Court File and Parties
COURT FILE NO.: CV14-065 DATE: 20170530
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Beverly Mole and Darryl Mole, Plaintiffs John A. Tamming, for the Plaintiffs
- and -
Dr. Stuart Manwell, Defendant Andrea H. Plumb and Kelly C. Tranquilli, for the Defendant
HEARD: May 29, 2017
REASONS FOR DECISION
Conlan J.
I. Introduction
The Nature of the Proceeding
[1] This is a medical negligence case.
[2] The Plaintiffs, patient Beverly Mole (“Beverly”) and her son Darryl Mole (collectively the “Moles”), have sued Dr. Stuart Manwell (“Manwell”).
[3] The trial, by jury, is set to start in Owen Sound on Monday, June 5, 2017. Damages have been agreed upon. Liability is disputed. The issues for trial are (i) informed consent, (ii) whether Manwell was negligent, and (iii) causation.
[4] On September 24, 2013, Beverly underwent surgery performed by Manwell at the hospital in Owen Sound. The procedure was a left total knee joint replacement.
[5] Unfortunately, Beverly was injured during the procedure. Due to complications from the vascular injury to her popliteal artery, on September 30th, Beverly had to endure an above-knee amputation of her left leg.
[6] In March 2014, the Statement of Claim was issued, alleging that there was a lack of informed consent to the surgery and that Manwell performed the operation negligently.
The Motions
[7] On May 29, 2017, this Court heard two Motions.
[8] The Moles move for an Order restricting Manwell to calling one expert witness at trial.
[9] The Moles are concerned that they will be prejudiced if the relief that they seek is not granted. They argue that for Manwell to be permitted to call more than one expert witness at trial would result in redundancy. Finally, they submit that two of the proposed experts to be called at trial by Manwell, Drs. James Waddell (“Waddell”) and Hugh Cameron (“Cameron”), are the authors of reports that were served late as per the Rules of Civil Procedure.
[10] The Moles have one expert witness – Dr. Joseph Schatzker (“Schatzker”). Manwell has three proposed expert witnesses – Dr. J. Rod Davey (“Davey”), Waddell and Cameron.
[11] All four experts are orthopaedic surgeons, as is Manwell.
[12] Manwell moves for an Order precluding Schatzker from testifying at trial about a modified surgical technique for total knee joint replacement as first discussed in Schatzker’s report dated January 26, 2016.
[13] Alternatively, if Schatzker is allowed to give that testimony at trial, then Manwell requests that he be permitted to call as witnesses at trial all three of his proposed experts – Davey, Waddell and Cameron.
[14] In the further alternative, if Schatzker is allowed to give that testimony at trial, Manwell requests that he be permitted to call Davey as an expert witness at trial, plus Waddell and Cameron but as “fact witnesses” only.
[15] Manwell submits that Schatzker’s evidence regarding the modified surgical technique is too novel and not sufficiently reliable, and hence, inadmissible. Further, its limited probative value is outweighed by its significant prejudicial effect.
[16] With regard to his first alternative relief sought, Manwell argues that a fair trial of the issues may not be possible without enabling him to call all three of his proposed expert witnesses.
The Expert Evidence in a Nutshell
[17] The materials filed on the Motions are voluminous, necessarily so, because they contain all of the reports from all four experts.
[18] Schatzker is the author of four reports dated November 13, 2014, January 26, 2016, April 6, 2016 and December 16, 2016.
[19] His penultimate opinion, as first expressed in his November 2014 report, is that Manwell fell short of the prevailing standard of care in the way in which he performed the surgery on Beverly.
[20] In his January 26, 2016 report, Schatzker opines that, although Manwell used an accepted technique for the surgical procedure, because Beverly was obese, a modified technique ought to have been employed. The final paragraph of the said report reads as follows:
In my view, Dr. Davey argues that Dr. Manwell used an accepted technique and in this he is correct but for the fact that Dr. Manwell should have recognized that he was operating on an obese patient. This patient had a long standing flexion and varus deformity of the knee. In such a patient, the technique had to be modified to protect the artery during the bone cut of the tibial and this was only possible if one made a medial and posteromedial release prior to the cut. This had to be done to make it possible to insert a retractor as a guard for the advancing saw blade.
[21] Davey is the author of numerous reports with the following dates: May 14, 2015, July 15, 2015, March 31, 2016, April 13, 2016, May 11, 2016 and February 23, 2017.
[22] Davey’s opinion, as first expressed in his May 2015 report, is that Manwell was competent and was not responsible for any injury to Beverly.
