COURT FILE NO.: CV-12-0140
DATE: 2018-05-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JO-ANNE HAMELIN
C. Hacio, for the Plaintiff
Plaintiff
- and -
CHRISTIAN MIKKELSEN AND COMMERCIAL ELECTRIC OF THUNDER BAY INC.
G. Bodnaryk, for the Defendants
Defendants
HEARD: May 7, 8 and 9, 2018,
at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Reasons On Voir Dire – Admissibility of Expert Evidence
Overview
[1] These are my reasons for my ruling delivered by endorsement on May 9, 2018.
[2] In this action, the plaintiff, Ms. Hamelin, claims damages for injuries allegedly sustained in an accident which occurred on April 28, 2010.
[3] This is a jury trial. During trial management discussions prior to trial, it was decided that a voir dire was necessary to determine the permissible scope of some expert testimony.
[4] Ms. Hamelin was in a previous car accident in 2003 and a subsequent car accident on July 27, 2010. She alleges various injuries including soft tissue injuries to her neck and shoulder, some depression, and difficulty swallowing.
[5] She has been diagnosed with achalasia which is defined in the report of Dr. Maharaj, a surgeon retained by the defendants to provide a medical legal report, as follows:
Achalasia is a failure of smooth muscle fibers to relax, which cause a sphincter to remain closed and failed to open when needed, lack of progressive peristalsis (coordinated squeezing of the esophagus) and partial/incomplete relaxation of lower esophageal sphincter, preventing passage of food into stomach.
Its (the esophagus) smooth muscle is innervated by involuntary nerves (sympathetic nerves via the sympathetic truck and parasympathetic nerves via the vagus nerve) and in addition volunteering errors (lower motor neurons) which are carried in the vagus nerve to innervate its striated muscle.
[6] The plaintiff intends to call two chiropractors, Dr. Smith and Dr. Schroeder, and an orthopedic surgeon, Dr. McCormick, to give expert evidence concerning the causes of achalasia and whether this condition was caused or exacerbated by the injuries sustained in the April 20, 2010 accident. Dr. Schroeder and Dr. McCormick also provided “threshold” opinions on whether the plaintiff sustained a permanent and serious impairment of an important physical, mental, or psychological function for the purposes of s. 267.5 of the Insurance Act.
[7] Counsel for the defendant objects to the chiropractors and Dr. McCormick giving expert evidence about swallowing disorders and possible causes and argues that neither Dr. Schroeder nor Dr. McCormick are qualified to give the necessary opinion on impairment.
The Legislative Framework
[8] The scope of practice for chiropractors is set out in the Chiropractic Act, 1991, S.O. 1991, c. 21, at s.3.
Scope of practice
3 The practice of chiropractic is the assessment of conditions related to the spine, nervous system and joints and the diagnosis, prevention and treatment, primarily by adjustment, of,
(a) dysfunctions or disorders arising from the structures or functions of the spine and the effects of those dysfunctions or disorders on the nervous system; and
(b) dysfunctions or disorders arising from the structures or functions of the joints
[9] Subsections 267.5(3) and (5) of the Insurance Act provide that a person may only recover damages in a car accident claim for health care expenses or non-pecuniary loss if that person has, in this case, sustained a permanent serious impairment of an important physical, mental or psychological function (the “threshold”).
[10] Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O. Reg. 461/96 sets out the evidence required for the threshold determination.
Evidence Adduced to Prove Permanent Serious Impairment of an Important Physical, Mental or Psychological Function
4.3 (1) A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person’s claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act. O. Reg. 381/03, s. 1.
(2) The person shall adduce evidence of one or more physicians, in accordance with this section, that explains,
(a) the nature of the impairment;
(b) the permanence of the impairment;
(c) the specific function that is impaired; and
(d) the importance of the specific function to the person. O. Reg. 381/03, s. 1.
(3) The evidence of the physician,
(a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and
(b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine. O. Reg. 381/03, s. 1.
(4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile. [Emphasis added].
Dr. Allen Smith
[11] Dr. Smith is a chiropractor who graduated from Chiropractic College in 1980. He has practiced continuously since then. His special interest is in the upper cervical spine – C1/C2, and myofascial pain and trigger points.
[12] He first saw Ms. Hamelin in July 13, 2017 and has treated her 13 times. He prepared two reports for plaintiff’s counsel dated August 7, 2017 and April 23, 2018. He has treated two other patients before for similar swallowing difficulties. One of those patients was Ms. Hamelin’s sister who suggested that Ms. Hamelin should see Dr. Smith.
