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REASONS FOR JUDGMENT
OF THE
HONOURABLE MADAM JUSTICE KIRKPATRICK (IN CHAMBERS) |
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Counsel for the Plaintiffs: |
J.H. MacMaster C. Rhone
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Counsel for the Defendants: |
H. Poulus, Q.C. D.R. Brown
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Date and Place of Hearing: |
October 24, 2002 Vancouver, B.C. |
[1] By order made September 27, 2001, this action was certified as a class action under the Class Proceedings Act, R.S.B.C. 1996, c. 50. The certification order was entered on May 3, 2002. By that order, notice of the class action is to be given to the class members by the following methods:
(a) a four page notice of the class action involving Medtronic pacemaker leads is to be mailed by the defendants to all class members of whom the defendants are, or become aware;
(b) the defendants are to deliver copies of the same notice to all physicians, hospitals and pacemaker clinics of whom they are aware, or whom they become aware, who implanted the leads which are the subject matter of the litigation, together with a cover letter, attached as Appendix “B” to the certification order, in which the doctor or pacemaker clinic director are asked to attempt to bring the notice to the attention of patients in their care who currently have, or previously have had, either a 4004 or 4012 lead implanted in them;
(c) the defendants are to deliver the notice to any other physicians, hospitals or pacemaker clinics in Canada to whom the plaintiffs request that notice be delivered; and
(d) the defendants are to cause notices to be published in four specified journals and 17 newspapers.
[2] In addition, the defendants are also required to provide reports, and ultimately file affidavits, about the execution of the steps that have been ordered.
[3] The method of notice embodied in the certification order was the subject of a day long hearing in December 2001. The ultimate order substantially reflected the proposal for notice advanced by the plaintiffs.
[4] At a case management conference on September 12, 2002, counsel for the plaintiffs raised three concerns in respect of the notice program:
(a) plaintiffs’ counsel had estimated that 10-12,000 leads had been implanted. However, 8,853 notices had been mailed by the defendants to lead recipients. Consequently, plaintiffs’ counsel was concerned that there are approximately 1,150 to 3,150 missing class members;
(b) plaintiffs’ counsel was concerned about the effectiveness of the mail program on the basis that 8,853 notices had been mailed to patients of which approximately 3,053, or about 35 percent of the total number of notices mailed, had been returned to the defendants by Canada Post; and
(c) plaintiffs’ counsel advised the court that he intended to contact a “random” collection of the clinics and cardiologists to whom the notice and Appendix “B” had been sent to confirm that they have in fact received the notice and to try to get some sense of how the request is being handled by the pacemaker clinics and doctors.
[5] The third concern led to another case management conference on September 13, 2002. On that day, plaintiffs’ counsel advised the court that he was planning, in his words, a “random follow-up of some phone calls and some letters posing these questions to a variety of clinics and doctors”:
Did the clinic receive from Medtronic a letter and certification notice approved by the B.C. Supreme Court. If the answer to that is yes, are you taking any steps to communicate the information. If the answer to that question is no, why not. If the answer that question is yes, what steps are you taking.
Plaintiffs’ counsel advised that the purpose of this enquiry was to determine the effectiveness of the notice program.
[6] These recent events have given rise to two notices of motion. The first motion is that of the defendants, who seek an order in the following terms:
(a) that the court’s authorization would be needed before plaintiffs’ counsel, or the representative plaintiff, or any of their servants or agents or employees, could, directly or indirectly, contact any of the doctors or clinics and enquire as to how they acted in response to the letter sent to them by the defendants; and
(b) that authorization is not granted.
In the alternative, the defendants seek an order that the plaintiffs’ counsel, or the representative plaintiff, or any of their servants or agents or employees, not, directly or indirectly, contact any of the doctors or clinics and enquire as to how they acted in response to the letters sent to them by the defendants.
[7] The second motion is that of the plaintiffs who seek an order in the following terms:
(a) that the defendants produce for the plaintiffs’ inspection all envelopes which the defendants sent to persons implanted with the impugned pacemaker leads (the “implantees”), which were returned to the defendants as undeliverable;
(b) that the defendants produce for the plaintiffs’ inspection the names and last known addresses of all implantees listed on the defendants’ database or otherwise known to the defendants; and
(c) that the notice period and opt-in period be extended from October 31, 2002 to January 31, 2003.
