ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-45524
DATE: 20120326
BETWEEN:
AMIRA KHALID MO ELBAKHIET, ABDELRHMAN ALKH AHMED and MAHA AHMED, a minor, and NIEM AHMED, a minor, by their Litigation Guardian, ABDELRHMAN ALKH AHMED
Plaintiffs
– and –
DEREK A. PALMER, ROCKIE PALMER, METCALFE REALTY COMPANY LIMITED and KINGSWAY GENERAL INSURANCE COMPANY
Defendants
Joseph Y. Obagi, for the Plaintiffs
Kevin Nearing, for the Defendants, Derek Palmer and Rockie Palmer
HEARD: March 19, 20, 21, 22 and 23, 2012
RULING ON ADMISSIBILITY OF TESTIMONY ( VOIR DIRE ) OF DR. MUNSON
tOSCANO rOCCAMO J. (given orally)
Introduction
[ 1 ] The parties seek a ruling on the admissibility and scope of permissible testimony in relation to the evidence proposed to be received by the jury in this trial from Dr. Janet Munson.
Background
[ 2 ] Dr. Munson is a consulting neuropsychologist who was retained by the defence to examine the Plaintiff, Amira Elbakhiet, in relation to her complaints of post-concussive syndrome and related impairments, which she alleges arise from a motor vehicle accident which took place on July 7, 2007, and to provide an opinion as to whether Ms. Elbahkiet met the “threshold” under Bill 198. The report of Dr. Munson dated December 20, 2010 was served pursuant to Rule 53 and is found at Tab 1 of Exhibit “F” to this voir dire.
[ 3 ] The jury has already received evidence from a number of lay and expert witnesses who have suggested that Ms. Elbakhiet’s subjective complaints are genuine and consistent with the diagnoses of post-concussive syndromes, pain and depression. On behalf of Ms. Elbakhiet, the expert witnesses qualified to give opinion evidence regarding her medical condition include Dr. DiRenna, a pain specialist, Marcia Bamber, a treating physiotherapist, Laurie Warren, an occupational therapist, Dr. Beaulieu, a neurologist and Dr. Hall, a clinical psychologist.
[ 4 ] Of particular note is the fact that the jury has already heard part of the evidence of Dr. Hall who has provided psychotherapy to Amira Elbakhiet since 2008 for accident-related symptoms of post-concussive syndrome, pain and depression. In the course of treatment, Dr. Hall has administered and interpreted a number of neuropsychological and psychological tests to facilitate her treatment of Ms. Elbakhiet, and to provide a “base line” against which to monitor her patient’s progress over time. In addition to periodic reports of treatment, Dr. Hall has also prepared a report responding to the opinion of Dr. Munson.
[ 5 ] Neither the report of Dr. Munson nor that of Dr. Hall shall be tendered in evidence. Therefore, only that evidence which I rule to be admissible will be considered by the jury.
[ 6 ] I have already qualified Dr. Hall to give opinion evidence in the following areas: in the field of clinical psychology, the treatment of pain, rehabilitation and health psychology; in regards to the general standards applicable to the administration of psychometric testing in the field of neuropsychology, including the environment of test administration, normative standards, comparative groups, and statistical analysis of the results of psychometric testing. She has also been qualified in regards to the testing, scoring, and interpretation of tests which she administers and interprets in the usual course of her practice as a clinical psychologist.
[ 7 ] Dr. Hall’s opinion cannot be considered an opinion received pursuant to Rule 53 given her therapeutic relationship with the Plaintiff. The Plaintiffs have not retained a neuropsychologist to provide an opinion in response to Dr. Munson’s opinion. Given the experience of capable counsel representing Amira Elbakhiet in this trial, I surmise this reflects a reasoned decision which at least, in part, considers the fact that another neuropsychologist, Dr. Nicole Tellier, previously attempted neuropsychological evaluation of Ms. Elbakhiet, and the results of her testing were considered unreliable. Dr. Tellier refrained from drawing any definitive conclusion as to the reason why. Dr. Hall has already referred to Dr. Tellier’s findings and has testified why standardized testing cannot be safely applied to test takers such as Amira Elbakhiet who are Arabic and Sudanese and who lie outside the normative group due to cultural and linguistic barriers. Dr. Hall has also testified that, without the benefit of a qualified interpreter during testing, and by requiring testing to be performed under certain conditions of pain, fatigue and headache, the performance of the test taker could be affected.
