COURT FILE NO.: 100792/99
DATE: 20120601
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kin Hang Lee aka Cliff Lee and Sui Yan Lee aka Susanne Lee, minors by their Litigation Guardian Chiu Lee aka Charles Lee et al
Daniel J. Balena and Howard Smith, for the Plaintiffs
- and -
Toronto District School Board, City of Toronto, George Brown Jr., Trisha Babits, Heather MacDonald, and Tevin McNeil
Boyd Critoph, for the Defendants other than Tevin McNeil
HEARD: May 30, 2012
EVIDENTIARY RULING
LAUWERS J.:
[1] The plaintiffs move for a direction that the defendants’ neurosurgical expert, Dr. M. C. Wallace, not be permitted to use a document as an addendum to his formal report, and, inferentially, that he be prohibited from giving opinion evidence relating to the “crumbling skull” defence related to damages, which the plaintiffs say was only recently asserted.
The Factual Context
[2] On November 26, 1998, the plaintiff Cliff Lee was a seven year old grade 2 student at Cresthaven Public School. Between 2:20 p.m. and 2:30 p.m. during recess he experienced what Dr. Richard G. Perrin, a neurosurgeon, described as “an intracranial catastrophe.” Cliff alleges that Tevin McNeil, another seven year-old grade 2 student, punched him on the right side of his head. The plaintiffs say that the defendants are liable for Cliff Lee’s injuries.
[3] Dr. Perrin’s first report, dated September 23, 2011, takes the position that Tevin McNeil’s punch caused the rupture of an undiagnosed arteriovenous malformation (“AVM”) in Cliff Lee’s brain:
No eyewitness accounts of what was apparently an intentional blow to the head and the intermediate sequelae are recorded. Nevertheless, given the reconstructed temporal sequence: emerging from class for recess at 2:20 p.m., commencing to play soccer thereafter, and then discovered on the ground holding his head by the end of recess, less than 10 minutes later and by 2:30 p.m., it appears more likely than not that the blow(s) to the head and the intracranial catastrophe are casually related.
In this event, one would postulate that the head blow(s) resulted in commotion of the brain suspended in cerebrospinal fluid and causing disruption of delicate AVM vessel(s). The blow would not need to be of sufficient force to render the patient unconscious. Rather, an abrupt blow (punch to the head) strategically applied at the frontotemporal area could be responsible for such intracranial commotion and vascular disruption.
[4] The defendants rely on Dr. Wallace’s expert opinion. His report is dated November, 2010 and was supplied to the plaintiffs well within the time frame required by the Rules of Civil Procedure. He participated in the University of Toronto Brain Vascular Malformation Study Group, which treats and reviews patients with cerebral vascular disorders. Dr Wallace’s report takes the position that Cliff Lee’s bleed was not related to the punch but was spontaneous. In the course of describing the reasons for that conclusion, his report notes:
Brain arteriovenous malformations are unusual conditions that initially felt to be congenital likely developed in early childhood [sic]. Having hemorrhagic presentations are the most common form of presentation in childhood, whereas seizures represent a more common presentation in adults. The natural history is estimated to be anywhere between 1-4% per year risk of bleeding from an arteriovenous malformation.
[5] Dr. Perrin testified in chief that he accepted the accuracy of this rate of risk and he was not cross-examined on the issue by Mr. Critoph.
[6] Bruce Michael was the actuary called by the plaintiffs to calculate the damages. The significance of the rate of risk assessment emerged in his cross-examination. Mr. Michael admitted that his calculations did not take into account the possibility that Cliff Lee’s projected personal care expenses might have been incurred as a result of him suffering an AVN event at some other time. Mr. Michael said that he had not done so because he was not provided with information on the issue.
[7] Mr. Critoph then took Mr. Michael through a series of calculations, based on the statistic in Dr. Wallace’s report that people with an AVN like Cliff have a 1-4 % chance every year of the AVN rupturing. The plaintiffs did not object to these questions. I have tabulated Mr. Michael’s calculations:
Probability of AVN Event Occurring to Cliff Lee
Annual Risk
1 %
2.5 %
4 %
Elapsed Time
20 years
18.2 %
40 %
56 %
30 years
26 %
53 %
71 %
40 years
33 %
64 %
80.5 %
[8] The defence’s submission on the “crumbling skull” issue is that Cliff Lee had a significant chance of experiencing an AVN event had it not occurred when he was seven years old, and that this fact must be taken into account in determining damages.
Framing the Issue
[9] By letter dated May 7, 2012, Mr. Critoph wrote to Mr. Balena putting him on notice that he would be relying on:
…a copy of the current webpage of the Toronto Brain Vascular Malformation Study Group of which Dr. Wallace is a member. The paragraph at page 3 item 4 documents the group’s findings regarding the annual risk of a bleed of an AVM being approximately 4%. This was the finding of the group as set out in the article provided to you with my letter dated April 23, 2012. The risk is also expressed as a cumulative risk in the chart on page 2. Please consider these materials to be an addendum to Dr. Wallace’s report.