DEFENDANTS’ APPLICATION TO RESTRAIN PLAINTIFFS’ COUNSEL FROM CONTACTING DOCTORS AND PACEMAKER CLINICS
[8] The fundamental motivation of the defendants in seeking an order denying authorization to plaintiffs’ counsel to contact doctors and pacemaker clinics is to prevent plaintiffs’ counsel from approaching the defendants’ customer base, namely cardiologists, hospitals and pacemaker clinics. The defendants contend that such contact will logically and inevitably have an adverse impact on Medtronic’s business. In addition, the defendants say that there is no evidence to suggest that the notices were not received by the doctors and pacemaker clinics to whom they were sent. The defendants further contend that the small number of class members who have reported to plaintiffs’ counsel that they received notice of the class action from their physician or pacemaker clinic (estimated to be 10 percent) is consistent with the mechanics of the notice program. As well, the defendants say that plaintiffs’ counsel can determine the efficacy of this aspect of the notice program by contacting their own out-of-province clients and asking them whether they have visited their caregivers since the beginning of the notice period. If so, they could ask those individuals whether they were offered a copy of, or were otherwise made aware of, the notice during the visit to the caregiver. From those answers, the plaintiffs’ counsel could obtain a sense of the effectiveness of that portion of the notice program. Plaintiffs’ counsel have rejected that proposal, principally on the ground that they have a right to conduct a random sampling of pacemaker clinics, hospitals and doctors.
[9] The plaintiffs oppose the restriction which the defendants’ proposed order would impose upon them. The plaintiffs say that they merely wish to communicate with witnesses or non-parties in order to determine whether the notice program is effective. The plaintiffs are concerned that numerous individuals may have no notice of the class action and will therefore be unable to exercise their right to participate in the class action. The plaintiffs say that the aim of their proposed contact with doctors, hospitals and pacemaker clinics is to simply determine whether the notice program is fully effective, and if not, whether the notice program should be modified.
[10] It is instructive at this juncture to reproduce the request made of doctors and pacemaker clinic directors pursuant to the certification order and the notice provisions of that order. Appendix “B” to the certification order reads:
Appendix “B”
[TO BE PRINTED ON MEDTRONIC OF CANADA LTD. LETTERHEAD]
Dear Doctor or Pacemaker Clinic Director:
As you may know, the British Columbia Supreme Court has certified a class proceeding regarding Medtronic Model 4004 and 4012 pacemaker leads.
We enclose with this letter a copy of the certification notice approved by the court for distribution to class members (the “Notice”).
We will be forwarding the Notice directly to each individual who has ever received 4004 or 4012 pacemaker leads and whose name appears in our records. However, we know that our database of patients is incomplete for reasons beyond our control. For example, patients may have changed their addresses without notifying us.
Accordingly, we ask that you please attempt to bring this Notice to the attention of patients in your care who currently have or previously have had either a 4004 or 4012 lead implanted in them.
Specifically, please provide any affected patients in your care with a copy of the Notice at their next pacemaker clinic visit. Special arrangements will be made to accommodate any patient who first hears of the certification of the lawsuit by notification in this fashion.
If you wish to receive additional copies of the Notice, please feel free to contact the undersigned who will provide them to you.
Yours truly,
[11] The underlying rationale for including doctors, hospitals, and pacemaker clinics as those to whom specific notice would be delivered, and by asking those health care professionals to bring the notice to the attention of patients in their care was, as Appendix “B” makes clear, due to the fact that Medtronic’s database of patients is incomplete for reasons beyond the defendants’ control. The inclusion of doctors, hospitals, and pacemaker clinics in this aspect of the notice program was permitted as a possible means of filling the gap in Medtronic’s knowledge of persons who had been implanted with the 4004 and 4012 leads. It is important to remember that the request is part of a Supreme Court order. Although the request is made on behalf and for the benefit of the plaintiffs, it has the imprimatur of the court. In consequence, the court, in my opinion, has the responsibility to ensure that the process condoned by its order is not enlarged without the authorization of the court. By the certification order, the court was in essence asking for the cooperation of doctors, hospitals, and pacemaker clinics in disseminating the notice of the class action. There was always the recognition that the health care professionals to whom the request was to be made are busy providing care to their patients. The task which this court asked them to perform was not mandatory, nor could it be. It was always contemplated that the doctors, hospitals, and pacemaker clinics might lack the resources and the time to disseminate the notice. In other words, it was the fond hope of the court that the doctors, hospitals, and pacemaker clinics might be able to accommodate the court’s request.
[12] Based on the evidence and submissions of the defendants, I am not persuaded that there is reason to doubt the efficacy of the portion of the notice program relating to doctors, hospitals, and pacemaker clinics. More importantly, I am loathe at this stage, absent compelling reasons to the contrary, to impose any further burden upon these busy health care professionals. The evidence strongly suggests that the notice was mailed and received by virtually all of the intended target doctors, hospitals, and pacemaker clinics. If the recipients of that notice have disregarded the request contained in Appendix “B” then there is, in my view, nothing this court can or should do to enforce compliance with what was always intended to be merely a polite request. I do not favour any additional disruption to the work of the health care professionals than that which has already been asked by the request set out in Appendix “B” to the certification order.