[13] By the time Ms. Hamelin saw Dr. Smith she had already been diagnosed with achalasia. She had been seen by gastroenterologists and throat specialists, who, Dr. Smith was told, provided little assistance. Based on his experience he thought that the swallowing problem might be related to muscles near the esophagus and nerves enervating the esophagus. He began treatment which included manipulation, cold laser therapy, and trigger point therapy particularly to the longus colli muscles situated on the dorsal side of the esophagus. According to Dr. Smith, these treatments improved some of Ms. Hamelin’s swallowing difficulties. In his opinion, her problems were consistent with a “significant flexion/extension and acceleration/deceleration injury to the survival/thoracic spine.” It was his opinion that these problems were “very likely the result of her motor vehicle accidents.”
[14] It is clear that Dr. Smith has not reviewed all the medical records including the records relating to the other car accidents.
Positions of the Parties
[15] During submissions, counsel agreed that Dr. Smith could give opinion evidence as set out in my ruling below.
Dr. Smith – Ruling
[16] Dr. Smith is qualified to give expert opinion evidence on the general anatomy of the spine and muscles and tissues surrounding the esophagus. That is necessary to explain the treatment that he has given Ms. Hamelin. Dr. Smith is qualified to explain the treatment given and the results of that treatment.
[17] Dr. Smith is not qualified to diagnose achalasia. He is qualified to give an opinion that findings “would be consistent with a significant flexion/extension and acceleration/deceleration injury to the cervical/thoracic spine.” Because he has not reviewed information related to the other accidents he cannot express the opinion that Ms. Hamelin’s swallowing difficulties are related to the April 2010 motor vehicle accident.
Dr. Brian Schroeder
[18] Dr. Schroeder is a chiropractor. Briefly stated, it was his opinion that the plaintiff has musculoskeletal problems, swallowing problems and cognitive impairment as a result of her car accident. Counsel for the plaintiff confirmed that, even though Dr. Schroeder expressed a “threshold” opinion in his report, he was not tendering Dr. Schroeder as an expert for the “threshold” question as it was acknowledged that Dr. Schroeder was not a “physician” as required by the regulation.
[19] Dr. Schroeder graduated from Chiropractic College in 1988 and has assessed and treated patients with “whiplash” injuries throughout his career.
[20] He acknowledged that he has never treated anyone with achalasia before and that he has never diagnosed anyone with a swallowing disorder as a result of a motor vehicle accident except in one case when an accident caused a hernia. He was also retained to provide rebuttal reports to the reports of the physiatrist and gastroenterologist retained by the defendants.
[21] Although he saw the plaintiff for an independent assessment he did acknowledge that he treated the plaintiff approximately 200 times starting in about 2000 through to March 2006 and on four or five occasions in April 2012.
[22] During cross-examination he admitted that, after his examination of the plaintiff and the review of her records, he concluded that her swallowing problems were related to the car accident and then went to find internet articles to support his opinion with respect to causation. He admitted that he found other articles that did not support his opinion but did not include those articles.
[23] A portion of that cross-examination is set out below:
MR. BODNARYK: Q. Okay. That’s fine. Now, as part of your report of September 22, 2016, obviously it goes without saying, a significant portion of that deals with internet research. Is that fair?
A. Yes.
Q. And I believe, I believe if I heard you correctly, and I want you to help me if I’ve misstated this thing. You saw the Plaintiff, you came to an opinion, and then you set out to find online articles that support your opinion?
A. I set out to find online articles that would support my opinion in terms of causation.
Q. So, you came to the opinion on your own that there was a causal link between the car accident and her achalasia. And then you set out to conduct internet research to support your opinion?
A. Yes.
Q. Alright.
A. I suppose it goes without saying, it’s certainly no surprise to you since you’ve responded to some of the reports, there’s also a body of internet articles out there that don’t support that conclusion?
A. Yes.
Q. And those are not included in your report?
A. No.
Q. You’ve included one side of the argument but no attempt to balance. Is that fair?
A. Yes.
[24] He also admitted that he did not do cognitive testing in determining that the plaintiff had cognitive impairment.
Positions of the Parties
[25] Counsel for the plaintiff argues that Dr. Schroeder, as a chiropractor, is entitled to give opinions in accordance with his scope of practice which would include whiplash disorders. Counsel for the plaintiff also argues that, with his special expertise as a chiropractor, Dr. Schroeder is qualified to conduct research into the causes of swallowing disorders and to provide opinions based on that research.
[26] Counsel for the defendants argues that Dr. Schroeder is not qualified to give opinions on the diagnosis and causes of swallowing disorders and cognitive impairment and further, that as a prior treating chiropractor, Dr. Schroeder is not unbiased. Counsel for the defendants argues that Dr. Schroeder’s methodology and willingness to opine in areas clearly outside his scope of practice establishes that he is not an impartial witness but an advocate. Counsel for the defendants relies upon recent cases including White Burgess Langille Inman v. Abbott & Haliburton, 2015 SCC 23 and Bruff-Murphy v. Gunawardena, 2017 ONCA 502. As such, counsel for the defendants submits that Dr. Schroeder should not be qualified as an expert witness even on matters within his scope of practice.