[ 8 ] Amira Elbakhiet has already testified about the neuropsychological testing administered by Dr. Munson. Dr. Munson’s report confirms that on the first of two days of testing, the Arabic interpreter she engaged failed to show up. Dr. Munson’s report also reflects that at one point, Ms. Elbakhiet asked to stop the testing due to headache, but it was nonetheless continued.
[ 9 ] In the balance of her testimony, Dr. Hall is expected to respond to and vigorously challenge Dr. Munson’s conclusion that Ms. Elbakhiet has intentionally underperformed in testing to support alleged impairments arising from the motor vehicle accident.
[ 10 ] I find Dr. Munson and Dr. Hall have intersecting fields of expertise in that both are trained and qualified to review medical and psychological reports, carry out interviews of test subjects, and administer neuropsychological testing to arrive at a differential diagnosis. However, Dr. Munson alone is qualified to comment on a number of neuropsychological tests she has administered in relation to certain tests of effort. By contrast, Dr. Hall alone has the decided advantage to comment on information and conclusions developed over the course of more than three years of treatment of Ms. Elbakhiet.
[ 11 ] Dr. Munson’s report suggested that Ms. Elbakhiet deliberately underperformed during testing. This opinion clearly would have some bearing on a core issue at this trial, namely, the credibility of Amira Elbakhiet, and the subjective complaints she reports in support of a diagnosis of post-concussive syndrome. However, I would be remiss in neglecting to mention that Dr. DiRenna, Dr. Beaulieu, Ms. Bamber and others have testified with respect to objective signs of acceleration/deceleration injury, its relationship to post-concussive syndrome, its associated effects on cranial, cervical and other musculoskeletal systems, and its underlying role in chronic pain and headache.
The Parties’ Positions
[ 12 ] The Plaintiffs take the position that the evidence of Dr. Munson should be wholly excluded and that she should not be permitted to give evidence because the results of her testing are unreliable and, therefore, her opinion could only be offered on the ultimate issue of credibility, a subject within the exclusive province and domain of the jury to decide. The Plaintiffs also argue that she has, in the course of a voir dire, departed significantly from her report by addressing new diagnoses for Ms. Elbakhiet’s complaints.
[ 13 ] The Plaintiffs take the position that to allow Dr. Munson to testify that Amira Elbakhiet deliberately underperformed is to leave the impression with the jury that the “last man standing” depicts Amira Elbakhiet as a liar and a malingerer. In short, the Plaintiffs argue this creates an unacceptable risk the jury will place undue reliance upon Dr. Munson’s opinion and thereby abdicate its obligation to assess Amira Elbakhiet’s credibility.
[ 14 ] The Defendants respond that to exclude Dr. Munson’s testimony or even to allow her to provide limited testimony would bar her from doing what she is professionally obliged to do, that being to generate possible explanations for Amira Elbakhiet’s tests results, and then to express her opinion on the differential diagnosis most consistent with the results of medical review, clinical interview and testing. The defence argues that to permit this is to leave the Plaintiffs’ evidence from multiple witnesses to go unchallenged to the jury, resulting in lack of trial fairness. The Defendants maintain that the jury may be appropriately directed by mid-trial and final charge from relinquishing its obligation to determine credibility.
(Full remaining judgment text preserved exactly as in the source.)
Madam Justice Toscano Roccamo
Given Orally: March 26, 2012
Released for Publication: September 25, 2012
COURT FILE NO.: 09-45524
DATE: 20120326
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: AMIRA KHALID MO ELBAKHIET, ABDELRHMAN ALKH AHMED and MAHA AHMED, a minor, and NIEM AHMED, a minor, by their Litigation Guardian, ABDELRHMAN ALKH AHMED Plaintiffs – and – DEREK A. PALMER, ROCKIE PALMER, METCALFE REALTY COMPANY LIMITED and KINGSWAY GENERAL INSURANCE COMPANY Defendants
RULING ON ADMISSIBILITY OF TESTIMONY
Madam Justice Toscano Roccamo
Given Orally: March 26, 2012
Released for Publication: September 25, 2012