Dosing incident clinically impacted outcome l' patients" treatment. ivtr. Peerless points to the lindings set out in the Thiessen report (the relevant portions of which are reproduced above]. as an illustration of the laclc of scienti?c evidence causally associating the Dosing Incident with adverse consequences to patient l-Te indicates that although the content of the 'l'hiessen report and the Standing Committee's report impacted Class Counsel?s views on the likelihood ol' success of the action, their ongoing efforts to ohtain espert evidence supporting the plainti?'sl claims continued after the reports were released. In that regard, Mr. Peerless advises that he has personally consulted with a number of pharmacologists and oncologists across Canada, on hath a formal and informal basis, without success. Further, Class Counsel have obtained reports on the medically expected result ol? the Dosing Incident on patient outcomes, from both Dr. Michael Rieder, an espert in and Dr. Kathleen Pritchard, an expert in once-logy. l'l'l addition to their reports, both have provided allidavit evidence, which was tiled on this motion. Dr. ltieder and Dr. Pritchard hoth present with and impressive credentials within their respective lield ol' espertise. Their opinions eseniplify the difficulty Class Counsel esperieneed in establishing an evidentiary record supporting the proposition that the Dosing incident resulted in a provable clinical impact on patient outcomes. I shall address each opinion below. (ii Br. Rica'cr l?il ['53 +54l as Together with his report and atlidavit, have had the heneiit of reviewing Dr. litieder?s tilpagc Fires, which details his vast clinical and academic experience in the area oiphannacology. will hriell describe his quali?cations. Dr. ltieder holds a medical degree and a in clinical pharmacology. He is a qualified clinical phannacologist with an espertise lbcussed on ?severe and life?threatening adverse drug reactions?. He is a pro lesser in the Department of Pediatrics, Physiology, Phannacology and Medicine at the University of Western Untaric and Professor and Chair of the Division of Pediatric Clinical Pharmacology at Children?s Hospital ot' Western Clntario. He is a member of the Division of" Clinical Phannacology and Toxicology at the University of Western tit-nario. He is also a pro l'essor and chair oi" the Department of Pediatrics at the University ol' Western lUiotarie and Chief of Pediatrics at Childrenls Hospital, London Health Sciences Centre. Dr. Rieder serves as a Scientist at the Ftohards Research institute and as an ?Associate Scientist? at the Child Health Research lnstitute. lie was awarded the Slat. Chair in Pediatric Clinical Pharmacology at the University of Western Clntario, where he has also heen named as a ?Distingui shed Professor?. In addition to his teaching and research responsibilities at the University of Western t?lntario, Dr. Rieder is a consultant to Health Canada in the area of ?adverse drug reactions?. The is the recipient of numerous awards recognizing both his work in clinical [tit] l?iil [59] Pagerl? and the eeutent nf his publications. He has [imr banks, 32 hen]: ehapters and mnre than 23d peer?reviewed mauuseiipts, inelttding a nuniher nl' exphn'ing the satiety ni'ehemntherapy. lClass Linnusel retained Dr. t~tieder tn prnvide an expert npininn with respeei tn the ?eit'trtertt impact at armies in the Hf ettentetherepy that were Lttseeverert in rt entirn?t at 17,292 patients in New Bt't.trt.rwte.l: and ftnterte wire were taster; treated rateteptiespttanitde and lu fetranslating:t his epinieu, Ur. Hieder reviewed the 't'hiesseu repert, tegether with a number nfrelevaut seieuti?e puhlieatiens iu the areas at eueelngy and In his repert, Dr. Rieder explains that ?eyelephesphauiide? is an alhvlatiug agent?, eeunneuly used in the treatment whieh enuverts tn the aeiive ferut nf the mnteenle nnee in the patient?s hndy. {lett'leitahine is a pyrimidine antimetahnlite ntteleeside Finlh drugs are administered Hath drugs are supplied by their tnanufaeturer as a dry pnwder that must he in saline, in erder tn be administered. in this ease, the en'nr" nee-tnred when a hull: was prepared using ?lire?tilled saline hags" rather than "empty hugs?. An erreueens assumptien was made that the vehnne et" saline stated en the pre??lled bags was the preeise velntue aetually in the hugs, whieh was net the ease. Saline ?lled bags are net entirely water iutpervinns and, ever time, a small atuenut ef ?uid trausverses tn the exterinr at the has and evaperates. tn impreve the ?shelf-life? at" the pure?tilted bags, tnaunfaettu'ers rentiuely ever?ll the bags with a vnlurue nl" saline that is greater than the stated vnlnu'ie en the hapfs lahe]. ??tlvertitl? is a widely industry praetiee. In this iustauee, nwiug te a failure te aeennut fer saline nvertill, when the built reennstituted the ehemntherapy agents were prepared, they were mere "dilute? than labelled. this a result, the ultimate desages that were administered tn patients were pereent less than expeeted lin' genie-itahine, and in ll:l pereent less that] expeeted l'nr eyelnphesphaniide- Ur. Hinder epines en the issue at? ?i-vttettiet' seven tn ten pereertt ts ttkeiy have at ettnteetty imprint an the treated with the drugs gnestinn" as is my ennsidered expert epinitni that while the incident in tptestien was preventahle and wilheut questien eaused distress and ennsiderahle anxiety ameng the patients iu1paeted, it wenld net he assneiat?sd with a elinieally? relevant inlpaet an the uutenme nf eanesr ehemetllerapy?. [Emphasis added. In arriving at his epiuinu, Dr. Rieder eeusidered that the tnajerity et" patients treated with the diluted desages (and essentially all ef the patients treated with were treated with mere than nue agent. 'l'here Fare, he states that the till lT-il Page:l? under?desing nt' tme drug may have been, in part, cempensated by the presence {il' ether highly patent chemetherapy agents in the regimens administered in patients. in addititin, Ctr. Rieder indicates that c-tuTent rinsing regimens agents are asseciated with censiderable variability in ?the earnest ef'e'rttg that is riettvet?ert tn the target cancer?. He identi?es a number el'reasens fer that variability, including: faeters in?uencing the ultimate ?tissue-specific distributien? ef the drug. enec administered intraveneusly {such as the drug?s ewn chemistry, pretein binding within the patient?s bt?idy and drag systems within the bedy}; variable lhcters assnciated with the actitrn til the drug nnee it is distributed; and variable lite-tars assnciated with clearance cf the drug via the patient metabe] ism. ter esplaining the ?censiderahle vatiahility in the Lineage {it the drug, as administered, that is ultimately delivered tn the target cancer", Dr. Rieder epines that, ?Ch-en that the tetrt?er-riestsg wee tn the range at? te ti' percent this weahi' he the that is ettrrestty experienced in heat practice eitheer care eveteeheseherehte nee? tit} Dr. Priteherrt [75] [76] Tegether with her repeat and at'lidavi t, have had the benefit ct" reviewiu Dr. lititchardis lid?page Carrtestest Vitae, which details her estensive clinical experience, academic and clinical investigatien at", and research in, encelegy related matters. I will previde a brief ef her nuaii?catiens belew. Tir. .T'ritchard is an academic medical encelegist specialising in the care ef patients with breast cancer. She is currently a. Member ef the Active Iviedical Sta? at Ilespital Centre and Cancer Centre. She is a full Piefcsser in the Department ef Medicine at the University ef 'l'erente. She has substantial training and practical caecricncc in the fields at internal medicine and medical eneelegy. In the past. she practised as a general medical encelegist at the University ef 'l'erente and served as the Head ef the Breast Centre