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Somalia veterans’ malaria drug case is too old to proceed, National Attorney argues

09 Dec 17
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Veterans of the Somalia mission who say they had been permanently damaged by the anti-malarial medication they had been forced to take during that installation have waited too long to proceed with a class-action lawsuit launched almost 18 years ago, the federal government says

Justice Department attorney Elizabeth Richards advised the Ontario Superior Court on Friday that the lawyers for Ronald Smith, a former member of this now-disbanded Airborne Regiment who’s the lead plaintiff in the case, have provided no reasonable excuse for the amount of time it has taken to move the situation forward.

It would not be possible now, Ms. Richards told Justice Robbie Gordon, for the authorities to call witnesses who may provide accurate testimony around how mefloquine was doled out to the troops who participate in the Somalia mission of the early 1990s. That means, she said, there can’t be a fair trial. Justice Gordon has been asked to determine whether the case can be certified as a class action a lot of years after the initial documents were filed in the court.

Ms. Richards said the judge has to balance the possible unfairness of this delay, which both she and Wayne Stickland, the attorney for Mr. Smith, concur was surplus, and the right of Mr. Smith and the other specialists to receive justice for the harms they say they’ve suffered.

Mr. Stickland told the court that his office has been contacted by hundreds of Somalia specialists who state mefloquine left them with long-term emotional issues. Whether this case is thrown out, he said, another plaintiff will immediately step ahead to launch an identical lawsuit.

But Ms. Richards stated that could run against the principle that defendants are entitled to a finality of justice. “We say nobody could deliver a subsequent class actions,” if Mr. Smith’s case isn’t allowed to move, she told the court. “Once it has been dismissed for flaws, it has been dismissed.”

That seemed to concern Justice Gordon, who requested both sides to return after Christmas to present their arguments about whether this class action is the end of the line for Somalia veterans who wish to sue for the damages which they blame on mefloquine.

According to Mr. Smith’s statement of claim, the medication he was obligated to take in Somalia as part of a badly implemented clinical trial left him with a plethora of residual mental-health difficulties, including depression, aggressive behavior, poor concentration, social isolation and suicidal ideas. He states his Charter rights were breached and is alleging negligence and battery.

His lawsuit, which premiered in 2000, sat almost dormant before being taken over and restarted last year by Mr. Stickland.

In explaining the delay to Justice Gordon, Mr. Stickland said there was a lengthy debate between attorneys about who was best positioned to represent Mr. Smith in court.

Additionally, he said, the situation was hampered by Mr. Smith’s own psychological condition, a lack of scientific proof in the first years to link mefloquine into the kinds of symptoms suffered by the veterans, and a lack of expert witnesses.

That evidence has become more solid and he’s procured an expert witness, Mr. Stickland said.

However, Ms. Richards said none of these explanations are reasonable. Concerning the scientific evidence, she said “a plaintiff does not get to sit back until they receive the best possible evidence to proceed.”

And even when Mr. Smith’s mental state improved in 2010, the prior attorneys for Mr. Smith did nothing to move the situation forward, she said.

Regardless of the amount of vets who say mefloquine caused severe difficulties, Ms. Richards said, “the conclusion so far is that there’s not any conclusive scientific evidence” to connect mefloquine into the permanent psychiatric ailments they’ve described.

A couple of the soldiers on the Somalia mission were charged in the beating death of a Somali teenager, and lots of others complained of alarming dreams, depression and hallucinations.

Health Canada upgraded the warning labels for the medication in 2016 to highlight that certain side effects may persist for months or years after the medication is stopped, and some can be irreversible in some patients.

The Canadian army conducted a review of the medical literature this year and concluded there’s not any evidence that the drug causes long-term issues. However, it now says choice drugs are the preferred choices for soldiers who deploy to countries where malaria is a risk.

Courtesy: The Globe And Mail

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