The plaintiffs moved to strike the jury in a motor vehicle collision trial, alleging a breach of the rule in Browne v. Dunn by the defence.
The defence cross-examined the plaintiffs' medical experts on an alleged inconsistent symptom (fluid leaking from the ear) reported by the plaintiff to the Mayo Clinic, without having put this specific inconsistency to the plaintiff during his cross-examination.
The court found a serious breach of the Browne v. Dunn rule, which impaired trial fairness and the jury's ability to assess credibility.
The court determined that neither a correcting instruction nor recalling the plaintiff would remedy the damage, and therefore granted the motion to strike the jury.