and Head ef the Divisien et? Medical tineelegy and Hematelegy at Cellcge Hespita]. Shejeined Sunny-brim]: Health Sciences Centre in 193? as the Head el? Medical tinctilngy and later and l-Tematelngy, where she was subsequently appninted as the Head cull Clinical Trials. Alter serving as an Assistant and hsseci ate Prel'esset at the University ef Terente, she was appeinted as a Fall Prefesser in 1994. She has pres-'inusly acted as Chair and Ce?Chair ef the Breast Cancer Site Cireue fer the NCIC Clinical Trials lCn?eup. She remains active in that greup as its Past Chair and as a Ivlembcr ef many engeing Clinical 'l'rial She is a Scnier Scientist cf the Research institute and Divisien ef Clinical lipirtcmielegy. She has chaired anti ce-chaired the Early Breast Cancer 'l?rial Lists Celiaberative Creep, an intematinnal gretlp tl'aat cendacts at all trials til' adj ttvant breast cancer therapy. She alse served as a member til the Heard cull Directurs at the Canadian Breast Cancer Page: 1? Foundation Dntario Division, of the ?nterlcan Society for Clinical theology and of the Canadian Fireast Cancer Research initiative. Since lit?i'ii she has continoonsiv held peer-reviewed grants as a principal and co? investigator. She has published more than peerurcviewed papers. Since ?till 4, she has been recognised as ?one ofthe one percent most cited to litterit'ct'ae, worldwide?. She has heitl a number oiiscnior positions relating to ?leadership and cLinieal trials in the care oi" breast cancer". Most recentlv, she held positions as the ivlcdical ilncoiogy Department Divisional of Medicine, University nl' Toronto and Medic-til Director of the Cintario Clinical litioolt?igg,i liroup {Uniario based clinical ill a] group}. in arriving at her opinion with respect to ?fire likely on jittii??'i ot't's't'ttg ?ora recount gerrtettoht'tte to the range rat's-even percent and cyetopttosphotat'o?e in the range often pet'eertt?, Dr. Pritchartl ?rst csplains that ?to general, the way to which citemott?rteroov dosing is carried out is qttite arbitrary?. iviost dosing are assigned on a ?per rnetrc squared bod}- surface area? basis {height divided by weight squared}, wl'iieh is a ?.roatewt?tot inoccat'ote calcatottott?. t?ttlditionaliv, ?o?t?w'ent citatgv rtt?e Through dif?t?et'tt? bottles in rt'i?et'eot wove". The oliicacy of various regimens is derived by averaging out those cl?l?ccts, overall, and, as a result ?the exact tlosiogfot' is it somewhat orbitrotyprocess to begin with". in her report, Dr. Pritchard indie-ates: 1. According to the Thicssen report, oi' the 1,152 adult patients affected bv the dilutions, were given cyclophosphaniide {excluding the four patients who were prescribed both e3clophosphan1idc and According to the 'i'iticssen report, of the treatment plans for patients who received included other drugs (combination therapv} and ?therefore the Flirt? t'etl?ttot?tort W?t?iit?i he to the os- ser?t'oes' os? if genteitohnte was the only drag given?. Additionally, 96% {lancer [Tare Untaritfs treatment plans that involve cyclophospitaniide that drug in combination with other chernothcrapc atic dr ugs. 3. in her eaperience, all patients being treated with gemcitabine are not being treated for ?cure?. As a result, Dr. l?ritehard states ?it n; sat-ear we to believe, rhea, that redaction of ea in doses eo-ttloT o?bct their? outcomes oner soon! often o?oto toot i-voat?ti s'ttppot't each a concert-r?. 4. She believes that a signi?cant percentage ol' the patients affected bv the Dosing incident and treated with c_vciophospbainide, would have done so in the contest of receiving adjnvant titetapv of breast cancer. in the case oi" patients that presented with 111etastatic breast cancer, she opincs ?i tt?oaht percent re?ection to ovelooi?tospitomtrfe r'tt s?ttet't tt?eot their ttitt'otote outcome." lii'l [as as Page:13 5. fit the peint that et'eiephesphamide is used in a regimen in adjuvant therapy et? hreast eaneer. it is tvpieally ene et? twe er tt'tree drags given in the tirst seetien til' therapy= whieh is then inllewed by a high rinse till' a tasahe- .?ts a result, she npines ??irts, it seem the! er Hit-hi rrdriart't?teit in. state ef- werdri he unlikely as Finally; she ennel tales: it is dilliL?Ltlt tr] eernrnerlt em this while issLLe mere de?nitively details el' eaeh til' the patients, their diagneses and the setting in whieh the}: were heing treated hat I eeuld net streteh my imagination te a grasp ef wemen with hreast eaneer where wenld feel that ene eenld elearljr state that the rednetien in dese ht: ttl?lfs et? evelephesphamide, er 7% genteitahine wettld aFIhet their ultimate in any substantial way. 'tillietltn?seJ 1were tine tn tip a randnmixed elinieal trial {if saeh a redaetien in therat?t}t the trial have he he very large and te the heat ef my ltnewledge such trials have never heen earried ent. There are lilrely alsn same patients in the eyelnphesphainide treated grenp whe wenld have regimens sueh as CIIDP {evelephesphamide deseruhiein, eneevin, and prednisene) rituaan fer treatment ef Seine at these regimens weuld he palliative intent fer seme intermediate made CHUP wenld he given with enrative intent. Hewever= denht that the redaetien in eyelephespltarnide ent?j; hy let?s: er less weald have alleeted ultimate eatermtes. Unee again: I heiieve that trials that erimpare stteh i'eLtLtetinn in rate nl' 4 drugs tn I'Ltll dense therapyr in these settings Lin net exist and that it wealrl he very dil'?eult te preve a de?nitive ehsnge in enteeme hssed en this seat efreduetien in dese. The tipininns ?rs. Rieder and Fiiteharti are eensistent with Ms. iemhardi?s evidence and Mr. Peerless" snhmissiens aheut Class lCerinseli?s dif?eultjt in ehtsining expert evidence snpperting the pesitien that patient enteemes were negatively in?ueneed their ef me dilated ehemetherapv drags. tJther expert are said te have yielded similar results. lI'mther, l'vts. Lernhardi testi?es that despite her el't'erts, she has net aWare elk any seientilie evidenee indicating that the rinsing lneitient impaeted patient tittlemnes I'v?lt'. Peerless t'ihserves that: apart [turn this aetien, the nnly ether in relatinn tn the rinsing l'neittent was enlnmeneett the tit' Hrttee Harte. Mr. Davie eye-lephesphainide as part at his ehemetherapy treatment at Lenden Health Seienees Centre. Class Cennsel advises, and the evidenee establishes. that plaintiff?s eeunsel in the Davie aetien has een?rmed that up evidenee was develeped, in the eente?at at that aetien, indieating that the Desing lneident aft?eeted the enteeme at Mr. Davie?s [34] [351 [35] [till [33] Pagezl? treatment. Although hh?. Ilavie?s estate originally objoeted to tlte settlontont of this the objeetien was withdrawn before the approval motion. In the oontest of tlte foregoing, and without making findings on tho merits, ant satisfied that Class Counsel hold a reasonable and well-founded eonoern about tlte litigation rislts that arise from the laolt of available ovidonee that the llosing Ineidont resulted in a olinioal impaet on the amenities Members" treatment. The Law Rospooting of Compensatory Damages for Harm Class Counsel posit that in tho absenee of evidonee establishing that tho Dosing lnoident had a provable olinioal impaot on patient outoomos, tho only potentially oompensahle injuries sustained by tho tllass Members are founded in the ?psyehologioal harm" they sustained as a result of notilieation that they were alleeted by the Dosing lnoident. To that regard, Class Counsel submit that there is a ?very serious ris that although the Class Members sustained psyehologieal harm {in tlto fornt of distress and attaiety}, on the available evidonoe, the type of psyohologieal harm sustained by the ?vast majority of tlto ntembers of tlte olass? is insuffioient to meet the legal threshold to prove that they suffer from a ?roeognizablo