Chronic Pain: Chronic Pain: Factors in assessing marijuana-related - - PowerPoint PPT Presentation

‘Chronic’ Pain: Chronic Pain:

Factors in assessing marijuana-related damages damages Eric Turkienicz McCague Borlack LLP g

Litigating Cannabis

Marijuana can play a role in multiple aspects of i i f liti ti a given piece of litigation:

• Cause of the loss (inebriated trip and fall,

social host liability product liability) social host liability, product liability)

• Damages for future care or out of pocket

medical expenses (medical marijuana medical expenses (medical marijuana prescriptions)

• The loss itself (property loss related to
• The loss itself (property loss related to

marijuana plants or grow-ops)

Will legalization change things?

• Tough to say. Cases involving truly legal

ij (i di l) h t t marijuana (i.e. non-medical) have not yet made their way through the system. Attit d d i diff b t

• Attitudes and views differ between
• jurisdictions. B.C. appears to have a much

more developed jurisprudence on the issues more developed jurisprudence on the issues

• Can look ta past cases to see what direction

trends ill go in M st ass me freq enc of trends will go in. Must assume frequency of these arguments will now increase.

Stewart v. TD Insurance (2013)

• Ontario Divisional Court decision
• Homeowners suffered a theft and made claim to insurance provide for loss
• f 11 marijuana plants growing in backyard. Claimed value was $50,000.
• Homeowners were permitted to grow the plants for personal medical use

under Health Canada exemption. I l ifi d h l “l d i ” ( d d d ) d

• Insurer classified the plants as “landscaping” (under extended coverage) and

not “personal property”. Paid only $11,000.

• Grow-op exclusion did not apply since plants were subject to Health Canada

exemption for personal use exemption for personal use.

• Court found that plants were “personal property”. They begin as landscaping

and exist in that form so long as they remain in the soil. But the moment the loss occurred (i.e. the thief pulled them out of the soil), they were converted ( p ) y to personal property.

• Court remarked that it is also possible to classify them as crops subject to

annual harvesting and therefore also personal property while in the soil

Stewart Cont.

• HOWEVER! Policy in question stated that the property had to be

“usual to the ownership or maintenance of a dwelling”

• Use of “a” means that it applies to dwellings in general. Because at

the time fewer than 1/3 of 1% of dwellings were authorized to grow marijuana plants for personal use, they are not “usual to” the

• wnership or maintenance of dwellings.
• Claim for increased payout denied.
• Take-away: with new legislation allowing every dwelling to grow up

y g g y g g p to four plants for personal use, claims of this nature may increase and the judge’s decision no longer applicable

Joinson v. Heran (2011)

• Negligent back surgery performed by Defendant
• Plaintiff smoked marijuana regularly as a replacement for morphine

j g y p p dosages to deal with pain and to address anxiety related to further medical procedures.

• Plaintiff obtained his marijuana from a non-profit company he

j p p y himself started for the specific purpose of dispensing medical

• marijuana. The company was not legally authorized to do so but the

authorities “tolerated” its dispensing of cannabis.

• Plaintiff smoked 20 grams a day or over 20 joints which was………..

a lot.

• Plaintiff did not technically have any legal exemption at the time

y y g p permitting him to purchase medical marijuana.

Joinson cont.

• Plaintiff sought $822,308 for the purchase of medical marijuana for

the rest of his life

• Defence argued that those damages should be disallowed since:
• He was not legally allowed to buy marijuana at the time
• There was no evidence of the medical justification for the
• There was no evidence of the medical justification for the

marijuana

• Plaintiff could use other, synthetic forms of marijuana as a

replacement replacement

• Plaintiff was a regular smoker before so the medical marijuana

would not be an added cost

• Plaintiff did not actually have a prescription for medical marijuana
• Plaintiff did not actually have a prescription for medical marijuana
• Plaintiff countered by saying his illegally obtained stuff was better

Joinson Cont.

• Court said:
• “As a judge of the law, I cannot make orders that directly or indirectly endorse unsanctioned

accessing of medical marijuana At the same time my role is now to assess medical needs and accessing of medical marijuana. At the same time, my role is now to assess medical needs and necessities.”

• Held that even without an actual prescription or “legal” right to purchase the marijuana, the

evidence submitted showed that the plaintiff derived a medical benefit from the consumption

• Applying the recommended dosages put forth by Health Canada, the plaintiff’s submitted costing,

pp y g g p y , p g, and the market rate for legally sourced cannabis, the Court ordered $30,000 in damages for future cost of purchasing marijuana, assuming the Plaintiff could get a Health Canada certificate allowing him to do so.

• So long as the medical marijuana is both “medically justifiable and reasonable” damages will be

d d f it f t t t awarded for it as a future cost component

• Issue is medical necessity, not mere benefit. In this case, if he didn’t use marijuana, he would have

to use morphine, which was far worse.

• Take Away: Plaintiffs can ask for defendants to pay for their marijuana, even without a prescription.

As the literature develops on the benefits of cannabis as pain relief will this become akin to As the literature develops on the benefits of cannabis as pain relief, will this become akin to payments for tylenol and other over the counter painkillers?

Torchia v. Siegrist (2015)

• Plaintiff injured when his minivan was rear-

d d t t li ht ended at a stop light

• Used prescription medical marijuana (two

j i t d ) t d l ith th i joints a day) to deal with the pain

• Requested $105,000 in damages for future

di l ij h medical marijuana purchases

• Relied on Joinston to argue that marijuana

was medically appropriate in managing pain and should be ordered as damages

Torchia cont.