[23] Waddell is the author of three reports dated April 5, 2016, March 20, 2017 and March 23, 2017.
[24] Waddell’s opinion, as first expressed in his April 2016 report, is that Manwell did not fall below the standard of care.
[25] Cameron is the author of two reports dated March 24, 2016 and March 27, 2017.
[26] Cameron’s opinion is that Manwell was not negligent.
[27] Succinctly put, none of Davey, Waddell and Cameron is in agreement with Schatzker about the modified surgical technique. To say the least, the three proposed expert witnesses to be called at trial by Manwell are all somewhat mystified by Schatzker’s evidence on this issue. As Davey put it in one of his reports – “I don’t know of any literature that would agree with Dr. Schatzker’s recommendation”.
The Issues
[28] There are only two issues to decide on these Motions: (i) should Schatzker be permitted to testify at trial about the modified surgical technique, and (ii) if so, what is the result, either (a) Manwell is limited to calling one expert witness at trial, or (b) Manwell may call all three of his expert witnesses, or (c) perhaps Manwell may call two of them, or (d) Manwell may call Davey as an expert witness and the other two, Waddell and Cameron, as fact witnesses.
II. Analysis
[29] I begin by noting that I recognize the importance of my decision on these Motions. It is common ground that, in terms of negligence, the Moles’ case turns on the anticipated evidence of Schatzker with regard to the modified surgical technique.
[30] In other words, bluntly stated, unless the Moles are prepared to run a trial solely on the issue of informed consent, a decision to prevent Schatzker from testifying about the modified surgical technique may be akin to granting summary judgment in favour of Manwell.
[31] So be it. I cannot in good conscience dismiss the primary relief being sought by Manwell simply because it may result in no day in Court for Beverly. The law is the law.
The General Test for the Admissibility of Expert Opinion Evidence
[32] The test for admissibility of expert evidence is well settled.
[33] Although the issue is before this Court by virtue of Manwell’s Motion, the burden of proof is on the Moles to demonstrate, on a balance of probabilities, that the proposed evidence is admissible.
[34] There is nothing improper about the Court making this determination in the absence of a full voir dire which includes live testimony. Often, as here, the admissibility decision is based on written materials which include an exhaustive outline of all of the proposed expert evidence on both sides.
[35] Opinion evidence is generally inadmissible; expert opinion may be an exception in certain circumstances. R. v. Abbey (2009), 2009 ONCA 624, 246 C.C.C. (3d) 301 (Ont. C.A.), at paragraph 71.
[36] There are four basic requirements for the admission of expert evidence: (i) it must be relevant, (ii) it must be necessary to assist the trier of fact, (iii) it must not be the subject of any exclusionary rule, and (iv) it must be adduced through a properly qualified expert. R. v. Mohan (1994), 89 C.C.C. (3d) 402 (S.C.C.), at pages 411-415.
[37] To establish logical relevance, one may ask whether the tendered evidence makes the proposition at issue more likely to be than if that tendered evidence was absent. R. v. J. (J.-L.) (2000), 2000 SCC 51, 148 C.C.C. (3d) 487 (S.C.C.), at page 507.
[38] Logical relevance is not enough, however, as legal relevance must also be established. This involves an assessment of the probative value versus the prejudicial effect. Put another way, a cost-benefit analysis must be undertaken. The Court may consider the extent to which the proposed expert evidence is grounded on proven facts, the extent to which it supports the inference sought to be made from it, the extent to which it relates to something actually at issue in the case, the reliability of the evidence, its complexity and whether it might distort the fact-finding process, and the extent to which the evidence is controversial. R. v. K.(A.) (1999), 137 C.C.C. (3d) 225 (Ont. C.A.), at paragraphs 77-89.
[39] As can be seen, the Court has an important gatekeeper role. It is not sufficient for the party tendering the proposed expert evidence to argue that it would be helpful. Helpfulness is not enough.
[40] Although reliability, per se, is not listed as one of the factors in Mohan, supra, threshold reliability may affect all of those factors. R. v. F.(D.S.) (1999), 132 C.C.C. (3d) 97 (Ont. C.A.), at page 110.
[41] As for necessity, as indicated above, mere helpfulness is not enough. The expert must provide information likely outside the experience and knowledge of the trier of fact. Mohan, supra, at pages 413-414.
[42] Put another way, the necessity requirement is met where it can be said that lay persons are apt to come to the wrong conclusion without expert assistance, or where access to important information will be lost unless the trier of fact borrows from the expert evidence. R. v. D.(D.) (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 (S.C.C.), at paragraphs 46-56.