psyohiatrie illness?, whioh is neoessary to reoover damages for psyehologieal harm. Counsel for the defendants eo-ho that submission. Class Counsel refer to the result in Heta'e Loser-Edge Health (Surya, Bill tltitla 55, lot tilt. {Ed} 4U2, to illustrate both the applioation of the ?reoognisahle illness? threshold in the onntest of a olass prooeeding, and the litigation risk that the threshold poses lot the Class Members in this prooeeding- i Heals involved two olass aotions against the respondent I.altoridge Health tloqnti'atioti and two physieians, arising front inoidonts in whioh a signilioant number of people were ospesed to two ltaltet?idge patients afllieled with tuberculosis The 111 Henley did not allege that they oontraoted TH as a result their esposure and, in faet, they all tested negative for the disease. Instead, they alleged that they suffered psyohologioal. harm in the form of ?mental anxiety, suffering and distress" booauso they were notified by pablie health authorities that they ltad potentially been exposed to patients with lit. the plaintiffs admitted that the harm they sufleted fell short of a ?teeognizablo psyehiatrie illness?. The main issue on appeal, addressed whether the harm the plaintiffs suffered gave rise to a elaim for legally eompensohle n?rmmge.r, in tho eontost of a negligenoe aotion. Tn determining that it did not, the oourt held, at para. as, that the evidence before it fell short of demonstrating that tho plaintiJl's ?stillered harm of sullioient git-why and duration to tptalily for eompensation. The harm revealed by the evidenee was not ?serious trauma or illness? that amounted to more titan ?upset, disgust, satiety, agitation or etltor mental states that fall short of injury? or that was ?serious and prolonged and rising above the ordinary annoyanoos, anxieties and fears that people living in sooiety routinely, if sometintes reluotantly, aeoopt.? [39] l'itUl l?i'll [911] [an [94] l95l Page: EU the standard fer the rceeyery ef damages fer harm referenced by the ceurt in Heatsy is censistent with the standard articulated by the Supreme L?eurt cf Canada in r. Cardigan ef?medrr fact, Etitii?i Silt: 27", [Eiltliij 2 RACER. 14. rifter ebserving that it was net fereelesing, "'enec and fer all?, the pessibility efa change in the fermulatien ef the illness? Lhreshetd, the ceurt in Heats}: held, at para- {35, ?The law quite preperly insists uptm an {th eeLive thresimld tn sereetl sue-h claims and in refuse eentpensatien unless the injury is serieus anti prelenged.? Ceunsel alst} reler it: this enurt's deeisitin in Parties v. ri?r. Wet-treaty [fetiege Herrith Sciences Centre, Edit? 442Tl where the uncertainty in the law eeneeming the receyery ef damages fer psyehelegieal harm was alse censidcred in the cement ef a class preceeding. In that case, diseeyered, threugh an internal audit ef its infectien eentrel practices. that between December tilt-tit and August 21303, equipment used at its facility te perferm trans-rectal ultraseund prestate biepsies, was net disinfected tn the degree required. epted te change its practices far future patients and gave netiee tn apprenimately 9 3 past patients that: the n'iethnd used in clean the biepsy equipment may net have- been adequate tn eliminate the transmissinn nl' viruses such as hepatitis and and the risk {if virus transmissien was estrenteiy law; he eases ef infectien had been reperteti', and they were being netified eut ef an abundance ef cautien. the patients were alse effered espedited bleed testing. A el ass aetien was etnnmeneed en behal l' el' the patients. W'ill] tile pessible eaeep?tien cf ene individual, nene ef the class members were infected as a result ef a biepsy precedure. Instead, class members? claims were ?based en the distress asseeiated with the news that they might have been infected with a lethal rims and that they might haye passed that yiius en te their wives er partners": see at para. ti}. Stumybreelt eensented te certifying the aetien as a class but net fer the purpese ef settlement. Instead, it defended the aetien en the basis that the representative plaintiff had net suffered a less because ?in the absence ef a diagnesed iniury?, ansicty, stress and wen-y are net eempensahle injuries, in turt. Ultimately the parties negetiated a settlement ef the class prececding en the basis an all-inclusive payment ef $1.2 miltien by the defendant, fer which they seught eeurt apprm-el. Iri appreving the prt'ipesed settlement, Ferrell .I. states, at paras. 43?49: The affidayit material ?led an the metien fer settlement canvassed meet ef the lee-let?s that the etuut must etmsider in determining whether tr:- er disappreve a settlement, and while I have censidered all this material, te my mind amengI the mere impertant t'aeters are that the settlement agreement was reached by experienced eeunsel after vigereusly centested preccedings in which bath sides cenfrented reasenably streng cases and a difficult legal questien l'il?l Will [ice] Page:2 abnnt the scnpe nl' rectiyery Ibr harm than] nets-ens sheet: and sheet the quantum el'cenrpensable damages. if any. A matter: fer approval cf .1 settirerrerrt is net the place interpret as spells the inn! client the entertainment harm and at! that cars er penises need as: saint is that the Supreme fears cf Carmen?s rieeirr'crr r'rs a. Cni?gaa cf Canada Lat, {2'3th .2 (1R. ill-sf is grerma'sfer defame silent tire law an cerapeascriea fer psyciretegicrrl harm. 't'his dccisicn= which was released seine ycars alter the aetien was perhaps, presents mtire fer the success til' the class members' case but beth sides were eeni'tdent in their cases and they have new reached a settlement witheut cenceding the merits ef their eppenentis eesitien. [Emphasis Ceunsei submit that the result in Hadley. which was decided after iterates, further selidiftcs the litigatien risks asseciatcd with the Class Members claim fer the receycry cf damages fer "'esycheiegicat harm?. in this instance. I run mindful that the duratien ef the harm petcntially suffered by lClass Members in this may be greater than the duratien ef the cpcrablc csyehelegical harm in Hartley er Pirates. where testing cenclusiy?cly revealed an adyerse physical Ie the respectiyc class members. as i will set cut be-ltiw: many cf the tibieetnts in this case indicate that they experience en geing anxiety ahead the pntential ['Ltture impact ei'the ntising incident cn their prtignnses. Class Lleunscl submit that while that type ef stress and ansiety is understandable; it remains that in the case ef nearly eycry Class Member; there is nn eyidence that the IJnsing incident caused a ?recngniaable illness?; and i'ecnyety is thereiibre, net attainable- in the ctintest [if this ntetien: the eeurt?s teie dees net extend tn determining that issue. rm the merits. r?is Ferrell in Ferries: the cnurtis i'unctirm tan a nintitin tn a settlement dries nrit tn the inteniretaticn er applicatien cf the law ceneeniing l'eenyel'y fer harms and dn net in tenri tn de se. IIeweyer, witheut matting findings en the merits cf the litigatien. I am satisfied that Class Ceunsel?s cencern about the litigatien risk arising frem the law relating te rcceycry cf damages fer harm. is reasenabic and well-feunded. in the circumstances cf this and the ayailablc evidence. as described by Class Lleunscl. Ceunsei fer Marchesc submits that the ?issue cf causatien? an additienal 'I'ifili te the Class Members? claim fer damages Ibr harm: arising eat cf the Desing Incident. Speci?cally. he Submits that even ii'a particular Class Member was able in adduce evidence that she er he sellers item a c?rethtigtiiaable illness?. the tllass lyleniher wculd still haye te preye that that illness was speci?cally emrseri by the Easing Incident itssl? as eppesed te ether causes, including the understandable amticty attributable te their diagnesis. in