SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 05-CV-32615
DATE: 2012/02/02

RE: LINE LAMARRE, MARIO LEPAGE, and JONATHAN LEPAGE and MAXIME LEPAGE by their Litigation Guardian, LINE LAMARRE, Plaintiffs

AND

SHELDON CAMPBELL, and CAMPBELL CHIROPRACTIC HEALTH CENTRE, Defendants

BEFORE: J. Mackinnon J.

COUNSEL:
Amani Oakley, Counsel for the Plaintiffs

Stephen S. Appotive, Counsel for the Defendants

HEARD: January 13, 2012

ENDORSEMENT

[ 1 ] This is a chiropractic malpractice action. The plaintiffs allege that the defendant chiropractor was negligent in his treatment resulting in serious personal injuries to the plaintiff patient.

[ 2 ] Two of the expert reports served by the defendants form the basis of this motion. These are the reports of Dr. David Cassidy, dated August 29, 2011, and Dr. David King, dated September 17, 2011.

[ 3 ] In 2008 Dr. Cassidy was lead author of a report entitled Risk of Vertebrobasilar Stroke and Chiropractic Care: Results of a Population-Based Case-Control and Case-Crossover Study. He relied extensively on this study in his report prepared for this case. The plaintiffs assert that they require the foundational data, raw data, data sets and queries run and query results which form the basis of the 2008 study in order that their own expert may review and respond to it. They also say that this foundational data is necessary in order for the foundation and thereby the validity of Dr. Cassidy’s opinion in this case to be properly tested and weighed.

[ 4 ] Dr. Cassidy advised the defendants that the 2008 study was done under contract with the Ministry of Health and the University Health Network, the raw data is owned by them and their authorization would be necessary to the release of any of the requested data. Dr. Cassidy is prepared to cooperate to this end and has apparently raised the issue with the Ministry and UHN for their consideration.

[ 5 ] The plaintiffs submit that their request with respect to Dr. Cassidy falls within the scope of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, rule 31.06(3), which provides as follows:

SCOPE OF EXAMINATION

Expert Opinions

(3) A party may on an examination for discovery obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined that are relevant to a matter in issue in the action and of the expert’s name and address, but the party being examined need not disclose the information or the name and address of the expert where,

(a) the findings, opinions and conclusions of the expert relevant to any matter in issue in the action were made or formed in preparation for contemplated or pending litigation and for no other purpose; and

(b) the party being examined undertakes not to call the expert as a witness at the trial.

[ 6 ] In addition, they rely on an undertaking given at the defendants’ examination for discovery to comply with the rules with respect to experts’ reports to be subsequently delivered.

[ 7 ] The plaintiffs’ position is that the raw data forming the basis of the 2008 Cassidy study falls within the meaning of the words, “findings, opinions and conclusions” of Dr. Cassidy’s August 29, 2011 report. The defendants’ position is that they are not in possession, power or control of the data, nor is Dr. Cassidy, and that a third party motion on notice to the Ministry and UHN ought to have been brought.

[ 8 ] Dr. Cassidy included a review of the 2008 study in his report for the stated reason that “it is directly relevant to the issue of causation in this case.” That study was designed to investigate the association between chiropractic care and stroke and to compare this to the association between physician care and vertebrobasilar artery stroke. The 2008 study concluded “the association between chiropractic care and VBA stroke is likely explained by patients with dissection-related neck pain and/or headaches seeking care prior to their thromboembolic event and subsequent VBA stroke.” The study also suggested that “chiropractic care is neither necessary nor sufficient to cause VBA stroke” but that it could not “completely rule out chiropractic or primary physician care as an occasional component cause for stroke.” However those cases were considered to be “exceedingly rare and would likely have occurred anyway.”

[ 9 ] After his review of the 2008 study Dr. Cassidy went on to answer the five questions that had been directly posed to him by counsel for the defendants. All of the questions were generic to the medical issue rather than specific to this case or this patient. Three of the five questions were answered by stating: “I have addressed this issue in the previous section that describes my study”.

[ 10 ] The plaintiffs relied on Allen v. Oulahen , 1992 (ON SC) , [1992] O.J. No. 1661 (Gen. Div.) where a broad view of “findings” is set out in para. 26:

The word "findings" in rule 31.06(3) includes all the factual information that an expert relies upon in arriving at his opinions and conclusions. This would include "research in . . . books and journals" (see Beck, supra , at p. 82); the "documents, the calculations and the engineering data upon which the opinions and conclusions were drawn" (see Transmetro Properties Ltd. v. Lockyer Bros. Ltd. , (1985), 4 C.P.C. (2d) 273 (Ont. H.C.J.), quoted at p. 83 of my judgment in Beck); and the "factual data upon which the expert relied to arrive at his or her opinions and conclusions' " (see Beck, supra, at p. 85).

[ 11 ] The specific order made in that case required disclosure to be made of the name of studies read or relied upon by the expert in connection with forming his opinion, but did not include the underlining raw data that supported those studies. The reference that the court made in para. 24 to other cases where raw data was ordered produced was with respect to the data and scores collected by and in the possession of the expert psychologist who had assessed the party in question.

