Hagan v. Dalkon Shield Claimants Trust, (1998) 231 A.R. 153 (QB)

• Judge: Paperny, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 30, 1998
• Citations: (1998), 231 A.R. 153 (QB)

Hagan v. Dalkon Shield Claimants Trust (1998), 231 A.R. 153 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. AU.081

Donna P. Hagan and Lawrence A. Hagan (plaintiffs) v. Dalkon Shield Claimants Trust (defendant)

(Action No. 9703-21451)

Indexed As: Hagan v. Dalkon Shield Claimants Trust

Alberta Court of Queen's Bench

Judicial District of Edmonton

Paperny, J.

July 30, 1998.

Summary:

Hagan was married from 1969 to 1991. She and her husband decided to postpone having children until she established her career. She wore a Dalkon Shield intrauterine device for five months in 1972. In 1980, Hagan and her husband were unsuccessful in their attempts to conceive a child. Tests revealed that Hagan had a blocked right fallopian tube. She declined to undergo further medical investigation at that time. Hagan and her husband continued to engage in unprotected sex, but were unable to conceive. The couple separated in 1988. Hagan and her husband sued the Dalkon Shield Claimants Trust, alleging that her use of the Dalkon Shield caused her to become infertile.

The Alberta Court of Queen's Bench dismissed the action where Hagan and her husband failed to prove that the use of the Dalkon Shield caused her infertility. How­ever, the court provisionally assessed dam­ages.

Damage Awards - Topic 64

Injury and death - Body injuries - Genitals - Reproductive system - Hagan and her husband agreed to postpone having children until she established her career - In 1972, Hagan was fitted with a Dalkon Shield (an IUD) - She experienced cramp­ing and heavy bleeding and had the IUD removed after five months - From 1980 on the Hagans were unable to conceive a child - Tests indicated that Hagan's right fallopian tube was blocked - The Hagans separated in 1988 and were divorced in 1991 - Hagan and her husband sued the Dalkon Shield Claimants Trust, claiming that use of the IUD caused her infertility - She sought damages for physical and emotional injury - The Alberta Court of Queen's Bench dismissed the action - However, the court provisionally assessed $70,000 general damages for Hagan's physical and emotional loss - See para­graphs 181 to 187.

Damage Awards - Topic 583

Torts - Injury to third parties - Emotional injury - Hagan and her husband agreed to postpone having children until she estab­lished her career - In 1972, Hagan was fitted with a Dalkon Shield (an IUD) - She experienced cramping and heavy bleeding and had the IUD removed after five months - From 1980 on the Hagans were unable to conceive a child - Tests indicated that Hagan's right fallopian tube was blocked - The Hagans separated in 1988 and were divorced in 1991 - The husband wanted children - Hagan and her husband sued the Dalkon Shield Claimants Trust, claiming that use of the IUD caused her infertility - The Alberta Court of Queen's Bench dismissed the action - However, the court provisionally assessed $10,000 dam­ages for the husband's emotional injury as a result of Hagan's infertility - See para­graph 199.

Damages - Topic 1257

Losses by third parties - Loss of con­sortium - Persons entitled to claim - Hagan used the Dalkon Shield for five months in 1972 - From 1980 on the Hagans were unable to conceive a child - Tests indicated that Hagan's right fallopian tube was blocked - The husband began to drink heavily - The Hagans separated in 1988 and were divorced in 1991 - Hagan and her husband sued the Dalkon Shield Claimants Trust, claiming that use of the Dalkon Shield caused her infertility - The husband claimed for loss of consortium under ss. 43(1) and 43(2) of the Domestic Relations Act - The Alberta Court of Queen's Bench stated that it preferred the view that the husband was not a "spouse" under the Act where he was divorced at the time of the claim - The court held that it was not necessary to determine the issue where it had dismissed the action and held that there was no loss of consortium - See paragraphs 194 to 198.

Evidence - Topic 7005

Opinion evidence - Expert evidence - Range of cross-examination - The Alberta Court of Queen's Bench stated that "[e]x­perts are permitted to refer to authoritative treatises or texts on which they rely for their opinion, and relied-upon excerpts of these works are admissible in evidence. If the work forms the basis of the expert's opinion, counsel is allowed to read extracts to the expert and obtain his or her judg­ment on them. ... For the purposes of cross-examination, documents can be used to confront a witness with an authoritative opinion which may contradict the view expressed by the witness on the stand, if the witness recognizes the work. Where a witness is asked about a work and expresses ignorance of it or denies its authority, extracts from it cannot be used as evidence. If authority is admitted, an expert can be asked for an explanation between it and his or her own testimony insofar as apparent differences are con­cerned. In so doing, the document is used as a means of testing the expert witness' conclusions." - See paragraphs 154 to 155.

