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A month after publishing a study on whiplash recovery in Saskatchewan, Dr. J. David Cassidy is under attack. If this were just some Canadian spat, people in the United States might exhibit their usual boredom with things north of the border. But in this case, in the States at least, lawyers are now paying the sort of attention baseball fans might if the Expos won the World Series. The Canadian contenders in this fight include a biostatistician who worked on the controversial whiplash study. She’s suing Cassidy for wrongful discharge, claiming he told her to manipulate data improperly. Another former colleague claimed in 1996 that the study’s independence was compromised by the insurance company that paid for it. Medical experts have addressed rallies in Canada to denounce the study. And U.S. and Canadian trial lawyers, concerned about the study’s potential for use in the tort reform movement, are trying to pick Cassidy’s study apart. Sounds like a lot of fuss over a dry scientific paper from Saskatchewan. But when the prestigious New England Journal of Medicine published the study, a lot of people started taking notice. The study concludes that whiplash patients heal more quickly under a no-fault insurance system — which is mostly lawyer-free — than under one permitting crash victims to sue. Cassidy, then a professor at the University of Saskatchewan (he’s now at the University of Alberta), headed a team of researchers from that institution, Toronto and Sweden who studied how Saskatchewan’s 1995 switch to a no-fault auto insurance system affected the length of time it took victims of whiplash injuries to heal. The study compared the final six months of the old tort system, in which crash victims could sue to recover for their injuries, to 1995, when no-fault took effect. Under Saskatchewan’s version of no-fault, injured drivers recover for medical costs and lost income. But they can’t collect for pain and suffering and are effectively barred from suing. NO GAIN, NO PAIN? Whiplash claims dropped 28 percent under no-fault, and the time that claims remained open was more than cut in half, the study found. Under the old system, plaintiffs got money for pain, which discouraged their recovery, the study says. Take pain-and-suffering damages out of the equation, the study claims, and people get better more quickly. No gain, no pain. The study’s final sentence waves a red cape in front of personal injury lawyers. “Legislators,” it says, “may wish to consider the advantages of removing payments for pain and suffering from compensation systems.” Richard Middleton, president of the Association of Trial Lawyers of America, says, “Unless it’s exposed for what it is — nothing — it will fuel efforts by people who have agendas to bring about tort reform.” Just 13 U.S. states have no-fault systems, which limit the right to sue, according to the Insurance Information Institute, an industry group. And although no state has adopted no-fault since the 1970s, “it’s always on the agenda in state legislatures,” says Middleton. Congress has also considered national no-fault legislation. No-fault has been attacked by lawyers and crash victims in Saskatchewan for providing inadequate compensation and for immunizing manufacturers and bad drivers — even drunk or malicious drivers — from being sued. “You’re not taking lawyers out,” says Maurice Laprairie, former president of the Law Society of Saskatchewan, “you’re taking the justice system out. [The insurer] is judge, jury, executioner — and doctor.” Critics of Cassidy’s study say it reaches a result preordained by Saskatchewan Government Insurance (SGI), a government-created company that has a monopoly over basic automobile personal injury insurance in the province. The company paid $911,000 (Canadian) to fund the study. Critics also say that the study misleadingly uses the date on which claims were closed as the date of recovery, without proving that people were actually better. For their part, Cassidy, SGI and the University of Saskatchewan all say that the study was done in a scientific manner, free of improper influence. They say that criticism of Cassidy is meant to divert attention from a study that threatens the economic interest of lawyers and others in the tort system. Some of the criticism has been closer to home. In 1996, Dr. Ken Yong-Hing was removed as head of the whiplash study in favor of Cassidy. In a letter to the president of the Saskatchewan Trial Lawyers Association, Yong-Hing wrote, “I feel that SGI’s interference in the research will expose the results and conclusions of the study, when they are published, in question regarding their objectivity and impartiality and cast serious doubt on their validity.” Barrie McLennan, assistant dean of research at the university, sent a letter refuting the charges. “SGI personnel have not interfered with the research work,” he wrote, concluding that “the letter written by Dr. Ken Yong-Hing is misleading, mischievous and malicious.” “Large money grants from corporations with an interest in the outcome of research have great power to influence university administrators,” says Yong-Hing, declining to comment further on his 1996 letter. Then last spring, Dr. Emma Bartfay sued Cassidy and the University of Saskatchewan, claiming that she was forced to quit after refusing to follow instructions that would have required “unethical” actions, according to papers of her suit, filed in Saskatoon. Bartfay v. Univ. of Saskatchewan, No. 99-1079 (Sask. Q. B. Ct.). The suit claims that “in or about September 1998. … Cassidy instructed her to produce results and graphs that would support the conclusion that an injured person’s time (date) of settlement is a good proxy for that person’s time (date) of recovery.” Both Cassidy and the University deny Bartfay’s charges. A university committee determined that there was no cause to investigate. Cassidy and the university counterclaimed, charging that Bartfay stole or destroyed data.

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