[43] On whether the proposed expert evidence is the subject of an exclusionary rule, there is some controversy as to how far the evidence can intrude into the ultimate issue to be decided by the trier of fact.
[44] We know for certain that there is no outright rule that proposed expert evidence is inadmissible if it goes to the ultimate issue in the case. R. v. Burns (1994), 89 C.C.C. (3d) 193 (S.C.C.), at page 201; R. v. Bryan, [2003] O.J. No. 1960 (C.A.), at paragraphs 14-18.
[45] We also know for certain that the closer the proposed evidence comes to the ultimate issue to be decided, the stricter the scrutiny of that evidence will generally be. Mohan, supra, at pages 413-414; J.(J.-L.), supra, at paragraph 37.
[46] The prohibition against the admission of expert evidence that goes to the ultimate issue to be decided is not, today, absolute (if it ever was), but it may still be an important factor in deciding to exclude, or curtail in its scope, the proposed expert evidence. R. v. Lucas, [2009] O.J. No. 5330 (Sup. Ct.), at paragraph 4.
[47] Courts, particularly since the Supreme Court of Canada decided R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, have been careful to not ignore the dangers associated with the admission of expert evidence.
[48] As for the need for a properly qualified expert, it is not expected that the proposed expert be the most qualified, whether through experience or knowledge or both.
[49] That someone else may be more qualified goes to weight and not to admissibility.
[50] What is required is that the proposed expert possess special or peculiar knowledge that goes beyond that of the trier of fact. Mohan, supra, at pages 414-415; R. v. Thomas (2006), 207 C.C.C. (3d) 86 (Ont. Sup. Ct.), at paragraph 18.
Some Commentary on Novel Expert Evidence
[51] There is no dispute here that Schatzker’s evidence regarding the modified surgical technique is novel.
[52] Davey, a highly experienced and well-regarded orthopaedic surgeon and associate professor at University of Toronto’s department of surgery, in his March 31, 2016 report, stated that he was not aware of any literature/references that would support Schatzker’s opinion (pages 4 and 6).
[53] Waddell, an orthopaedic surgeon and professor of surgery with 100-150 knee replacement surgeries per annum under his belt, in his April 5, 2016 report, stated that the issue of obesity is largely irrelevant (page 5). Remember the reference to obesity in Schatzker’s January 26, 2016 report.
[54] More specifically, in his March 20, 2017 report, Waddell, who teaches surgical trainees the technical aspects of knee replacement surgery, stated that he has never used the modified surgical technique referred to by Schatzker, is not aware of other surgeons using the said technique, is not aware of any reference to the said technique anywhere in the literature, has never seen it performed, has never heard of its recommendation, and considers it to be dangerous (pages 2 and 3).
[55] Cameron, an orthopaedic surgeon who has been performing knee replacements since the mid-1970s, 4000 or 5000 operations in total, in his March 24, 2016 report, stated that he had no idea what Schatzker is talking about (page 4).
[56] I adopt the following submissions made by counsel for Manwell at paragraphs 24 through 27 of their Factum, none of which is disputed by the Moles in terms of the state of the law pertaining to novel scientific evidence:
The Honourable Stephen T. Goudge has cautioned that the judge must bear the heavy burden of being the ultimate gatekeeper in protecting the legal system from unreliable expert evidence. Such evidence can contribute to miscarriages of justice. The Ministry of the Attorney General appointed Justice Goudge as Commissioner of the Inquiry into Pediatric Forensic Pathology in Ontario to conduct a systemic review of the circumstances that allowed the opinions of forensic pathologist Dr. Charles Smith to be accepted as expert evidence where, among other issues, there was no reliable scientific basis for many of his opinions. As a result of this systemic review, Justice Goudge made a number of recommendations to restore public confidence in the legal system. In particular, Charter 18 of the “Goudge Report” addressed the role of the trial judge in protecting the legal system from the effects of flawed scientific evidence.
