CITATION: Lane v. Kock, 2015 ONSC 28

COURT FILE NO. 116/08

DATE: 20150104

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Zachariah Lane and Alexis Koch, plaintiffs

- and -

Luke Kock and Mary-Ellen Frances Kock, defendants

BEFORE: Bale J.

COUNSEL:

Robert Sugar, for the plaintiffs

Martin Forget, for the defendants

HEARD: November 26 and 27, 2014

ENDORSEMENT

Introduction

[1] The plaintiffs claim damages for burns suffered as a result of an explosion. They wish to call Dr. Walter Peters to give expert evidence. The evidence to be given by Dr. Peters would include the anatomy of the burns and expected clinical outcomes, including his opinion as to the connection, if any, between the burns and the ongoing functional limitations which the plaintiffs allege. Any ongoing functional limitations are denied by the defendants.

[2] On the fifth day of trial, a series of photographs of Zachariah Lane’s burns taken upon his admission to the Hamilton Burn Centre surfaced for the first time. While the defendants consented to these photographs being shown to the jury, they took the position that Dr. Peters should not be allowed to modify his opinion based upon the photographs. After hearing argument and considering the issue, I ruled that Dr. Peters, and the defendants’ corresponding expert, could review the photographs and deliver new reports, if so advised. The basis of the ruling was that expert witnesses must be provided with the information necessary to allow them to provide properly informed, independent and objective opinions, and that it would be improper for counsel to lead expert evidence knowing that it was not properly informed. In addition, due to the expected length of the trial, there was sufficient time for counsel for the defendants to properly prepare his cross-examination of Dr. Peters, and for the defendants’ expert to prepare a responding report.

[3] The defendants now object to Dr. Peters giving evidence at all. They accuse him of breaching his duties as an expert, and argue that he is biased and should be disqualified. They say that his reports clearly show that he is not impartial and that he has become an advocate for the plaintiffs. In support of their argument, they point to a number of aspects of his reports, including: the use of inflammatory language, the selective use of information (“cherry-picking”), misstatements of fact, oath helping, speculation, and the giving of opinions outside of his area of expertise.

[4] In addition, the defendants allege that their theory of the case, as it became apparent during the cross-examination of Zachariah Lane, was improperly communicated to Dr. Peters in order that he could somehow help to “patch up” Mr. Lane’s case.

Discussion

[5] Based upon the evidence given by Dr. Peters on the voir dire, and the submissions made by plaintiffs’ counsel, both of which I accept on this issue, I find as a fact that there were no improper communications between them.

[6] I do agree, however, that Dr. Peters’ reports demonstrate advocacy. In fact, in his evidence on the voir dire, he admitted as much. In fairness to the plaintiffs, however, before disqualifying Dr. Peters, I must consider whether the impugned contents of his reports are such as to result in a loss of confidence in the reliability of his opinions on issues within his area of expertise.

[7] The test to be applied in determining whether expert evidence should be excluded on the basis of bias or partiality is set out in Alfano v. Piersanti, 2012 ONCA 297 (at paras. 110f):

In most cases, the issue of whether an expert lacks independence or objectivity is addressed as a matter of weight to be attached to the expert’s evidence rather than as a matter of the admissibility. Typically when such an attack is mounted, the court will admit the evidence and weigh it in light of the independence concerns. Generally, admitting the evidence will not only be the path of least resistance, but also accord with common sense and efficiency.

That said, the court retains a residual discretion to exclude the evidence of a proposed expert witness when the court is satisfied that the evidence is so tainted by bias or partiality as to render it of minimal or no assistance. … If a trial judge determines that the probative value of the evidence is so diminished by the independence concerns, then he or she has discretion to exclude the evidence

[8] Accordingly, in exercising my discretion on this motion, I must come to a conclusion as to whether the probative value of the proposed evidence is so diminished by bias or impartiality as to render it of minimal or no assistance to the jury.

Use of inflammatory language

[9] A few quotations from Dr. Peters’ reports will serve to demonstrate his use of inflammatory language to advocate upon behalf of the plaintiffs.

[10] With respect to Zachariah Lane, his reports included the following:

• In summary, this man has sustained a devastating major burn, primarily to his upper limbs. He is now left with disfiguring and deforming scars. These scars are permanent and will remain for the rest of his life. They will certainly have a very negative effect on this man’s quality of life – throughout his lifetime.

• To review this man’s dreadful burn injury, he was 20 years old on June 11, 2006, when he sustained this massive burn that would ultimately alter the outcome of his entire life.

• This man experienced an incredible amount of pain during his stay at the Hamilton Burn Unit and the Sunnybrook burn centre.

• Even with the use of Fentanyl, there are numerous notes in the nursing section of his chart describing him as “crying and screaming out in pain” during and after his dressing changes.

• This has been a devastating transformational injury for Zach Lane. It has had a major effect on his life during the past 8 years. It will continue to have this effect on him permanently.

[11] With respect to Alexis Koch, his reports include the following:

• The pronounced irregularity and major pigmentation changes and irregularities of these scars gives the appearance to the onlooker that this patient has some type of serious “skin disease”!

• She will therefore be left with these dreadful, disfiguring, deforming scars on a permanent basis, throughout her lifetime.

• It is truly amazing how this single event in the life of a 15-year old girl could have such a devastating effect on her whole lifetime! [Emphasis in original.]

• In summary, this patient has sustained a devastating burn injury, and now presents with numerous, deforming, disfiguring areas of permanent burn scarring. These scars are permanent and will not improve further with the passage of further time. They will most certainly have a negative effect on her quality of life – throughout her lifetime.