[10] In the webpage to which defence counsel referred it states:
- Bleeding: this is the most serious complication of an AVM. It is the main reason for recommending treatment. Bleeding from an AVM will occur in about 4 out of 100 people with a brain AVM every year. Sometimes, a bleed may be small and produce no noticeable symptoms. Approximately 50% of the bleeds are significant with permanent disability in half of these cases and death in the other half.
[11] At the close of the defendants’ case but before Dr. Wallace testified, counsel for the plaintiff moved to exclude the webpage and, effectively, for a direction prohibiting Dr. Wallace from being questioned on the issue of the annual per year risk of bleeding from an AVM for the purpose of determining damages.
The Plaintiffs’ Position:
[12] Mr. Smith submits that the “crumbling skull” issue is not expressly referred to in the Statement of Defence. His position is that the proposed addendum falls outside of the opinion provided by Dr. Wallace. That opinion, Mr. Smith argues, was addressed to the causation issue in respect of liability, whereas the defence is now trying to use the statistic as part of a “crumbling skull” defence relating to the determination of appropriate damages, and that is something quite different. This is, says Mr. Smith, a new field altogether. He relies on the reasoning of the Court of Appeal in Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham, [2000] O.J. No. 4428, 51 O.R. (3d) 97 (C.A.).
[13] Marchand was about negligence in managing a birth. One issue concerned the admissibility of a doctor’s expert evidence on the significance of the baby’s heart rate decelerations depicted on something called an “NST strip”. The trial judge ruled that the party had failed to comply with rule 53.03. The Court of Appeal describes the situation at paras 31 and 32:
However, applying rule 53.08, the trial judge allowed Dr. Fields to testify about indications of late decelerations on the NST strip on the ground that counsel for the respondents would have sufficient time to prepare their cross-examination of Dr. Fields. In making this ruling, he cautioned counsel for the appellants (and to a lesser extent counsel for the respondents) that, at some point, attempts to examine experts on matters outside their reports would cause prejudice to the other side requiring the exclusion of testimony.
The appellants' counsel proceeded to examine Dr. Fields extensively on the NST strip. He then began to examine Dr. Fields on the relationship between oxygen deprivation and fetal reserve, and specifically about bradycardia (abnormally slow heart rate). Counsel for the respondents objected on the ground that the concept of bradycardia appeared nowhere in Dr. Fields' report. The appellants' counsel argued that the report dealt with the standard of care in treating an overdue mother, and that the questions went to signs of fetal distress some hours before the delivery. The trial judge ruled that the appellants' counsel could not pursue the "bradycardia" line of questioning because Dr. Fields' report made no mention of when fetal distress was determined.
[14] The law, as the Court of Appeal noted at para 35, is set out in Thorogood v. Bowden (1978), 21 O.R. (2d) 385, 89 D.L.R. (3d) 604 (C.A.), where Lacourcière J.A. reasoned as follows at p. 386 O.R.:
We interpret the law with respect to medical reports to be that a medical expert is not to be narrowly confined and limited to the precise contents of his report, but he has a right to explain and amplify. What was done here, in our view, . . . was to expand on what was latent in the medical report, and it did not open a new field.
[15] Applying this reasoning the Court held in Marchand at para 38:
In our view, these cases indicate that the "substance" requirement of rule 53.03(1) must be determined in light of the purpose of the rule, which is to facilitate orderly trial preparation by providing opposing parties with adequate notice of opinion evidence to be adduced at trial. Accordingly, an expert report cannot merely state a conclusion. The report must set out the expert's opinion, and the basis for that opinion. Further, while testifying, an expert may explain and amplify what is in his or her report but only on matters that are "latent in" or "touched on" by the report. An expert may not testify about matters that open up a new field not mentioned in the report. The trial judge must be afforded a certain amount of discretion in applying rule 53.03 with a view to ensuring that a party is not unfairly taken by surprise by expert evidence on a point that would not have been anticipated from a reading of an expert's report.
[16] The Court concluded that because the expert’s report did not refer to bradycardia, the trial judge had not erred in refusing to allow the expert to give evidence on that issue.
[17] The plaintiffs also rely on Edmonton (City) v. Lovat Tunnel Equipment Inc., [2000] A.G. No. 378 (Alta. Q.B.). There the court referred to the purpose of the Alberta equivalent of rule 53.03, noting that the rule “was formulated for the purpose of preventing disruption of the trial process which occurs when litigants are taken by surprise. If the parties know ahead of time what expert opinions they will encounter they can adjust to meet the evidence without asking for adjournment.” (para. 11). This picks up the point about surprise made by the Court of Appeal in Thorogood v. Bowden.
[18] Mr. Smith asserts that this new use of Dr. Wallace’s risk statistic, not in relation to causation but in relation to damages, catches them by surprise and is prejudicial.
The Defence Position
[19] Mr. Critoph submits that the “crumbling skull” issue was a live one once liability was denied. He adds that causation relates both to liability and to damages. Mr. Critoph questions the good faith of the objection, pointing out that the plaintiffs did not raise an explicit objection to this evidence until the virtual close of the defendants’ case.
Discussion
[20] The court’s general approach to admit relevant and probative evidence is prescribed by rule 53.08 of the Rules of Civil Procedure:
53.08(1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.
