ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: Crim J. (P.)1604/11
DATE: 20131204
B E T W E E N:
HER MAJESTY THE QUEEN
P. Scrutton & R. Flumerfelt, for the Crown
- and -
WILL VANDER WIER
H. Black, for Will Vander Wier
HEARD: November 4, 5, 6, 2013
RULING ON PROPOSED EXPERT EVIDENCE
Re: Dr. Wood
COATS J.:
[1] The defence seeks to qualify Dr. Wood as an expert in forensic odontology on the diagnosis, causation and assessment of oral maxillofacial trauma and injuries. Dr. Wood prepared a report which is exhibit 3 on the voir dire.
[2] After hearing evidence on Dr. Wood’s clinical experience, research and knowledge of the literature, I am qualifying him as an expert in maxillofacial fractures and allowing him to provide opinion evidence on the diagnosis of mandible injuries and the mechanism and pattern of injuries. With regards to the mechanism of injuries, I am permitting Dr. Wood to provide opinion evidence on:
what he examines when he treats fractures and whether he looks for the presence of other fractures;
the relative strength of the jaw;
common injuries he expects to see when treating patients; and
the cases or research within his knowledge or experience involving patients who experienced jaw fractures from falls.
[3] After careful consideration, I concluded Dr. Wood is not properly qualified to provide opinion evidence on causation or direction of force or magnitude of force in relation to jaw fractures for the following reasons.
Phase 1- Preconditions of Abbey
[4] I have summarized the law with respect to expert evidence in my previous ruling of Dr. Allen. Mohan sets out four criteria to determine the admissibility of expert evidence. It is the last criterion, a properly qualified expert, which is at issue in this ruling.
Is Dr. Wood a Properly Qualified Expert?
a. Dr. Wood’s Educational Background
[5] Dr. Wood has a Doctor of Dental Surgery, Master of Science and a Diploma in Oral Radiology. He has a specialist certification in oral and maxillofacial radiology. He has obtained a Ph.D. in Odontology among other things. Dr. Wood’s CV is exhibit 1. He has no specific education on causation or direction or magnitude of force in relation to jaw fractures.
b. Dr. Wood’s Professional Experience
[6] Dr. Wood is currently a geographic full-time, active staff and department chief at the Department of Dental Oncology, Ocular and Maxillofacial prosthetics at Princess Margaret Hospital. He is a courtesy staff at the Department of Surgery of Joseph Brant Memorial Hospital. The majority of his clinical work is with patients with cancer.
[7] Dr. Wood is the Chief of Forensic Dentistry at the Office of the Chief Coroner for Ontario and Ontario Forensic Pathology Service. He is also the Coroner’s advisor regarding odontology, Project Resolve, for the Ontario Provincial Police Force/Chief Coroner’s Office efforts to identify unidentified human remains and locate missing persons. Dr. Wood is also the Chief Examiner of the Oral and Maxillofacial Radiology Specialty of the Royal College of Dentists of Canada.
[8] A vast majority of Dr. Wood’s work in forensic odontology involves identifying unidentified bodies, bite marks and wound weapon etiology.
[9] In cross-examination, Dr. Wood testified the largest volume of cases he has seen of jaw fractures was in Cape Town in South Africa, which was about 25 years ago. He testified he continues to see fractures in cancer patients and occasionally those caused by intubation and rarely in those caused by trauma.
[10] Although Dr. Wood has intensive experience working with jaws – trying to avoid jaw fractures in dental work on cancer patients, removing jaws from dead people for identification purposes, prying jaws open for identification purposes, etc., none of this vast array of interesting work involved causation or magnitude or direction of force. Specifically, his very distinguished forensic work has not been in these areas.
c. Dr. Wood’s Research, Teaching or Other Academic Experience
[11] Dr. Wood is an associate professor and associate member of Graduate Faculty, Faculty of Dentistry of University of Toronto. Dr. Wood is the chair of the research committee of the American Board of Forensic Odontologists. He is currently a supervisor of an MSc student in Oral Oncology – Periodontics.
[12] Dr. Wood has supervised several students at University of Toronto. He was also a lecturer at the University of Toronto on a number of topics including oral radiology, radiation biology and diagnostic radiologic interpretation.
[13] Dr. Wood has also published a number of articles. In particular, he published papers on maxillofacial and head injuries.
[14] However, Dr. Wood has never written a paper on the issue of determining direction or magnitude of force or causation in relation to jaw fractures.
d. Dr. Wood’s Previous Experience As An Expert Witness
[15] Dr. Wood has been qualified on numerous occasions to give expert evidence, namely, as a bite mark expert, pattern injury (skull fracture) expert, wound/weapon etiology expert, wound/weapon comparison expert and an expert on child abuse bite mark injuries.
[16] Dr. Wood has never been qualified as an expert on causation, direction of force or magnitude of force in relation to fractures. His work with the Special Investigations Unit and with his governing college has not been specific to these enquiries in the context of this case.
e. Dr. Wood’s Knowledge of the Literature
[17] Dr. Wood is well-informed on the current literature on jaw fractures generally.
[18] In cross-examination, Dr. Wood was asked whether there is a paper that links diagnosis with directional causation, and he answered “no there isn’t”. He also conceded that the literature “doesn’t talk about the direction of force… they did not measure the direction, magnitude, or contact area of force that I can see.” Further, in cross-examination Dr. Wood was asked:
Q. And for you to draw any conclusions about direction of force based on those articles would therefore be, to say the least, unscientific.
A. Well, if I did - did it alone, if I drew my conclusions just alone on the articles and not with the clinical experience I had with multiple fractures, but I believe I talked about the evidence guided approach to diagnosis, which includes literature, personal experience, et cetera. So, if I just relied on the literature then that would - that would be - there would be issues with direction of force.
[19] Dr. Wood testified that there is no research on causation of jaw fractures due to ethical reasons.
Phase 2- Gatekeeper Stage of Abbey
[20] At the second stage of Abbey there is a cost-benefit assessment of the evidence: see R. v. Abbey (2009), 97 O.R. (3d) at paras. 87, 88. It is well-established that the closer an expert opinion gets to the ultimate issue, the more scrutiny is required at the gate-keeping stage: see J.J., 2000 SCC 51, [2000] 2 S.C.R. 600 at para. 28.
[21] Even if Dr. Wood was found to be a properly qualified expert, I find that the cost of allowing Dr. Wood to opine on causation and direction of force of Mr. Tran’s injuries outweighs any benefit. This evidence approaches the ultimate issue of this case of whether a punch or fall caused Mr. Tran’s injuries. Based on Dr. Wood’s education and experience it is clear that Dr. Wood does not have the specialized or peculiar knowledge or expertise on causation and direction or magnitude of force with regard to jaw fractures. There is also risk that the jury may abdicate its fact-finding role when presented with Dr. Wood’s impressive credentials.
Conclusion
[22] Based on the foregoing, I am qualifying Dr. Wood as an expert in maxillofacial fractures. Dr. Wood can provide opinion evidence on the diagnosis of mandible injuries and the mechanism and pattern of injuries.
Coats J.
Released: December 4, 2013