Evidence - Topic 7010

Opinion evidence - Expert evidence - Admissibility of information used to sup­port opinion - [See Evidence - Topic 7005 ].

Evidence - Topic 7014

Opinion evidence - Expert evidence - Textbooks, treatises and literature - [See Evidence - Topic 7005 ].

Cases Noticed:

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289, refd to. [para. 134].

McGhee v. National Coal Board, [1972] 3 All E.R. 1008; [1973] 1 W.L.R. 1 (H.L.), refd to. [para. 134].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243; 140 D.L.R.(4th) 235, refd to. [para. 135].

Horsley v. MacLaren - see Horsley (Next friend of) v. Ship Ogopogo.

Horsley (Next friend of) v. Ship Ogopogo, [1972] S.C.R. 441, refd to. [para. 135].

R. v. Anderson (1914), 22 C.C.C. 455 (Alta. C.A.), refd to. [para. 154].

Muir v. Alberta (1996), 179 A.R. 32; 132 D.L.R.(4th) 695 (Q.B.), refd to. [para. 181].

Antonopoulos v. Gillespie (1992), 10 B.C.A.C. 161; 21 W.A.C. 161 (C.A.), refd to. [para. 181].

Waitek v. Dalkon Shield Claimants Trust (1996), 934 F. Supp. 1068 (U.S. Dist. Ct.), affd. (1997), 114 F.3d 117 (9th Cir. U.S.C.A.), refd to. [para. 181].

Eve, Re (1986), 71 N.R. 1; 61 Nfld. & P.E.I.R. 273; 185 A.P.R. 273 (S.C.C.), refd to. [para. 181].

Kelly v. Lundgard et al. (1996), 189 A.R. 34 (Q.B.), refd to. [para. 181].

Morrison v. Novelli, [1986] B.C.J. No. 172 (C.A.), refd to. [para. 181].

Muller v. Erlach, [1993] B.C.J. No. 825 (S.C.), refd to. [para. 181].

Hygard v. Gailiunas (1997), 202 A.R. 161 (Q.B.), refd to. [para. 181].

Lanthier-Rochon v. Sim (1996), 21 O.T.C. 182 (Gen. Div.), refd to. [para. 181].

Brennan v. Alexis, [1984] O.J. No. 555 (H.C.), refd to. [para. 181].

Best v. Samuel Fox & Co., [1951] 2 All E.R. 116 (C.A.), affd. [1952] 2 All E.R. 394 (H.L.), refd to. [para. 189].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620; [1981] 1 W.W.R. 289, refd to. [para. 190].

Joyce v. Canadian Pacific Hotels Corp. et al. (1994), 161 A.R. 53 (Q.B.), refd to. [para. 191].

O'Hara et al. v. Belanger (1989), 98 A.R. 86; 69 Alta. L.R.(2d) 158 (Q.B.), refd to. [para. 196].

Taylor v. Rossu (1998), 216 A.R. 348; 175 W.A.C. 348 (C.A.), refd to. [para. 196].

Andre v. Blake, [1991] N.W.T.R. 351 (S.C.), refd to. [para. 197].

Rose v. Dujon et al. (1990), 108 A.R. 352 (Q.B.), refd to. [para. 200].

Statutes Noticed:

Domestic Relations Act, R.S.A. 1980, c. D-37, sect. 43 [para. 189].

Authors and Works Noticed:

Cramer, D.W., et al., Tubal Infertility and the Intrauterine Device (1985), New Eng. Journal of Medicine, vol. 312, No. 15, p. 941 [para. 76, footnote 2].

Eschenbach, David A., Acute Pelvic In­flammatory Disease, Clinical Gynecolo­gy, vol. 1, c. 44, generally [para. 75, footnote 1].

Eschenbach, David A., Fertility and Sterili­ty, Earth, Motherhood and the Intrauterine Device, Feb. 1992, generally [para. 96, footnote 4].

Mumford, Stephen D., and Kessel, Elton, Was the Dalkon Shield a safe and effec­tive intrauterine device? The conflict between case-control and clinical trial study findings, Fertility and Sterility, June 1992, vol. 57, No. 6, p. 1151 [para. 78, footnote 3].

Picard, E.I., and Robinson, G.B., Legal Liability of Doctors and Hospitals in Canada (3rd Ed. 1996), p. 283 [para. 200].

Sopinka, J., Lederman, S.N., and Bryant, A.W., The Law of Evidence in Canada (1992), pp. 560 [para. 154]; 562 [para. 155].

Counsel:

Jerry Cairns, for the plaintiffs;

Brent F. Windwick, for the defendant.

This action was heard by Paperny, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on July 30, 1998.