(2) Subrule (1) applies with respect to the following provisions:…Subrule 53.03 (3) (failure to serve expert's report).
[21] The Statement of Defence does not refer expressly to the “crumbling” skull issue. It has much boilerplate in it, including the following denials:
The Board state that the Plaintiffs’ alleged injuries and damages are exaggerated, remote and not recoverable at law…
If the Plaintiff [Cliff Lee] suffered the injuries and damages alleged in the Statement of Claim, then such damages and injuries have resulted from factors which are entirely unrelated to the incident in question. Rather, those injuries and damages were caused and contributed to as a result of injury, illness disease or another medical condition which predate the incident…
While it may be questioned whether these words raise the “crumbling skull” issue, there is no doubt that the facts as they unfolded in the pre-trial stages of this action certainly did so.
[22] The proposed evidence appears to be both relevant and probative on the damages issue. Despite the words of rule 58.03, the plaintiffs seek to exclude the evidence altogether for the purpose of determining damages. The exclusion of apparently relevant and probative evidence is not a remedy for a possible breach of the Rules that a court should hasten to accept, since the exclusion of such evidence could imperil the just determination of a case, contrary to a foundational principle of the Rules.
[23] The immediate issue is the use to which a purely factual statement can permissibly be put in this lawsuit. That statement, found in Dr. Wallace’s expert report, is this: “The natural history is estimated to be anywhere between 1-4% per year of risk of bleeding from an arteriovenous malformation.”
[24] This statement has been in evidence for a long time and it has been known to the plaintiffs. I note that apart from its present in Dr. Wallace’s report, the issue of the likelihood of future haemorrhage was the subject of the article attached to Dr. Wallace’s report entitled “The Natural History and Predictive Features of Hemorrhage from Brain Arteriovenous Malformations,” published in Stroke 2009, 40:100-105. It was authored by, among others, Dr. Wallace himself.
[25] The statement could easily have been challenged by the plaintiffs’ expert Dr. Perrin if it was in error. Far from challenging it, Dr. Perrin accepted it as accurate when questioned on it by plaintiffs’ counsel.
[26] I have real difficulty understanding how it could be surprising to the plaintiffs that a fact relevant to causation in the sphere of liability would also be relevant to the determination of damages. I noticed that Mr. Smith’s assertion of surprise and prejudice was just that: he did not describe or explain the surprise or describe the prejudice. There was time for him to explore this issue with Dr. Perrin before he testified, and to seek leave to file a supplementary report if necessary. Since Mr. Smith did not explain why the objection was taken only at the end of the defendants’ case, it frankly appears to be strategic, not substantive.
[27] In Thorogood, the Court of Appeal permitted an expert to expand in oral evidence “on what was latent in the medical report,” as long as “it did not open a new field.” I observe that the critical fact relied on by the defence is not latent but patent; it does not “open a new field,” which I understand to denote “a new medical field”. Picking up the language of the Court in Marchand, there is no doubt that the critical statistic was “touched on” in Dr. Wallace’s report.
[28] Sometimes an expert’s opinion is confined to a narrow ambit. So, for example, in Marchand, the Court of Appeal said:
Dr. Fields' report dealt with the topic of fetal distress in connection with his opinion on the standard of care. The appellants' counsel, however, sought to elicit from Dr. Fields, through the bradycardia questions, evidence going to causation. Thus, the bradycardia evidence was directed to an issue not addressed in the report. Accordingly, even if the trial judge erred in his interpretation of rule 53.03, no prejudice arises from that error as Dr. Fields had not been qualified to give expert evidence about causation.
[29] As I interpret these words, the doctor’s opinion related only to the standard of care, the ambit of which was confined in his opinion. It seems to me that an opinion about causation is contextually different and has, by its very nature, possible application both to liability and to damages. As the Supreme Court noted in Athey v. Leonati, [1996] 3 S.C.R. 458 at para 35:
The so-called "crumbling skull" rule simply recognizes that the pre-existing condition was inherent in the plaintiff's "original position". The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage (citations omitted).
In other words, the tort measure of damages inherently requires the court to assess the original position. If the plaintiff is suffering from a condition that may produce debilitating effects in the original position, then the damages assessment must take those into account.
[30] At the end of the day, a medical expert can only give evidence on medical facts. The use to which the parties and the court can put that medical fact in the case is a matter of law. I am unable to see how the same basic scientific or medical fact, in this instance, that there is a “1-4% per year of risk of bleeding from an arteriovenous malformation,” is a fact that should or must be treated differently in one context, being liability, than in another, being damages.
[31] I therefore dismiss the plaintiffs’ motion for a direction that the addendum be excluded and that Dr. Wallace be prohibited from testifying on the risk statistic in relation to damages. I invite the plaintiffs to consider bringing a motion under rule 53.08 after Dr. Wallace has testified for an adjournment so that they can call evidence in reply on the issue. This is a judge-alone trial; I am advised by the parties that they expect argument will take one day so it would not trouble the court at all if Dr. Wallace’s evidence were heard, with the reply evidence and argument to follow on another day.
P.D. LAUWERS J.
RELEASED: June 1, 2012