• Judge disagreed
• Court stated that, even though he had a prescription, because

, g p p , plaintiff did not put forward any medical evidence, expert reports,

• etc. that marijuana is capable of treating pain, they could not reach a

conclusion that it was medically appropriate in this case.

• Distinguished Joinston by saying that in that case, the marijuana

was a substitute for morphine and so it avoided the health issues associated with that drug

• Take Away: Even with a prescription, damages for medical

marijuana are not guaranteed. Still need to lead evidence that it is both medically appropriate in general and medically appropriate for this Plaintiff.

Murphy v. Hofer (2018)

• Plaintiff injured in MVA in T-bone collision
• Plaintiff used non-prescribed cannabis oil for

pain relief and to help him sleep. Oil had CBD b t t THC CBD but not THC.

• Sought $100,000 for purchase of cannabis

il i f d

• il going forward
• Doctor supported use of CBD oil by plaintiff

but did not prescribe it since it was too

• expensive. Plaintiff was buying it illegally.

Murphy cont.

• Court rejected the claim for CBD oil
• Relied on Torchia and said that there is simply no evidence of the

p y benefits of CBD oil beyond anecdotal accounts and so it is not medically necessary.

• Further, benefits of CBD oil could be found in other legal,

, g , prescription medications

• Said that since the plaintiff was not complying with regulations in

getting the oil, Joinston requires the court to reject the claim g g , q j (unusual since Joinston involved a granting of the claim in a similar scenario)

• Take away: Even with the “harmful” aspects of marijuana removed,

y p j , the court requires robust evidence of its efficacy as a pain relief drug to qualify for damages. Plaintiffs must comply with the law.

Kirby v. Loubert (2018)

• Plaintiff received spinal cord injuries in MVA at intersection
• Plaintiff already using marijuana to treat a pre-existing injury. Using

y g j p g j y g 40 grams a day (smoking, vaporizing, edibles), which is truly astonishing

• Use of marijuana affected his answers at medical assessments

j before trial and his own testimony. Made up answers sometimes. Poor memory. Paranoid.

• May have even contributed to the collision re response times.

y p

• Plaintiff claimed for $1,281,000 for medical marijuana to treat all

sorts of conditions. He had not been paying anything for his pot before-hand since he had some sort of “sponsorship” deal with a p p local supplier.

Kirby v. Loubert (2018)

• Plaintiff received spinal cord injuries in MVA at intersection
• Plaintiff already using marijuana to treat a pre-existing injury. Using

y g j p g j y g 40 grams a day (smoking, vaporizing, edibles), which is truly astonishing

• Use of marijuana affected his answers at medical assessments

j before trial and his own testimony. Made up answers sometimes. Poor memory. Paranoid.

• May have even contributed to the collision re response times.

y p

• Plaintiff claimed for $1,281,000 for medical marijuana to treat all

sorts of conditions. He had not been paying anything for his pot before-hand since he had some sort of “sponsorship” deal with a p p local supplier.

Kirby Cont.

• Court questioned whether increase to 40 grams per day

was a result of the accident was a result of the accident

• Court accepted opinions of numerous experts who

testified that marijuana was effective in treating pain and was justifiable and necessary for the plaintiff. While they said that this plaintiff required a higher dose, they could not agree that 40 grams was necessary g g y

• Because the plaintiff was already taking marijuana at a

medically appropriate level pre-accident, no damages d d awarded

• Take away: personal belief as to how much weed you

need to manage pain is irrelevant need to manage pain is irrelevant

Despres v. MacDonald Crane Service (2018)

• New Brunswick Court of Appeal case

Pl i tiff i j d h d i k l id t

• Plaintiff injured hand in workplace accident
• Plaintiff claimed $320,298 for 4g per day of

ij marijuana

• Plaintiff was already using it recreationally pre-

accident so much so that he was seen as accident, so much so that he was seen as addicted

• Trial judge rejected claim for medical marijuana
• Trial judge rejected claim for medical marijuana.

Plaintiff appealed that decision

Despres cont.

• Plaintiff relied on the BC cases to support his argument
• Experts split on whether marijuana was medically necessary

p p j y y

• CA accepted opinions of experts that it was necessary but found

that those opinions were based on inaccurate, subjective reporting

• f the plaintiff

p

• The plaintiff’s description of the pain he was suffering to the experts

did not match the objective evidence (surveillance videos, witness testimonies, various reports). CA re-affirmed lower court decision , p )

• Take away: Plaintiff’s must back up their self-reporting with objective

evidence of the pain (or at least avoid inconsistent objective evidence) to qualify for medical marijuana ) q y j

Chiasson v. Theriault (2018)

• New Brunswick case
• Plaintiff injured in MVA rear-end collision

j

• Claimed $140,000 for future cost of medical marijuana which she

had been prescribed post-accident

• Court agreed that medical cannabis was justified and medically

Court agreed that medical cannabis was justified and medically accepted but also found that the plaintiff and her husband were habitual users of recreational marijuana pre-accident.

• Reduced claim and awarded $35 000 for medical marijuana going

Reduced claim and awarded $35,000 for medical marijuana going forward

• Take-away: If you used it regularly before, you may not qualify for

damages once it becomes “necessary” damages once it becomes necessary