Ari Krajden

The plaintiffs sued multiple defendants, including an insurer and its subcontractors, for various torts arising from the handling of a statutory accident benefits claim.

The defendants brought Rule 21 motions to strike the claims for lack of jurisdiction and disclosing no reasonable cause of action.

The court refused to strike the action for lack of jurisdiction because of an outstanding constitutional challenge to the Insurance Act.

However, the court struck all tort claims against the moving defendants, except for the claim of intentional infliction of emotional distress, finding it was plain and obvious they could not succeed.

The court also struck the plaintiff's constitutional challenges to the Statutory Accident Benefits Schedule as an abuse of process.

At the outset of a personal injury trial arising from a motor vehicle accident, the defendant moved to exclude expert evidence based on a brain SPECT scan used to diagnose a traumatic brain injury (TBI).

The court held that using a SPECT scan to diagnose TBI and distinguish it from anxiety or depression constitutes novel science.

Applying the reliable foundation test from R. v. J.-L.J., the court found the methodology had not been tested, lacked peer review, had no known error rate, and was not generally accepted by the relevant scientific community.

The evidence was ruled inadmissible.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiffs' action for damages arising from a motor vehicle accident.

The plaintiff driver claimed he was cut off by an unidentified vehicle, causing him to lose control and crash into a ditch.

The insurer argued the accident was solely the plaintiff's fault and that there was no corroborating evidence of an unidentified driver as required by the OPCF-44 Family Protection Endorsement.

The court heard viva voce evidence, including from a newly discovered independent eyewitness who had called 911.

The court found the eyewitness's testimony credible and reliable, corroborating the plaintiff's account.

The insurer's motion was dismissed, and partial summary judgment was granted to the plaintiffs, declaring the accident was caused by an unidentified driver and the evidentiary requirements of the OPCF-44 endorsement were met.