[13] In the circumstances that are before me at this time, I decline to grant authorization to plaintiffs’ counsel to further trouble the health care professionals whom they wish to contact for this purpose.
PLAINTIFFS’ MOTION FOR PRODUCTION AND INSPECTION OF ALL ENVELOPES RETURNED BY CANADA POST TO MEDTRONIC
[14] The plaintiffs’ principal motivation in bringing their motion arises from their concern that approximately 35 percent of persons who have had or are implanted with the 4004 and 4012 leads (the “implantees”) have not received the envelope containing notice of the class action.
[15] The defendants raise, but do not argue, that the order that the plaintiffs seek may result in the disclosure of privileged information, namely the confidence which the ultimate consumer of the defendants’ product, the implantee, may have over the disclosure of their names and addresses. As counsel for the defendants points out, it would be inappropriate for the defendants to present authorities on the issue of confidentiality, or to advance any substantial argument on the point, because one person cannot defend another’s privilege without the other’s consent. See: Lavallee, Rackel and Heintz v. Canada (Attorney General) (2000), 184 D.L.R. (4th) 25 at 35 (A.B.C.A.), 2000 ABCA 54, affirmed [2002] S.C.J. No. 61 (Q.L.), 2002 SCC 61. The defendants also say that it would be, in any event, unseemly for the defendants’ counsel to be advancing arguments on behalf of class members.
[16] As counsel for the plaintiffs notes, the information as to the names and addresses of patients in whom the pacemaker leads have been implanted, and whose letters have been returned to Medtronic as undeliverable, is in the possession and control of the defendants. There is no doctor-patient confidentiality in the relationship between Medtronic and pacemaker implantees. However, even if the defendant has a duty of confidence, then counsel for the plaintiffs asserts that there is a concomitant relationship of trust and an obligation to use the information to the benefit of the implantees. As plaintiffs’ counsel argues, the disclosure of the implantees’ names and addresses is to their advantage because it will mean that notice of this class action is more likely to be received by them than if their names remain secret from plaintiffs’ counsel.
[17] Like the defendants’ counsel, I do not know if implantees whose names and addresses may be disclosed by the order sought by the plaintiffs will be horrified or pleased by the disclosure. However, given the limited extent of the information that is sought to be disclosed, namely the implantees’ names and addresses, and nothing more, I suspect that implantees would prefer to be notified of the possibility of their exercising their legal rights in a cost effective manner than to be kept in ignorance of that right.
[18] The evidence before me does not disclose the basis on which the doctors or hospitals notified Medtronic of the implantees’ names and addresses or whether it was done so with the implantees’ consent. What is clear, however, is that 35 percent of the patients in whom the subject leads were implanted and whose names and addresses Medtronic possesses, have not received notice of the class action by means of the notice having been mailed to them. I recognize, of course, that a significant portion of implantees may have died since Medtronic was informed that their leads had been implanted. The average age of implantees and the fact that the subject leads have not been used for almost a decade supports such an inference. The point is that plaintiffs’ counsel should have the opportunity to try to notify as many of the living implantees as possible.
[19] Given the substantial percentage of implantees who have not been notified, and given the restricted nature of the information to be disclosed, I conclude that there is a sufficiently cogent reason to supersede the obligations of the confidential relation, if there is one, between Medtronic and the implantees by an order that would require Medtronic to produce the returned envelopes which plaintiffs’ counsel seeks to inspect.
[20] I accept that the disclosure of this information will require an extension of the notice period and the opt-in period from October 31, 2002, to January 31, 2003, in order to permit plaintiffs’ counsel to attempt to locate and notify the persons whose names are disclosed by this order. In order to preserve to the greatest extent possible the privacy to which these individuals are entitled, I direct that the information so disclosed be used only to locate new addresses for those persons to allow mailing a fresh notice to any new address located as a result of plaintiffs’ counsels’ enquiries. To be clear, this information is to be used only for the purpose of obtaining new addresses for implantees and not for the purpose of individually locating and interviewing the implantees disclosed by this order. As I indicated in argument, plaintiffs’ counsel are not to employ techniques that would result in an effective bounty for locating potential class members. The underlying purpose of this order is to promote effective dissemination of the notice, not the acquisition of new class members (although that may be the effective result).
“P.A. Kirkpatrick,
J.”
The Honourable Madam Justice P.A. Kirkpatrick