[ 12 ] Cacic v. O’Connor , 1990 (ON SC) , [1990] O.J. No. 200 (S.C.) was a case where the plaintiff was ordered to produce the raw data and test scores in the possession of its expert with respect to his assessment of the plaintiff. The result in Beck v. La Haie , [1989] O.J. No 1598 was similar. The court held that the raw data and scores of a psychologist in the possession, power or control of a party have to be disclosed. The case law is also clear that the raw data utilized by and in the possession of the expert or the party will be ordered produced.

[ 13 ] In our case, disclosure has been made in the August 29 report itself. The issue here is production of raw data that is not in the possession, power or control of the defendants or Dr. Cassidy.

[ 14 ] It is readily apparent why the plaintiffs want the raw data from the 2008 Cassidy study. It will enable their expert to critique the 2008 study and counsel to cross examine Dr. Cassidy at trial, so that the court can properly weigh and evaluate his opinion. But the plaintiffs are not entitled to third party discovery without bringing a proper motion on notice to the third party. Rule 30.l0 (1) of the Rules of Civil Procedure sets out the procedure and criteria on such a motion.

[ 15 ] In the interests of moving the case along given that the trial is scheduled to commence on April 28, 2012, I will require the defendants to ask Dr. Cassidy to use his best efforts to obtain the raw foundational data from the 2008 Cassidy study for production to both parties, without prejudice to the ability of the plaintiffs to bring the appropriate third party motion.

[ 16 ] Dr. King made a video and audio recording of the defense medical he conducted of the plaintiff patient. The defendants have advised based on information from Dr. King that the partial audio recording he made has been transcribed and deleted. The transcription is included in his report. Dr. King also advised that he would produce the video made at the very end of the session and the defendants have handed it over to the plaintiffs’ counsel.

[ 17 ] The plaintiffs asked for affidavit verification of these facts from Dr. King including verification that the video produced to them is in fact the only one that he has. This is requested because the video was described as being 20 seconds or so in length whereas the video produced is said to be closer to 7 seconds.

[ 18 ] Dr. King’s report attaches his C.V. The plaintiffs ask that the defendants be required to produce copies of 45 items listed in Dr. King’s C.V. being a combination of his publications, presentations and meetings he has attended over a period of more than 20 years on topics said to be related to the issues raised by this case. They also ask to be provided with a copy of three studies Dr. King referred to in his report upon which he relied. Dr. King has advised the defendants that he does not have hard copies of these studies but they are readily available on line for a set fee, no different from the fee he would have to pay.

[ 19 ] Dr. King is not required to provide affidavit evidence as part of the discovery process between the litigants in this case. The plaintiffs provided no evidence that they had tried to obtain the three studies on line but were unable to do so. Seeking production of items listed on an expert’s C.V. is very unusual. The plaintiffs only say that these items are likely unobtainable from other sources and include papers and presentations prepared or received by Dr. King. The law they present does not support the conclusion that the items requested from his C.V. are “findings” within the meaning of rule 31.06(3) .

[ 20 ] The request for an order to produce Dr. King’s hard drive is dismissed. This is an exceptional order not supported by the record before me. Dr. King was not served and there is no evidence of intentional non disclosure.

[ 21 ] The motion with respect to Dr. King’s report is dismissed with two exceptions. He has offered through defendants’ counsel to provide copies of requested materials listed in his C.V. that are easily accessible to him, and given his consent I will make this order. The defendants are also required to ask Dr. King to confirm that the only video in existence is the one already delivered to counsel.

[ 22 ] Costs of the motion are awarded to the defendants. They did not oppose the request for leave to bring the motion. They advised the plaintiffs in advance how to obtain the studies referred to in Dr. King’s report on line and forwarded the video and the materials listed in his C.V. that were easily accessible to him before the motion was argued. The defendants gave notice to the plaintiffs early on that they were not in possession, power or control of the documents being sought from the 2008 Cassidy study and that a third party motion should be brought. Dr. Cassidy has already brought their request to his employers’ attention and the practical effect of the order I have made will be for him to actively follow up that request. The plaintiffs have had very minor success only and have not achieved any of the substantive relief they had requested. Taking all of this into account the costs to the defendants are fixed at $5,000 inclusive, representing approximately 65 percent of their partial indemnity bill of costs.

Mackinnon J.

Date: February 2, 2012

ONTARIO SUPERIOR COURT OF JUSTICE RE: LINE LAMARRE, MARIO LEPAGE, and JONATHAN LEPAGE and MAXIME LEPAGE by their Litigation Guardian, LINE LAMARRE, Plaintiffs AND SHELDON CAMPBELL, and CAMPBELL CHIROPRACTIC HEALTH CENTRE, Defendants BEFORE: Mackinnon J. COUNSEL: Amani Oakley, Counsel for the Plaintiffs Stephen S. Appotive, Counsel for the Defendants ENDORSEMENT Mackinnon J.

Released: February 2, 2012