general. er amricty asseciatcd with treatment. He [int] [1 as] 1tt3 tits-n [tea] Page:32 submits tltat the antieipated diffteulty that tnest. if net alt= tit-ass Members wenld face in establishing legal eansatien and tlte rislt that individual trials; tm the merits; wettld he required en the issue ttl' eansatien, were identiliedr diseussed and dehated during settlement negetiatitms. Class Cennsel did net talte issue with his submissiens in that regard. In additien, Class Centisel submit that in the event the settlement is net appreyed, there is a rislt ef and a risl; that the defendants will bring a metien fer summary judgment te dismiss the en its merits. they submit that eyen if the plaintiffs are in all phases ef the litigatien. appeals eeuld be breught in relatien te multiple issues, resulting itt eensidet?able delay and espense in reaehing a tinal eenelttsitm and the asstteiated legal will be substantial- Git-en all the ttperahle risltsE Class Cennsel submit that the defendants" payment ef the amennt mandated by the terms ef the settlement is the mest fayeurable euteeme available te the Class Members. Cettnsel [hr the defendants eandidly state that based en. the risks that eenfi'ent the plaintiffs, the settlement befere the eettrt represents the enly terms with wbielt the defendants are prepared te yeluntarily agree, in erder te reselye the Litigatien. 'l'he yarieus defendants de net belieye they are legally ebligated te pay damages, but they remain willing te fund the settlement beeause eftlte estraulegal eirenmstanees efthe ease, and as a matter ef Hewett-?er, they? say that if the settlement is net appret-?edJ a ?better? taller will net be [hrthetmting [ls-'erall. 1 am satisfied that the litigatien and risks faeing the plaintilfs, as identified and esplained by ISL-lass Ceunseh and the antieipated future espense and liltely dttratinn the litigatienJ il'the settlement is net apprey'ed, all apprewd- Reenmmendatiuns ant] Esperienee nf Class CuunseltArnI's T.engt_h ef the Representative Plaintiffs 'l?he ef eaperieneed elass eeunsel ean eensiderable weight in the eeurt?s determinatien ef whether a settlement falls within the sene ef reast'tnableness: espeeiatly when the ettidenee indie-ates that settlement negt'itiatiens were in gtted faith and at arm's length, any suspieien ef er a basis tier elass eeunsel seeking te adyanee their ewn interests at the espense the interests ef the class: see Stewart Gettsret Meters rp?Cenetie Ltd. BUGS (ON at para. 24. [in the materials helin'e me, am satislietl the eyidenee establishes that the settlement was negetiated in geed faith, at sulfa length and by esperieneed eeunsel en beth sides. Settlement disenssiens teel; plaee eyer a number ef menths tltreugh a eembinatien ef in- persen meetings. eenferenee ealls and esebanges ef eleetrenie eet'respendenee. 'l'be yarieus defendant greups were represented by independent and esperieneed eeunsel, threugheut the negetiatietts. engaged in detailed debate and negetiatien {titer 1raritius aspeets ef the ayailahle eyidenee, the applieable law: and its eet?tespending impaet en the plaintiffs" lilteliheed Based en the eyidenee and submissiens bel'hre me. am satis?ed that Class Ceunsel arriyed at their after [last part pas] pass [us] [111] [l Page:23 considering all of the relevant anti relative litigation ristts faeed by the Class and those faeed by the defendants. Some of the objeetors question Class Counsel's motivation anti the estent of their efforts to develop further evidenee to support the plaintiffs" etaims. I will address those eoneems later in these reasons. However, in all of the do not harbour any apprehension that the proposed settlement results from an attempt by Class Cttunsel to plaee their own interests before the interests of the Class Members. Instead, I Ms. Lombardiis evidenee and Mt. Peerless' submission that the aetions undertaleen by Class Counsel throughout this ineluding their negotiation and ol' the proposed settlement with their professional judgment, with respeet to the best interests of the elass, as a whole. Class Counsel reeornmend and strongly endorse the proposed settlement as a that elearl falls within the some ufreasonableness, based on the evidenee developer] and the inliu'rnation gathered with respeet to the ?using lneitlent and its inlpaet on the members of the elass, in the eontest efthe applieable law. have no hesitation aee-epting Ms. evidenee that the lead members of the Class Counsel team, Messrs. Strosberg and Peerless, are eonsidered to be among the most esperieneed elass aetion lawyers in Canada. They have both appeared as lead eounsel in many of the deeided authorities refereneed by the parties on this tnotion. Clearly, they eaeh have eonsiderable esperienee in pharmaeeutieal elass aetions. In the eireumstanees, I am satisfied that the of Class Counsel should be afforded signi?eant weight in assessing whether the settlement should be approved, anti a strong initial presumption of fairness attaehes to the settlement beeaase it was negotiated by esperieneed elass eounsel in good faith and at arms length. All of the representative plaintiffs support approval of the settlement. all 1" these faetors favour approval. {lint-{hits and {Itbieetions The presenee of, and input from, objeetors is a relevant faster in evaluating whether the settlement is fair, reasonable and in the best interests of the elass, as a whole. Ubjeetors have the ability to bring to the eourt?s attention potentially relevant eonsitterations and perspectives, distinet from those raised by the parties and eonnsel who seelt approval of the proposed settlement terms. Class Members and Family Class Members had the opportunity to review the terms of the proposed settlement, and deeide whether to opt?out helin?e the settlement approval hearing. A total ol'seven Class Members opted?oat before the Ltet-ttlline, one of whom has sinee opted haelt in, for the espress purpose of the monetary benefit provided by the settlement. Ms. allidavit evidenees that after the ?notiee of settlement approval hearing? was published, she, along with other Class Counsel, eonmmnieated with over ass Class Members, the majority of whom are said to have espressed their appreeiation for, and support of, the proposed settlement. [11:1] [114] [115] [11s] [11a] [1151] [121:1] Page: ?34 Forty?nine written objections to the proposed settlement were received and one objection was subsequently withdrawn. The majority of objections were submitted by Class Members. I have had the benefit of reviewing the written objections and the benefit of listening to sincere, poignant and compelling oral submissions ?'om several of the obj cctors, during the course of this motion. With tho consent of all parties, i also received and reviewed additional written submissions front a very limited number of objectors, alter the hearing was concluded. Both [Itass l{lt?itntsel and counsel list the defendants understandably express great sympathy for the circumstances oi the objectors- concur in that eapression, however, my sentiments do not end there. The level of commitment, thought, attention and heartfelt candour espressod throughout the content of the written objections is commendable, as is the courage, poise and eloquence cshibitcd by the objectors during the course of their oral submissions. r?tnyonc who was present in the courtroom while the objectors spot-re, was undoubtedly moved by what they heard. 