• These scars will clearly be a source of embarrassment to her for the rest of her life. The scars on this patient’s hands will be a particular problem. They will continually be on display to her as a reminder of her burn trauma. They will also be continually on display to onlookers, who are regularly asking her if she has some type of “skin disease” or “deformity”. They will most certainly have a negative effect on her quality of life through her lifetime.

[12] The language in these quotations is objectionable not only because it is inflammatory in nature and used for the purpose of evoking strong feelings in the reader, but also because Dr. Peters purports to make findings of fact that are outside of his area of expertise. It is up to the members of the jury to decide, based upon their view of the scarring and the evidence given by the plaintiffs themselves, whether, for example, Mr. Lane’s injury is likely to “alter the outcome of his entire life”, or Ms Koch’s scars “will be a source of embarrassment to her for the rest of her life.”

Opinions outside area of expertise

[13] Further examples of opinions given outside of Dr. Peters’ area of expertise, include the following.

[14] With respect to Mr. Lane, his report of November 23, 2014 includes the following:

One can only imagine the problems this man would face in construction, attempting to use a hammer with 31% of his expected grip strength, and attempting to hold a nail with restricted intrinsic muscles, and all of these problems exacerbated in cold weather!

In his evidence, Dr. Peters admitted that he is a “scar guy” and that grip strength is not within his area of expertise.

[15] With respect to Ms Koch, his report of November 21, 2007, includes the following:

This patient aspired to be a model before her burn injury. She is a very attractive young lady who could have easily been considered to become a future model. However, she has now abandoned these thoughts. Because of the terrible scarring, it would be impossible for her to function as a model.

Dr. Peters is in no better position than anyone else in the courtroom to judge whether Ms Koch could have become a model; and, evidence already given at trial suggests that she had abandoned her pursuit of a modelling career, before the explosion, for financial reasons.

Speculation

[16] The following are examples of speculation from Dr. Peters’ reports.

[17] In his report of November 23, 2014, Dr. Peters attempts to explain why Mr. Lane did not return to the hospital for further treatment:

Based on my experience with treating many patients with major burns, I believe that Zach was very fearful because of all the pain that he had suffered in the burn centres in Hamilton and Sunnybrook. He was also very worried because many of his burn wounds had remained open. He did not want to go back to the burn clinic to suffer further pain.

During his evidence on the voir dire, Dr. Peters admitted that none of this had come from Mr. Lane himself. He was simply speculating as to Mr. Lane’s reasons for not seeking further treatment.

[18] The hospital records from the Sunnybrook Burn Centre suggest that Mr. Lane’s burns may have been less serious than Dr. Peters would have us believe. In commenting on these records, Dr. Peters speculates that the director of the burn centre, Dr. Joel Fish, had probably never actually seen Mr. Lane’s burns because he is “over extended and thinly spread”. Needless to say, there is no room for this sort of speculation in an expert’s report.

Selective use of information

[19] Dr. Peters took it upon himself to review and summarize all of the medical records with which he was provided. While it was quite proper for him to review the records, it was not his job to summarize them, except as might be relevant to giving his opinion. In commenting upon these reports, he highlighted portions that he thought were favourable to the plaintiffs’ cases and left out portions that he thought were otherwise. On the voir dire, he admitted that he had done this in order to impress the reader of the reports with what he considered to be the dire situation in which the plaintiffs have found themselves.

Disposition

[20] While I agree that the tenor of Dr. Peters’ reports raises a very real issue, having heard his evidence on the voir dire, I am unable to find that the substance of his opinions, on the issues upon which he is qualified to give evidence, is affected by his obvious desire to advance the plaintiffs’ cases. I don’t see him as a “hired gun” with “opinions for sale”. Rather, while he quite naturally feels sorry for, and wishes to assist, the plaintiffs, the objectionable contents of his reports are largely, if not totally, irrelevant to the opinions that he is qualified to give. His expertise is apparent and his description of the anatomy of the burns, and the expected clinical outcomes, appeared to be independent of his unnecessary, irrelevant and improper comments. I am prepared to accept that despite the acknowledgement of expert’s duty that he signed, he misunderstood the limits of his role in these proceedings.

[21] In the result, Dr. Peters will be allowed to testify. However, in doing so, he will confine his observations, analysis and opinions to matters that lie within his area of expertise. He will not make personal (as opposed to professional) comments about the plaintiffs’ conditions and circumstances. He will refrain from using inflammatory language. He will not refer to facts that do not form part of the factual basis of his opinions. He will not speculate as to why any other medical professionals reached conclusions, or formed opinions, different from his own. Where his opinion is based upon facts that are controversial, questions will be put to him as hypotheticals, in an effort to ensure that the jury does not take his evidence as proof of those facts.

[22] The importance of an expert maintaining her or his independence and objectivity is highlighted in the commentary to Principle 3 of the Principles Governing Communications with Testifying Experts (The Advocates’ Society: June 2014):

Allowing or causing the expert to lose her independence or objectivity does a disservice to the expert, the client and the court. It does the expert a disservice because the expert may be subject to criticism during cross-examination and in the court’s judgment as a result. It does the client a disservice because partisan expert evidence may well be ruled inadmissible, or given little or no weight in the court’s determination of the client’s case. It does the court a disservice by wasting the court’s time and resources, by making the decision making process more difficult than it should be, and by depriving the court of potentially useful and important evidence that could otherwise assist the court in rendering a fair and informed decision.

[23] In the present case, although I have decided to allow Dr. Peters to testify, he has been, and may continue to be, subject to criticism, and three and one-half days of trial time have been wasted.

“Bale J.”

Date: January 4, 2015