In summary, the Goudge Report made the following observations and recommendations in respect of the expert and novel scientific theory: (a) an important exclusionary rule is that evidence that lacks sufficient threshold credibility should not be admitted; (b) novel science is a particular example where the reliability of the purported science from which the expert opinion is drawn will need to be evaluated; (c) evidence-based expert evidence is required to establish the requisite reliability; not purported evidence based only on personal experience; (d) expert evidence should be subjected to the critical methodological analysis adopted by the Supreme Court of Canada in R. v. J.-L.J. (e) bald assertion of conclusory opinions, dogmatism and a failure to engage with the relevant literature all raise concerns regarding a lack of threshold reliability. The jurisprudence is clear that careful review of such expert opinions on this basis is required to avoid the danger of a jury simply accepting expert evidence of a “witness of impressive antecedents” as “virtually infallible and as having more weight than it deserves”. (f) tools to determine the threshold reliability of expert opinion include: (i) whether there exists an acceptable body of evidence or acceptance of the theory to objectively validate the opinion; (ii) the existence of peer review of the theory or technique; (iii) the existence of publication; and (iv) recognition or acceptance in the relevant scientific field.
Justice Goudge allowed that in determining whether there is sufficient threshold reliability to justify the admission of expert evidence, one consideration is whether sufficient material exists, either from the proffered expert or from competing experts, to allow the jury to understand the relevant controversies and frailties that may surround the scientific evidence. However, Justice Goudge qualified this comment:
I would add only that the presence of competing experts does not obviate the need for the trial judge to determine that all the expert evidence has sufficient threshold reliability to justify its admission.
The concerns and principles arising from the Goudge Report have equal application to civil actions.
A Look at What Schatzker Says Himself
[57] The issue of the modified surgical technique first arises in the last paragraph of Schatzker’s January 26, 2016 report (see the quotation above in these Reasons).
[58] There, no references are made as to whether the said technique is in any way recognized in the larger medical community.
[59] In his later report dated April 6, 2016, Schatzker stated that his opinion (which presumably includes the notion of the modified surgical technique) is based on what he has taught and practiced and what his colleagues teach and practice (page 2). No further particulars are provided as to whether, and to what extent, the said technique is recognized in the larger medical community.
[60] In his December 16, 2016 report, in terms of the notoriety of the modified surgical technique, Schatzker stated only that it has always been his practice to adjust the surgical procedure to the anticipated difficulties to be encountered. In other words, one must not act like a “robot” when performing surgery (pages 1 and 2).
[61] I pause here to note that Davey, Waddell and Cameron are not the only highly qualified experts in this case. Schatzker is no slouch. He is an orthopaedic surgeon at Sunnybrook Health Sciences Centre. He is a surgery professor at University of Toronto. He is an author in the medical field.
The Legal Principles Applied to the Facts in this Case
[62] Quite appropriately, counsel for Manwell take no issue with the following: (i) that Schatzker’s evidence is logically relevant, (ii) that it is necessary, (iii) that it is not the subject of any exclusionary rule, and (iv) that Schatzker is a properly qualified expert.
[63] Manwell’s submissions focus on two things: legal relevance (the cost-benefit analysis, in other words, probative value versus prejudicial effect), and, most crucial, reliability.
[64] On the cost-benefit analysis, I disagree with counsel for Manwell.
[65] If the trial proceeds, Schatzker will have to testify and be cross-examined on the issues of informed consent and causation, even if he is precluded from saying anything about the modified surgical technique.
[66] At least one of the Defence experts will have to testify at trial, regardless of whether Schatzker is prevented from commenting on the modified surgical technique.
[67] Thus, to permit testimony from Schatzker on the modified surgical technique would mean (i) some prolongation of his evidence, both in direct and cross-examination, (ii) some lengthening of the evidence of the Defence expert, both in direct and cross-examination, and (iii) possibly the hearing of the evidence of Waddell and/or Cameron.
[68] We are not talking about adding weeks to the length of the trial but rather a few days, in my view.
[69] That cost is outweighed by the probative value of Schatzker’s evidence.
[70] Assuming for the moment that it passes the threshold reliability concern, it is unquestionably highly probative. Essentially, according to Schatzker, by behaving like a “robot” and not modifying his traditional total knee joint replacement surgery technique to account for Beverly’s specific circumstances, including her obesity, Manwell increased the prospect of disaster, which is precisely what occurred.
[71] The issue of reliability is a more difficult call in this case.
[72] I must remember that the presence of competing experts, Davey, Waddell and/or Cameron, does not obviate the need for me, as the gatekeeper, to ensure that expert evidence has sufficient threshold reliability to justify its admission.
[73] As Madam Justice D. Wilson pointed out at paragraph 14 of Her Honour’s decision in Khelifa v. Sunrise Property, 2014 ONSC 3218, I must not simply take the easy way out and pronounce that reliability concerns go simply to weight and instruct the jury accordingly.
[74] Justice Goudge pointed to some tools that may help determine the admissibility of novel scientific evidence. Counsel for Manwell are correct that many of them work against the admission of Schatzker’s evidence regarding the modified surgical technique.