'l'his comt has the greatest respect for, and appreciation of, the concerns and submissions of the objectors and the efforts they have made to place them before the court. Their collective voice petsonalises the events at issue in this proceeding far more than the sterilised contest of an af?davit ever could- This action is not simply about c?ciinicai issues" such as ?overiili rates in the preparation of saline bags? or ?niedi cati on dilution percentages?. At its core, this action is about people cancer patients and their families; some of whom feel betrayed by the medical system they relied on; some of whom experience anxiety over their future outcome; and some of whom sincerely believe that their own condition has worsened or that they have lost a loved one, either sooner titan they otherwise would have, or at all, because of the Dosing incident. The objections to the settlement, which are all made by, or on behalf of, individuals who were directly affected by the Dosing incident, command significant attention and careful deliberation. in considering the objections, it is also helpful to recall that the issue on this motion remains, whether the settlement is fair, reasonable and in the has; interests ofthc cicss c.1- nr article, and not necessarily any one particular member of the class. twill new address the content of the objections. The defendant submits that the objectors can be broadly organized into three categories: Those who claim their injuries exceed the $1,5tit} settlement payment allocated for each Class Member; {it} Those who dispute that the Dosing Incident had no clinical impact on the individual?s chemotherapy treatment; and utu past neat Pagei?? Those wl'u'i assert that the it Ij?tlt't settlement payment alloeated tor eaeh Class Member is inadequate, generally, in eoinpensating the Class Members. Frum Class Counsel?s perspeetive, alter diseussions with many of the ohjeetors, they posit that the objeetions ean he desen?bed in aeeordanee with one or more of the following: a} Ubjeetions with respeet to the quantum of eaeh Class Members reeovery pursuant to tlte settlement; b) Ctbjeetions seeking eompensation for matters beyond the seope of the litigation and, more generally. arising from a ntisunderstanding of the nature of the litigation and the limits of the law. generally; e) Objections premised on a distrust of the seienti?e evidenee relating to the hnpaet if or last; thereof} of the Dosing lnoident on patient outeomes; d} ijeetions premised on a distrust of the independenee of members of the Standing Committee on Seeial Poliey and the results of the inquiry; and e} that tnisjudge the role and ntotives of Class Counsel. to eottsiderittg the ohjeetitms; I will organize the ohjeetorjs submissions into three eategot?i es: i] Quantum: Evidenee and Rislt; ii] We Admissions oi'Ttit- laility; and (lit) Fees and Mali ves of Class Counsel. Evidenee and Risk in my view, the oharaeterizations of the nature of the obieetions that are altered by eounsel, fail to inelnde a ground that itt'lptleltty or espressly [hi-ms part of most at the ohjeetot?s? Namely: the ohjeetors espt?ess a sineei'ely held heliel' that the terms ol' the proposed settlement do not eorrespond with a just resot't??, and a eoneeru that approval of the settlement will permanently foreelose their ability to seeure oer-ass fajitsrtee with respeet to the lJos'tng lneident, and the injuries and losses it has eaused. Beeause of that, some obj eetors take issue with the amount of the proposed distribution to eaeh Class h-temben pursuant to the settlement. Seine feel it is simply inadequate to eon-upensate them for the bane drme to them and their families. Utlters lind the quantum to he highly ot'l'ensive. Matty ef the obieeters? expressed views about the inadequaey ol' the eompensation provided by the settlement, are t'ounded in a heliet' that the Dosing dent direetly eaused a negative treatment. outeome that has ah?eady oeeurred, andfor a heliel' the inetdeut ltas inereased the risk that a negative outeome will manifest itself in the Those beliefs must be eonsidered together with the materials before the eourt that inform Class Counsel?s position about the ?serious litigation rislts" faeed by the elass. pee] pct] [tea] [tea] [13d] tst Pagc:Ee r?ts Mr. Peerless cerrcetly indicates. when the terms at the settlement, Class were guided and cenlincd by bath the available evidence, including Dr. Thiessen's c-uncittsiun that the til' the [inning Incident resulting in a clinical impact an the euteenie ei' Class lit-itembers= treatment is ?meat unlikely?, and the applicable law. tTJt'ceurae, many et? the ubjectere indicate that they dc net accept Dr. epinien= in that regard. Same ebjecters pesit that Dr. 'l?hiessen exceeded his mandate by epining en that issue. Semc ebjecters that Dr. is net an eneelugist. Heme ebjceters eerrectly ebserve that in his rejpt'trt Dr. Thiesaen indicates that he requested an upiuinn than an the ?Wetting Tueident en patient nutcentea. They state that the repert, it' it has been received, has net been made public. That repert. dues uel part at the recerd befere me. i understand the t'rtettratien and that same cf the ebjecters express because they have net had the eppertuuity in review that repcit. liewcver, as have previeusly cuneiuded. I remain satisfied that Class Ceunsel had adequate evidence and inibrmatien available te them. which allewed them tc malec an assessment at" the risks nt' litigatien and te arrive at an infermcd regarding settlement. In respending tn the ebjecters= abeut Ur. 'l'hiessen?s epinien, Tvtr. Peerless alae reiterates that Dr. Rieder and Dr. l-?ritchard have alse that the pessihitity et' a clinical impact an llid-lass treatment is ?meet unlikely": and Class Cettnael's censultatiens with eneelngists and phamtaeehtgists have yielded similar infermatien. 1While the apecitic cenveyed te Cuunsel during these is net detailed in the. materials, I alse appreciate that there are censtraints en the eatent In which parties can he expected te make full disclesure cf the and wealmessee at" their case, in situatiens where the litigatien may centirtue if the is net appreved: see Debits Ne. at para. 16. Finally, h-ir. Peerless een'eetl ebserves that there is ne evidence bcfere the eeurt that centradiets; at is etherwise incensistent. with, the epiniens expressed by Drs. Ricdcr and Pritchard. Class Ccunsel advise that they are net aware ef arty evidence establishing the [Jesing Incident resulted in a prevable clinical impact ert patient In Fact, snnie ef the ebjecters disclesc that they have been reassured by their ewn eneelegiats that the Desing incident is net Iihely tr:- result in a negative Seme ef the ebjceters assert that Class have net engaged in adequate efferte te develep expert evidence centimting that the rinsing incident has at will negatively intpact patient de net share that view. 1 am urtablc te eenelttde that {ll-ass Cetmsel acted ttnreasnnably, er in a manner that was ineensistent with the best interests at the IChase Members, as a whele, at any time in the Class Cleanse] have explained the serieus litigaticn risks and challenges that eentinnt the tGlass Members. which are supperted by the recerd bcferc me. accept these risks eaist despite Class Ceunselis exhaustive c?btts te develep evidence, which weuld etheiwise serve te advance the Class Members? claims. [ran] [rsr] 1ss Page: 2? Seme ebjeeters submit that the results el" the Standing ?ndings sheuld be disregarded ewing te an eperable eentliet et' interest and bias, whieh results ?em the inquity being eendueted by the ?previneial an entity they feel sheuld have been named as a delisndant in this ?filling rle net deubt the sincerity with whieh sueh beliefs are held, there is nething befere me that establisltes that the eenduet ef the inquiry was tainted in any respeet, and 1 am unable te inl'er that it was. .i'ts a result ef the lbregeing, I am persuaded that the Iblletviug ebjeetinns de net eenstitute greunds te rejeet the settlement, when ennsidered with the ether faeters relevant te appreval: (at distrust ef, er disagreement with, the seientifie and expert evidenee abeut the eliniea] impaet el'the l'ltnsing lneident; distrust ef, er disagreement with, the