Dr. Schroeder – Ruling
[27] In R. v. Natsis, 2018 ONCA 425, a decision released on May 7, 2018, Justice Pardu stated this about the principles from White Burgess:
[11] I extract the following principles concerning the admissibility of expert evidence from White Burgess, at paras. 46-54:
(a) Expert witnesses have a duty to assist the court that overrides their obligation to the party calling them. If the witness is unable or unwilling to fulfill that duty, their evidence should be excluded.
(b) An expert’s attestation or testimony recognizing and accepting their duty to the court will generally suffice to meet the threshold for admissibility as it relates to bias.
(c) The burden rests on the party opposing the admission of the evidence to show that there is a realistic concern that the expert’s evidence should not be received because the expert is unable or unwilling to comply with their duty to the court.
(d) If the opposing party establishes that there is a realistic concern, then the party proposing to call the evidence must establish that the expert is able and willing to comply with their duty to the court on a balance of probabilities. If this is not done the evidence, or those parts of it that are tainted by a lack of independence or impartiality should be excluded.
(e) Even if the evidence satisfies the threshold admissibility inquiry, any concern about the expert’s impartiality and independence is still a relevant factor in weighing the R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 factors for admissibility – such as relevance, necessity, reliability, and absence of bias. Bias remains a factor to be considered in determining whether the potential helpfulness of the evidence is outweighed by the risk of the dangers associated with that expert evidence.
(f) Expert evidence will rarely be excluded for bias; anything less than clear unwillingness or inability to provide the court with fair, objective, and non-partisan evidence should not result in exclusion. Rather, bias must be taken into account in the overall weighing of the costs and benefits of receiving the evidence. Context is important. Both the extent of the expert’s alleged bias and the nature of the proposed evidence are relevant.
[28] In this case, I am satisfied that the defendants have demonstrated that there is a realistic concern that the expert’s evidence should not be received because the expert is “unable or unwilling” to comply with their duty to the court. I find that the plaintiff has not established that Dr. Schroeder is able and willing to comply with his duty to this court on a balance of probabilities. I base that on the unwillingness of Dr. Schroeder to include any research that did not support his causation opinion and Dr. Schroeder’s unwillingness to acknowledge the expertise of the defendants’ gastroenterologist and physiatrist and his (what I interpret as) partisan rebuttal to the defendants’ experts’ reports. For example, in his first report he stated: “I have diagnosed Ms. Hamelin as having… achalasia (difficulty swallowing, choking) specifically from the incident of April 28, 2010.” When the defence physiatrist, who did not feel qualified to diagnose achalasia, criticized Dr. Schroeder for making a diagnosis beyond his expertise, Dr. Schroeder responded in his second report: “I did not render the diagnosis of achalasia for Ms. Hamlin.” In cross-examination he attributed this obvious inconsistency to poor word choice. Added to this is Dr. Schroeder’s willingness to give an opinion about cognitive impairment when there was no evidence of his training and experience in the assessment of cognitive impairment.
[29] I am mindful that Dr. Schroeder treated the plaintiff approximately 200 times in the past. In certain circumstances, prior involvement as a treatment provider may not preclude that treatment provider from becoming an independent assessor. This extensive, although distant, prior involvement is a concern here. In this case, however, it is the methodology of Dr. Schroeder and his (what I conclude to be) partisan approach which raise the concern that he is not impartial.
[30] Although I agree that any concern about the expert’s impartiality is a relevant factor in the assessment of the weight to be given to that evidence, I am mindful that this is a jury trial. Taking into consideration the overall cost and benefit of receiving this evidence, I conclude that it would not be beneficial to leave the issue of bias to the jury in addition to all the other matters that they will have to determine. In this trial, the plaintiff will be calling expert opinion evidence from a psychiatrist as to the plaintiff’s cognitive impairment. I have permitted another chiropractor, Dr. Smith, to give some opinion evidence with respect to the possible cause of the plaintiff’s swallowing problems and I have permitted Dr. McCormick to give some opinion evidence with respect to the possible cause of the plaintiff’s swallowing problems. Weighing all these factors I conclude that it is appropriate, in exercising my “gatekeeper” role, to not allow Dr. Schroeder to give the expert opinions he expressed in his reports.
[31] Dr. Schroeder is not permitted to give any opinion evidence as set out in his reports dated September 22, 2016, November 19, 2016 and December 23, 2017.
