Motherisk Update

A Canadian laboratory is facing fierce accusations of performing unreliable and inadequate drug and alcohol tests on vulnerable families for over two decades, resulting in children being forcibly separated from their parents when child welfare organizations across five Canadian provinces used the lab to determine the suitability of parents under investigation for substance abuse. From 1991 to 2015, Motherisk Drug Testing Lab at the Hospital for Sick Children in Toronto (Sick Kids) performed an estimated 35,000 tests, many of which returned false positives and led to the separation of families, and in some cases, incarceration. Following an investigation by the Toronto Star, the Ontario government appointed retired Court of Appeal justice Susan Lang to conduct an inquiry into the lab’s procedures and protocols, which she completed in December of 2015 and determined that Motherisk’s results were unreliable, inadequate, and that its scientists lacked forensic training or oversight.

 

Upon investigation by The Fifth Estate, CBC Radio’s The Current, and the Toronto Star, it was revealed that Motherisk’s hair-strand tests were successfully disputed in court cases in the United States decades before any problems with the tests were similarly investigated in Canada.

 

Motherisk Problems in the US

In fact, a capital murder trial in Colorado in 1993 threw out Motherisk’s hair-strand test results as “not competent evidence.” Julia Klein, de facto Motherisk Lab manager at the time, testified in the admissibility hearing in this death penalty case that the Motherisk hair-strand test used on the defendant had indicated that he had been ingesting 55 grams of cocaine per month at the time of the murder.

 

In his ruling, Justice Donald Marshall stated that Motherisk’s test were inadmissible due to the fact that they were “not competent evidence,” and said Ms. Klein’s evidence reminded him of “someone shooting at a target with a bow and arrow, and that Miss Klein shot the arrow, the arrow landed and she then drew the bulls eye around the arrow, a big round circle, to show it met its mark.”

 

What makes the situation even more jarring is that, sixteen years later, in the Canadian case of Tamara Broomfield, a mother accused of feeding her toddler cocaine in near-lethal doses, founder and director of Motherisk Lab, Dr. Gideon Koren, claimed that Motherisk’s lab and practice was “accepted by the courts in different jurisdictions,” including Canada and the U.S. In fact, Koren went on to cite the abovementioned Colorado murder case specifically, falsely testifying: “About 10 years ago, Your Honour, we were asked by the Colorado court in a case of murder to test hair for cocaine in an individual who claimed to be addicted to the drug, and to the best of my knowledge, our results, not were just accepted, but had an impact on the judgment.”

 

Bloomfield was ultimately sentenced to seven years in prison, and it wasn’t until new evidence arose in 2014 that cast doubt on Motherisk’s result accuracy that her case was overturned.

 

Sick Kids has since apologized for the false Motherisk tests, with a public website statement from Dr. Michael Apkon, president and CEO:

“We deeply regret that practices in and oversight of this particular program did not meet SickKids standards of excellence … We remain resolved in our efforts to ensure that we have effective oversight and the highest standards of quality and safety in all of our programs.”

 

Upon learning of about Motherisk’s misleading international proficiency testing results in the Spring of 2015, Sick Kids closed Motherisk Lab and Dr. Koren retired to Israel.

 

Court Proceedings To Begin

But for many who were harmed by the decades-long inaccuracy of Motherisk’s hair-strand tests, this apology and lab closure isn’t nearly enough,  and this month saw the issue hotly debated in a Toronto courtroom.  A national class-action lawsuit is being proposed that seeks millions in damages for the families that were affected by Motherisk’s false lab reports, including the 275 plaintiffs who are named in a series of lawsuits against Sick Kids and members of lab management. The class of plaintiffs can include anyone whose hair-strand test came back positive from Motherisk Lab between 2005 and 2015, which was the duration of Susan Lang’s government-commissioned review.

 

In their case, the plaintiff states that the defendants were “negligent in (their) operation and supervision” of Motherisk, and should be held responsible for the consequences that followed. In his defense, Koren denied the claims, stating that the tests were “accurate and reliable for their intended purpose” and provided clinical information “relevant to the medical care and safety of children.” In a joint statement of defense, Sick Kids and former lab manager Joey Gareri also disputed the claims, stating that if custody decisions were indeed based on the tests, the involved children’s welfare agencies were ultimately responsible for the suffering of the separated families.

 

The defendants have also rejected the  rationale behind the class-action nature of the suit, as they claim that a class-action suit is not appropriate due to the highly individualized nature of each plaintiff’s case, as well as the fact that while Motherisk supplied child welfare agencies with hair-strand test results, they also fulfilled requests made by physicians for clinical purposes and changed their lab practices alongside internationally accepted standards for hair testing during that time as well.

 

If the class-action nature of the suit is certified, then individual plaintiffs will have to decide whether to pursue their own claims or join the class. For now, an independent commission has been appointed to investigate each relevant child protection case in Ontario to determine whether or not Motherisk’s hair-strand tests were the deciding factor in removing these children from their homes in response to child welfare concerns.

UPDATE: Superior Court Justice Paul Perell ruled on Thursday that he would not certify the class-action lawsuit against Motherisk stating that individual lawsuits would be more effective due to the “intensely individualistic” nature of the claims.

“The significant damages are caused not by the common unreliability of the tests, but by an individual’s test being wrong with sometimes tragic consequences, class members should not suffer the disappointment of a class action that will not take them far enough on the path to substantive justice”

Lawyer for the plaintiff, Jody Brown, plans to appeal the decision to Divisional Court saying

“The main thrust of the decision, that these individuals should proceed to soldier on in individual cases, we fundamentally disagree with, it would be uneconomical to have thousands of (people) litigating on the same issues and it would deny people access to the courts.”

 

http://www.cbc.ca/news/canada/motherisk-colorado-court-case-1.4364862
https://www.thestar.com/news/gta/2017/10/12/lawyers-spar-over-whether-class-action-into-motherisk-drug-testing-scandal-should-go-ahead.html
http://www.cbc.ca/fifth/episodes/2017-2018/motherisk-tainted-tests-broken-families
https://www.thestar.com/news/gta/2017/11/02/judge-rejects-proposed-class-action-over-motherisk-drug-testing-scandal.html

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