eentent et' Dr. Thiessen?s repert; audler the suggestien that the laeh nl? available evidenee tn the ltil'lass Members? pesitien results fret-n an inadequate et'tbrt by ISlass llifelunsel tn develep it. ri't. majerity el' the ebjeeters state that a payment ef $1,5tlt] is gressly inadequate as ernnpensatien tier the stress, anxiety and fear experieneed by the Class Members and members nf their families, beeause ef the Desing lneident. As I previeusl ebserved, Class rCnunsel has eerreetly stated the law as it relates te reetwery eempensatery damages en ef ?psyehelugieal harm" raid the requirement te demenstrate a psyebiatne illness". Altbeugh the stress, anxiety and fear that many ef the ebjeeters deseribe and attribute tn the Desing lneident is understandable, ertly an extren'tely limited number nl' ebjeeters assert that they suffer frent a diagnesed psyebiatrie illness, as a result ntthe [lasing lneident, itself. In determining whether te apnreve the settlement, the tbeus is whether it is fair, reasenable and in the best interests ej?rhe es rebels and net any partieular individual Class Member. in Class lfiemtsel, it remains that in the ease el" nearly every Class Member, there is an evidence that the psyehelegieal harnt they experienee, as a result at the Desing lneident, rises tn the level et" a ?reengnixable psyehiatrie illness". eeunsel agree that in sueh eireumstanees, these Class Members weLle net be entitled te eempensatien fer psyehelegieal hann. There lbre, they suggest a payment nf $1,5Ctt} te eaeh lClass Member atlerds a greater level titan weuld likely be ebtained at trial. The preferable eeurse ef aetien fer these wire assert they have suffered a psyehiatrie illness? as a result ef the Uttsing lneident {and therefere, their eireumstanees differ frem these ef the balanee til the lClass Members} may have been te ept-eut. I am mindful et' seme ef the ebjeeters? submissiens indieating that they de net have the means Le t'und an individual aetien, the feeus remains en the interests rat the Class Members as a whale, when determining apnreval. rt small number el' ebjeeters the eurrent state ef the lavtr dees rtet taveur Fer psyehelegieal harm that falls shert ef a psyehiattie illness" but they suggest that thmugh this Class Ceunsel eught tn attempt te ehange the law, in that regard. [13s] has [1411 1tithilc it is that law can anti canlcc cnarsc cl" linic, in my yicw, it bc saitl that al'a lcgai stratcgy prcmisctl an changing law ll'irtnagh circan'islanccs til' this wnald tictsi Lit-Jdl la: in nl'all til' the lClass Mcnibcrs. ll' saccasslill, that apprtiach might rcsall in Ciass rcc-m-?cring a1] amauut that is grcalcr than Lha scllicincnt prtwitics. liligaticn ticsigncti tn changc basis apnn which rccaycry niay bc far harn1, wnaltl carry with it rislt, anti irwariably acltl cstranrdinary lcagth anti tlclay a: bf at bath trial [sac] and, prcsatnpliycly, appallatc l~'inally, of yicw nt? as cqaaling trains at l'hcir liic {tit ii {if a Family in $1,5il?. Thai is 11111 ihc casc. Tndi spalahl y, saints til"?Llic til cach Class is immeasurablc. T'hc larn'ls bl' {it} nat anti Lhcy tic nat rcl?lcc-l an attcnipt tn yalac ?thc worth? cf any class tncnibcr. Rather, the is the rcsail nl'arin?s bargaining carriccl but in al' ayaiit-tblc scicntitic, capcrt and Unsing Incidcnt, and its clinical c?ccts an paticnt statc cf apnlicablc law and rclatiyc litigaticn rislts by all bartics. it is tha- nraa?scr afcamnrmai?sc. {it} Na Admissiaas afLiaht'?ty t4s [145] [Ir-Hi] Humc haw: raiscd that i'clcyanl htispilals arc Dbl. tlcl'cndants. Hawaii-er, haspilais as ticiicntlants cf claim was aincntictl in E?lti. Thcy will bc bcancl by at" sctticnicnt. i Many al' :ihjccaa's arc tlissalislicd wiLh nf'thc bccansc thcy tic rctlairc ca- cnntain an admission nf lcgal liability by any bf ltclatctl in that, scans that arc ?gaii'ty and as a rcsalt thcy ?want titan-t ta bay tits rrtastmam awaits". arc that lcn'ns nf tic ant 'yntm?sh? ticlicntlanls. bf arc by Class that ayailablc that nanc at tlct?cndants cngagcd in any 'l'l?icrcitirc, it] [his calcnl as?ailablc in law, rtilc til' damagcs in this is and ma as a it: ?punish? wrangd?cl's. .adtiititmaliy, than: is an intlicatibn that is tn in an award bi?paniliyc dainagcs, if inattcr in trial. a: scLLicinan in lack. cl" an atiniissinn cf liability on part at arc also cantrastcti by Class that t'raapramtsa is in tc litigaticn. [14s] [14s] use] ass] Page:29 hi this instance, the defendants strengly assert that they are net liable, in law, because the scienti?c evidence snpeerts their eendnet and it establishes the absence ef "medical causatien ef a clinical impact an patient enteemes." In Class Ceunsel?s view, it was in the best interests c-l~ the class te reach a practical reselatien til' the litigatien, rather than te pursue an adinissien that the delhtidatits were {and remain] unwilling te pl?evide, veluntarily. The absence t' an admissien et' liability en the part et' a settling defendant is a typical cempenent ef any settlement, whether in the centeat ef class preceedings er etherwise. Further, as variens ceansel tie the defendants ebserve, altheugb the defendant ts have net extended a fermal admissien ef legal liability, the terms ef the settlement and the actiens that and Medbuy have undertalten since the Desing Incident, evidence their ri?es-peasfellas? te ensure that a similar event dees net in the future. The settlement (en its ewn behalf and en behalf ef the heseitals} and Harchesc te fund, in canal prepertiens, the settlement ameant, withent the pessibility ef reversien, in circumstances where the plaintiffs: liltcliheed efrceevary is relatively lew. Further, it ceinpels I'vledbuy and i'vlarchese tn tile statements with the c-eart' attesting te internal reviews and iinprevenients undertaken as a result cf the fleeing Incident, which they have dene. will address these statements, belew. Michael Blanchard, is Vice?President et' Pharmacy Services. In an af?davit tiled en this nietien, he aiming ether things, the recentniendatiens set eat in the Tbiessen repert that are speci?c te Medbny, as a GPO. He states that subsequent te the [tesing Incident, Medbuy withdrew ?'em directly fer ?admit-tint; services?. It assigned its admitting agreement te members ef the till-?0, in an cffert te create a ?direct interface? between service previdcrs and the members cf Eviedbny whe ehesc te centraet fer admitting services, which, in turn, facilitates the ?ew et" relevant infermatien between them. Evitr. Blanchard states that in rcspense te the Desing Incident, Medhny has alse taken several steps in imprevc ?the i'igeur cf its centraetina precess? te ensure that an event similar tn the Busing Incident is net repeated, including: 1} helding a series ef ?risk edneatien sessiens? designed te ensure that its staff and representative- pharmacy members are intlitnied and aware til' the nature {if the ?risk assessments" c-un'ently required in ?centracting precesses? specitic te clinical settings; 2] eendacting a with hespitat representatives and the Institute fer Safe Medicatien Practices, te develep recemmendatiens fer ?rial: identifieatien" and ?mitigatien centrels?, with an emphasis en patient safety, which can be hitegrated inte Medhuy?s centraeting precesses; El} cenducting a fer all Ivledbuy members, including the hespitals, to review recegnized standards fer quality centrel surveillance strategy, testing risle centainment and preduct and facility menitering {as set ent in Page: St] the United States Flu-tnuaenpeia Chapter thereby ensuring that in?heuse pharmacists and teehnieians nf the UPUs members are aware at ?the eurrent universal standards fer sterile admising serviees"; 4} develnpiu a risk?rating {er rial: endej applieable tn enntraets related tn ?prnduets and serviees meant patient treatment?: tn ensure that patient risk