Dr. Myra McCormick
[32] Dr. McCormick is an orthopedic surgeon who examined the plaintiff for a medical legal assessment on January 4, 2018. Simply stated, Dr. McCormick concluded that the plaintiff sustained a WAD II (whiplash associated disorder - level two) and also injured certain muscles, particularly the digastric muscles which are located on either side of the neck, in the April 2010 accident. She noted that referred pain from these muscles may cause difficulty in swallowing. She does not claim that the accident caused the plaintiff’s achalasia but believes that, since the treatment to these muscles that Dr. Smith is providing is improving the plaintiff’s swallowing functions, then these muscle problems may aggravate her swallowing difficulties.
[33] Dr. McCormick also provided an opinion as to whether the plaintiff suffered a permanent serious impairment of an important physical, mental, or psychological function. The only impairment that Dr. McCormick found to be serious was the difficulty swallowing. The central issue to the “threshold” evidence is whether Dr. McCormick is trained for and experienced in the assessment or treatment of the type of impairment that is alleged, i.e. difficulty swallowing.
[34] Dr. McCormick graduated from McGill medical school in 1962 and thereafter qualified as an orthopedic surgeon. Most of her career has been in Thunder Bay where she maintained a general orthopedic practice. The practice did not include cervical surgery as that was not part of her training. Over her career, she has treated many patients with sore necks either as a result of degenerative changes, whiplash injuries or a combination of both. Since 1991, she has conducted over 2,500 medical legal assessments, the vast majority of which (99%) have been at the request of insurance companies. Most of these assessments relate to injuries sustained in car accidents and she routinely provides opinions as to the nature and extent of the injury, required treatment, and causation to the insurers. Although she retired from active practice in June 2001 and she no longer performs surgery, she has continued to do medical legal assessments averaging about three assessments per week.
[35] Although she has not attended any training or courses with respect to “trigger points”, since approximately 1991 she has been actively involved in assessing active trigger points and determining the effect of active trigger points on the body. She candidly admitted that not all orthopedic surgeons are knowledgeable about trigger points and that some, but not all, physiatrists are knowledgeable about trigger points. She acknowledged that physiotherapists are experts with respect to trigger points and has worked extensively with physiotherapists and learned about trigger points particularly in her work on assessing workers’ compensation cases.
[36] She admits that she is not qualified to diagnose achalasia.
[37] She confirmed that she has no training or experience in the assessment of swallowing function.
Positions of the Parties
[38] Counsel for the plaintiff submits that Dr. McCormick, as an orthopedic surgeon, is qualified to give expert opinion evidence about the musculoskeletal system including trigger points. He is not offering her as an expert on the causes of achalasia but rather on the effect that other muscles may have on the functioning of the esophagus. He notes that, while she does not have training in trigger points, she has been involved with diagnosing trigger points and the effect of trigger points since 1991. He argues that the case law supports the statement that expertise can be based on experience.
[39] Counsel for the defendants argues that Dr. McCormick should not be qualified as an expert as she has not had an active surgical practice since 2001, and has not taught, presented papers, or conducted research beyond her training. He notes that most of her recent courses relate to the lower extremities. Further, he argues that she has not been trained or educated in trigger points.
Dr. McCormick – Ruling
[40] I agree with counsel for the plaintiff that Dr. McCormick, as an orthopedic surgeon, is entitled to provide opinions relating to the musculoskeletal system. Although she not does not have specific training with respect to trigger points, I am satisfied that she has extensive experience in the diagnosis of trigger points and the effect that active trigger points have on the body. Notwithstanding the fact that she is not acting as a treating orthopedic surgeon, Dr. McCormick has an active assessment practice and, as such, continues to diagnose and make treatment recommendations as an independent assessor, primarily for insurers. I conclude that, therefore, Dr. McCormick is qualified as set out below.
[41] Dr. McCormick is qualified to give expert opinion evidence on the general anatomy of the spine and muscles and tissues surrounding the esophagus including “trigger points” and the possible exacerbation of the plaintiff’s swallowing difficulties because of active trigger points.
[42] However, as she is not a physician who is trained for and experienced in the assessment or treatment of swallowing disorders, I conclude that Dr. McCormick is not qualified to express an opinion on the swallowing impairment for the “threshold” determination as required by s. 4.3(3) of Ontario Regulation 461/96.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: May 11, 2018
COURT FILE NO.: CV-12-0140
DATE: 2018-05-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JO-ANNE HAMELIN
Plaintiff
- and -
CHRISTIAN MIKKELSEN AND COMMERCIAL ELECTRIC OF THUNDER BAY INC.
Defendants
B E T W E E N:
REASONS ON VOIR DIRE – ADMISSIBILITY OF EXPERT EVIDENCE
Newton J.
Released: May 11, 2018
/sab