[75] First, there is nothing before me that there exists an acceptable body of evidence or acceptance of the theory to objectively validate the opinion.
[76] Second, there is nothing before me that there exists peer review of the said technique.
[77] Third, there is nothing before me that there exists published literature on the said technique.
[78] On the other hand, there is some evidence, albeit through Schatzker himself, that there is an unknown degree of acceptance or recognition of the said technique in the medical community – his April 6, 2016 report, referred to above in these Reasons.
[79] Further, there is ample evidence, especially if all three of the Defence proposed experts are permitted to testify at trial, as to the alleged frailties and shortcomings associated with Schatzker’s opinion.
[80] Finally, apart from the tools identified by Justice Goudge, which were not meant to be exhaustive, there are three other factors that, in my view, support admission of Schatzker’s evidence regarding the modified surgical technique.
[81] First, it is comprehensible. It is not so novel or vague that is defies rebuttal, as evidenced from the opinions authored by Davey, Waddell and Cameron, especially Waddell who was able to provide reasons as to why the said technique is, in his view, dangerous.
[82] Second, in a similar vein, it is not overly complex. Simplicity does not equal reliability, however, the fact that counsel for Manwell, during submissions on the Motions, was able to hand up to the Court a one-page colour sketch of the technique in question provides some comfort that the jury will at least be able to identify what it is precisely that the experts are in disagreement about.
[83] Third and finally, it must be remembered that Schatzker’s evidence regarding the modified surgical procedure is not to be assessed in a vacuum. It is what Schatzker opines ought to have been done in this case, failing which the surgery was performed in a manner that fell below the standard of care expected, as opposed to being a slave to the same methodology over and over again.
[84] In other words, one must have due regard for the unique circumstances of the patient at hand.
[85] Although counsel for Manwell is correct that none of Davey, Waddell and Cameron is aware of this modified surgical technique, they are well aware of and accept the broader concept of the need to take into account the individual circumstances that present themselves to the operating surgeon.
[86] For example, in his April 5, 2016 report, Waddell recognizes the technical problems posed by Beverly in terms of her obesity and the degree of deformity of her left knee (page 5).
[87] While Waddell, Davey and Cameron all agree that Manwell carried out the surgical procedure competently and with due diligence in the face of those technical issues, Schatzker says otherwise – Manwell ought to have employed the modified surgical technique.
[88] I am not prepared to take that assessment away from the jury.
[89] Although a close-call, I conclude that the Moles have demonstrated on balance a sufficient threshold of reliability to justify the admission of Schatzker’s evidence on the modified surgical technique.
[90] What is the result of that decision? Specifically, should Manwell be limited to calling one expert witness at trial?
[91] The answer is no. I agree with Manwell.
[92] First, leave is not required in this case as Manwell does not intend to call more than three expert witnesses at trial.
[93] Second, during the course of oral submissions at Court on May 29th, Mr. Tamming abandoned the argument about late service of the reports authored by Waddell and Cameron.
[94] Third, any potential prejudice to be occasioned to the Moles caused by an imbalance between the number of expert witnesses on their side and that on the other can be alleviated in part by an instruction to the jury that the questions should not be answered simply by counting up the number of witnesses on each side of the aisle; the evidence of a fewer number of witnesses may be preferred over the evidence of a larger number. That is up to the jury.
[95] Fourth, to address the Moles’ redundancy argument, common sense and basic fairness suggest that where, as here, the expert evidence offered by one side is the subject of, at a minimum, questionable reliability and limited notoriety, the other side is entitled to demonstrate at trial that it is not simply a matter of one expert saying “X” and one expert saying that “X” is not legitimate.
[96] It unduly restricts Manwell’s right to properly and fully defend the claim to say that, on these particular facts, he cannot call any greater number than one expert to say that Schatzker is out to lunch (my phrase), solely because the Moles have nobody but Schatzker.
[97] Fifth and finally, I agree with counsel for Manwell that the decisions supplied by the Moles are distinguishable in that nearly all of them dealt with situations where, unlike here, leave was required under section 12 of the (Ontario) Evidence Act. And none of them dealt with a case involving, as here, rebuttal of novel expert evidence.
III. Conclusion
[98] For the above reasons, the Motion by the Moles is dismissed. The Motion by Manwell is allowed in the alternative.
[99] Schatzker may testify at trial about the modified surgical technique. Manwell may call at trial all or some of Davey, Waddell and Cameron.
Conlan J.
Released: May 30, 2017