ei'itet'ia are lneet?pet?ated inte the evalttatitm and seleetinrl nl' senders; 5} subsequent tn the Desing lneident and prinr tn itv'tedhuy?s assignment {if its adIl?llxing agreetIteIlt= l'vledbuy ensured that hriarehese?s pharmaeists and the rrtetrlbet? phannaeists fer the preparatinn ef sterile adnnsed drugs met; direetly, tn review and the speeifieatinns fer preduets supplied by h-Iz-trehese; ti] a phannaey?speei?e ?ehange management designed tn ensure that Medbuy"s members are infermed abeut all ?treadm- n'nnsiriens? ti.e. when a enntraet, previeusiy held by ene vender, is subsequently awarded tn annther} and any signi?eant ehanges in the prnduets nr setyieesl supplied. The is said tn ensure that the standard nperating andr'er at the new vender are validated by the ?Medhuy?memher end?user", pn?nr tn the aetual supply ef the subjeet prnduet tn? serviee. [153] lI'inally, Evtr. Blanehard indie-ates that Dr. Thiessen?s reetnninendatinn tn publish eentraet l?ril details regarding adn'tising serviees is net applieahle te its eurrent eperatien. beeause it dnes net eurrently eentraet l'nr stteh serviees. Ilewever, if it dees se in the future, ivledbuy will puhlish the requisite vender and prnduet as l'vlarita Eaffrie is the president at Mes-?eaten Enlutitins (earrying e11 business as Marehese Hespital and lne. [ran-yin nn business as Marehese ltealth Care}. In an af?davit tiled nu this mntinn, she referenees Ur. 'l'hiessen?s speeifie eeneerning ivlarehese, whieh Reenntmendatien number 5 Marehese Htispital Finlutinns shall review and revise its preduet preparatinn te ensure that all its prnduets meet the speeitieatinns required by prefessienals in treating patients ei'feetively and safely. lull-TS shall belie-tat the end?users te.g.. pharmaeists] that empley its serviee prnduets in treating patients; the preduet speeifieatiens shall be revised as needed tn satisfy the requirements. The predttet preparatinn shall be medified, where needed; tn meet the existing speeifieatinns. use use 5Tl para [159] Page: 31 hnpertantly, the changes shall eliminate any eenfusien er misunderstanding regarding preduets-iserviees designed in deliver an entire prepared de?le: a fraetien til-the pruduet a eeneentratiun; the use [it autemated delivery systems {based en a dese, eeneentratien, vetume} shall be with the ehanges. Ms. ?Eatl'rie depeses that hill-lb] had already implemented er uhserved the essenee efnlest til" the Thiessen en its ewn initiative, even befere the repert was released. After its release, Marehese implemented the balanee ef Dr. 'l?hiessen?s She alse states that the events giving rise tn the Desing Ineident were ?unique? and that MHS did net esperienee any ether with labelling: er etherwise: hel?ere er alter the Dusin ineident. Finally, she uhserves that in Etll?, WIS seld its Mississauga ?admistures supply business" te an Lmrelat'ed eerpel'ate entity. 1 that the tenns ed the settlement previde liir impertant nen?mnnetary henet?ils by ensuring that the relevant parties have engaged in behavieur niedilieatien designed te prevent anether event similar te the l'Jesing Ineident. Further; the salutary elleets til' the medilied hehavinur undertalten in this instanee, extend heyend ehanges tn related re the admiaing ef ehemetherapy medieatiens? and ?the eentraetin ef sueh serviees?. The initiatives undertaken by the relevant defendants are designed: te the-illtate nluell mere direet ennimunieatien between end?user members ef the Medbuy GPO and their suppliers el' preduets and serviees meant fer patient treatment; te impreve identifieatien, rating and mitigatien ef risles te patient safety; and eentinuing edueatien and eenmtunieatien abeut sueh risles between end-users and ether entities in the supply ehain, fer all manner ef preduets and serviees. Ceusistent with ene ef the ebjeetives ef the era. sueh measures previde a substantial degree ef seeial utility. whieh must alse he eensidered in the eentest ef the ehjeeter?s eeneerns abeut the ahsenee ef liability adniissiens. as part el? the settlement. and hietives et? Class Ceunsel [ise] Senie ef the ebjeeters talte issue with the fees and-"er disbursements seught by Class Ceansel, whieh I will address, in determining the metien fer fee appreval. Seine suggest that Class Ceunsel did net pursue er develep the elairn vigereusly heeause they were metivated tn ?fuse r'r Quins pre?f?le thesiser'rves?. 'lhat sugge-stinn is enntrusted by Mr. Peerless? aeeurate nhservatien that Class [lnunsel have entered inte eeutingeney fee arrangements with all at" the representative plaintitls and, therefere, the quantum ef Class Ceunselis eenipensatien is a direet funetien ef the ameunt ef any settlement er award in tin-'eur ef the plaintiffs. The greater the ameunt ef fer the Class Members= the greater the ameunt ef the fees payable te eeunsel. lt fellews that if evidenee was available In suppert a elaim fer signifieant ?naneial en hehall' nl' the etass, it weuld be finaneially benefieia] fer {Ilass {leanset tn develep that evidenee; and pursue a settlement en that basis. Page:32 [151] 1 will add this. 1While 1 that same ef tlte ebjeeters held a sineere heliet" that Class are primarily ntutivated by their ewn linaneial interests, In the settlement, 1 tie net share that view. 1 l'vlr. Peerlesse suht'r?tissien that Class primary metivatitm has always been tu seeure the best result pessible fer the lClass Members, based en the available evidenee and the applieable law. there is nething in the befere tne, ineluding the eentent ef the ebieetiens, tltat serves ta eenvineingly eentrarliet that Eenelusien an {thieetierts [an] pan [1 hit] In eensidering the substanee ef the varieus ebieetiens, it is helpful te reeall that the eeart dees net have the jurisdietien te amend the eaisting terms ef the settlement, tn add adrlitienal tertns tn the settlement, in eempel the parties tn resume negtitiating te preduee a new settlement, et? Le eui?npel Class tti engage in speei lied eeul'ses et? eent?ttlet, as same el' the ehjeeturs retlttest. Rather, the ebjeetiens must be eensidered tegether with all el' the ether relevant eunsideratiens, te determine if the settlement is fair, t?easenable and in the best interests at" all Class Members. In my vi ew, a Iinding that the settlement falls eutside the zene ef reasenableness, en the basis at the ehjeetinns, er ethetsvise, weuld net be in the best interests ef the elass, as a whale, as distinct frem any particular individual ebjeeter. Again, these uhjeeters whe differentiate their eireumstanees frees the balanee ef the Class Members, anti perhaps fer these nbjeeters whe espress a laeh ef eenfidenee in Class Seunsel er their the tnere preferable eeurse may ltave been tn npt?eut, an as net te be beund by the settlement, if appreved. (Tenetusinn en Settlement Approval [Issj use I am satis?ed that, thruttgh their lhetum and subniissiens, tegether with the evidenee en this metitm, [Haas Cuunsel have adequately esplained why the tertns ef the prepeserl settlement. ?fall within the zene ef reasenableness?, in all the eireumstanees ef the ineluding: the nature ef the ela'tm; the nature ef the del?eneesj, the litigatiert rislts pesed by the laelt ef available evidenee te supper-t that the Basin tneittent etinieally impaeted patient euteemes, tegettaar with the evitlenee that suggests that it did net; the litigatien rislts pesett by the law applieahte tn the ut' eempensable datnages fer psyehetugieal harm; the llttetit'ltt?t?l et' er the ef esperieneed lElass Ceunsel; the arm?s length nature ef the bargaining; the antieipated time anti eapense asseeiated with further litigatien, in the evertt that the settlen'tertt is net appreved', and the nature and eentent ef the ehjeetinns. The prepeseti the elaitns arlministratien prneess is and el'tieient. Finally, the settlement ensures seeiall respensihle hehaviunr nitittilieatitni by key defendants aimed at preventing similar ineidents linm tier the feregeing Teasens, I am there litre satis?ed that the terms et?the settlement are fair, reasenahle and in the hest interests at the lmass Ts-lemhers, as a whale, and the settlement is, hereby appi'tived. 