Dr. Barry Bruce

The Court of Appeal for Ontario allowed an appeal in a medical negligence action, ordering a new trial.

The plaintiffs alleged delayed diagnosis of hydrocephalus in their child, leading to brain damage.

The trial jury found no breach of standard of care.

The appellate court found that the defendants' expert witness exceeded his role by opining on the credibility and reliability of the parties, thereby breaching his duty of independence.

The trial judge erred by not specifically instructing the jury to disregard these improper opinions and by failing to exclude them.

Despite the appellants' counsel not objecting at trial, the errors constituted a substantial wrong or miscarriage of justice, tainting the jury's verdict and warranting a new trial.

The plaintiffs brought a motion to disqualify the defendants' proposed expert medical witness, Dr. Karen Fleming, from testifying on the standard of care.

The court reviewed Dr. Fleming's two reports and her testimony during a voir dire, finding that her opinions were based on improper credibility assessments and fact-finding, rather than objective expert analysis.

Dr. Fleming's reports and cross-examination revealed a lack of impartiality and a preferential treatment of the defendants' evidence while disregarding the plaintiffs' evidence without adequate explanation.

The court concluded that Dr. Fleming lacked the necessary independence and objectivity to provide an impartial opinion, rendering her not a properly qualified expert under the Mohan framework.

Consequently, her evidence was deemed inadmissible, and the plaintiffs' motion to disqualify her was allowed.