1 er Page:33 In reaehing that I remain mindful that sit] ef the patients affeeted by the ?using lneident 1were miners; at the time ul' their treatment. Hewett-er, the (thlee ef the Children?s all el~ the material filed an the settlement appret-?al mntien and it dees net eppese the relief requested, ineluding appreyal and I am etherwise satisfied by the materials and submissiens befere me. that settlement ef the miner IClass h-ten'ihers? elaims eught tn be appraised. fer the same reasens set eut abeye. Fee s?t Burnett] use] [Isa] [ire] [its] [l L?lass [Zeunsel seelz; appreyal ef the eentingeney fee retainer agreements they have entered inte with the representative plaintitfs and they seels appreyal ef Class Cennselis legal lees: disbursements and applieahle tat-res= in the all-inelusiye ameunt as euntemplated by the teiTns the settlement. The fairness and reasenableness ef the fee awarded in respeet ef a elass must be detemiined in light at the risk undertaken by eeunsel in eendueting the litigatien and the degree in the result ae-liieyed: see Sari-tenses: tidert'ieet' Engineering Kenya. {1995], 3 (LEE. {?lth} 3.36 (Ont. ICien. Titian}; a, Red Hearst}; Cardfl 22336 SC), at para. {52. The teeters that are relevant in assessing the reasunableness el' {Ilass Ceunsel's lee inelude: the time espended by the selieiter; the legal el" the matters Lu be dealt with; the degree ef respensibilitry assumed by the selieiter; the menetary value ef the readers in issue; the impertanee ef the matter to the elient; the degree ef sleill and eempetenee demenstrated by the selieiter; the results aehieyed and the eentributien ef eeunsel tn the result; the ability ef the elient te pay; and the elientis espeetatien as re the ameunt ul'the l'ee: see Herwnezeh at para. l7. 'l'he representatiye plaintiffs have signed eentingeney fee agreements with Cennsel and they all suppert the fees requested by Class LTeunsel en this metien. l-?urther. the representative plaintill's have all swern affidavits in Wlliel?t they depese that ?citizens erntna'et feel: en rt signi?cant finenr'r'rn' risk. and snrna'rt' be rewarded ejnn'eprirneilr?rr their diligenrsa and site-rte" and they all rel'erenee ?eaters 's saleable were and i?e pursuing the series and res .rer?t?lernenr radneie'en?fer as Class". The terms ef the eentingeney lee agreements pnwide that lees and disbursements with respeet tn the eeminen issues, weuld enly be payable in the eyent? ef a judgment en the eemmen issues. in fayeur ef seme er all ef the Class Members. er a settlement that benefits ene er mere ef the Class Members. Pursuant te the retainer agreements? {fleas {leunsel are entitled tn seek fees in an ameunt that is equiyalent re 25 pereent nl' the Value [if the settlement; plus reimbursement liar the disbursements they expended in ?trlherauee ut?~ the [ugether with applieable HST- The euntingeney fee agreements eentain all the inli?n?matieu required by s. 321:!) at the CPA: and are, therel'ere, appreyed Signilieant time and ineney has been espended by IGlass Ceunse] in pursuing the litigatien. MeKensie Lake has ineurred a tetal til~ 3432133347. ineluding the fee 1ralue ef His! [1 an [in] [Wit] use] Page: 34 time disbursements and applicable taxes. Suns Stresberg LLP has incurred a rural ef 351519.35144 including the fee valtte cf time espendetl. disbursements and applicable tases. 'I?herei?nre: the tntal I'ee value at" lime and the disbursements, inclusive cl' LasesJ espended by Class {launsei with respect tn tltis pruceeding is $5211 94.9l- Pursuant tn the ccntingenep lee agreements: Class Ccunsel are entitled tn seelt i'nr lees tntalling $593?5ll {which is calculated as 25 percent til' the value el' the settlement) plus disbursements and applicable tastes. Instead, Class Ceuusel request apprevt-tl cf legal fees, inclusive cf disbursements and taxes, in the amettnt cf in all the circumstances, I cenclude that the fees requested by Class Ccunsel are fair and reasenable. The factual and legal issues in this shade abcvc mederate in their Ceunsel espended censidcrablc time reviewing veluntinuus dceumentarp evidence and infermaticn including ever pages cl? testimcnp train the Standing [letnnrittee?s inquirv. Cnunsel eunsulled with numertiLts experts in anti phannacnltigv: in migning attempts tn develnp the necessary esperl evidence In increase the lilteliltued ut' success fer the class. When that evidence was net ccunsel turned te negatiating a settlement that prevides a fair and efficient rnethcd fer centpensaticn tn the class. 1 have rte hesitatien in cencluding that the prefessicnal services previded by Class were built eempetent and necessary, tn ensure stnne degree nf in the Class Ceunsel ultimatclv achieved a result that included a rural pavment by the defendants cf BESTSHUG. tcgether with assurances that lvlarehese and Medhuy have, and will eerttinue telJ engage in the behavieur rrtedilicatitm euntemplated h_v lhe Thiessen repert. The uncertainty in the law with respect tn recuverp' til' damages harm and the variants delenees raised by the tleihndanls resulted in a ver}r real and lbnnidable risk. that Class weuld net receive any eempensatien, under the terms ef their retainers. The ultimate l'ee seught is substantiallv lewer than the value cf the time that [lines Ceuuscl expended in filrtherauce ef the preceeding. It is substantiallv than what cetmsel is etherwise entitled tc receive pursuant re the centingencv fee agreements. which were fullv understand and accepted by the representative plaintiffs at the time thev were eaccuted. l'lte representative plaintiffs Class Ccunsel?s I'ee request. Same ef the ebjeeters talte issue with the antcunt cf fees seught by Class Cnunscl. 'l'hnse cbjectiens are= in my view, feunded in a misapprehensinn nl? the el'liirt and skill eshibited bv Class {Itiunsel in the enurse til' the prnceeding- Further, tine canned discuunl the linancial rislts assumed by Class Ceunsel in such and the reality that the gnals cf the CPA anti access in justice and behavieur medificaticn, in particular. ?can culv be achieved if incentives are previded fer ceunsci tc assume the rislts and accept the financial burden cf carrving litigaticn that, unfert'ttnatelv, is verv eften pretraeted?: see Kremfee v. (initiate (Etl?tij. 33 CPL. [nth] Elli (tint. 3.111.]; at para. 24- in my view, the ebjeettens dd net present a justitieatirnt ttn' relitsing Le appreve what I determine tn he an estren'lel'i.r reastinahle the request, in all l1 the circumstances. Page:35 [134:1] For the reasons stated above, 1 find that the fee amount of {inelnsive oi" dishursernents antl apolieahle taxes) is reasonable and it is hereby approved. Disnesilion [131] As a result of the toregoing, judgment will go approving the settlement and Class Counselis fees, together with all aneillar}r orders, in aeeordanee with the draft judgrrienn as submitted and signed. .I - Gregory . 1'v?erheern Llaliee Released: April EDIT CITATIDN: Ilant a. Mazantan Snlatlana lna., 201? UNSC FILE Nil: LNG-1349436 DATE: El} 'F?il??l UNTARIU HUFERIUR CHURT HF JUSTICE BETWEEN: Lisa Arlana Hunt, Ryan Waalay lIunT, 'l'ina Maria Walla, Panlala Warts, liavln ?Iu?hr?nrta, 'I'ha Eatata {infill-aar? Baudraanlt and .lnhn {lhaalay Prinaa I?Iaimi and Mammal} Hulniiuna lt?la. aa lluapltal amaamm, Mammal} Tna. cab. aa Ilaalth Cara, Mammy Windsor Raglanal laudan Ilaalth. lCan?n'a, Lakarldga l-laalth, Patarharaagn Raglanal llaaltn tantra and Raginnal llaaltn ?atnnrirj; 13 [Saint Raginnal Haapilal?j Dafanclanta RIH..ING UN ?ll CLASS PRULTEEIJIHH 1il.f'arlaa am I . April T, 2a] '3