COURT FILE NO.: 3846/11 DATE: 20190325
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
KELSEY WOODS, a person under disability by her litigation guardian MICHAEL WOODS, KARLI WOODS, BERNICE BOOTH, AND MICHAEL WOODS, personally Plaintiffs
– and –
DR. ALLAN JACKIEWICZ and DR. RONIT MESTERMAN Defendants
Counsel: Paul Cahill and Samantha Shatz, for the Plaintiffs Mark Veneziano, Dena Varah and Robert Trenker, for the Defendant, Dr. Allan Jackiewicz
HEARD: March 25, 2019
REASONS FOR DECISION ON MOTION
Conlan J.
I. Introduction
[1] The Plaintiffs, Kelsey Woods by her litigation guardian Michael Woods, Karli Woods, Bernice Booth, and Michael Woods, have sued the Defendant, Dr. Allan Jackiewicz, for negligence.
[2] Damages have been agreed upon. Liability is contested. A jury was selected today in Kitchener and is returning tomorrow to hear the case for the Plaintiffs.
[3] In summary, Ms. Booth became pregnant with twins in late 1990. She was under the care of the Defendant, an obstetrician and gynaecologist.
[4] In July 1991, Ms. Booth delivered the babies prematurely. It is alleged that the twins suffered from twin-to-twin transfusion syndrome and, because there was delay in detecting and treating that, Kelsey was born with catastrophic cerebral palsy and Karli with significant hearing loss.
[5] The Plaintiffs have four experts. Dr. Dan Farine, former Head of Obstetrics at Mount Sinai Hospital, is of the opinion that Dr. Jackiewicz fell below the standard of care in multiple ways and, further, had he not been negligent the outcome for the twins would have been significantly improved. Dr. Jon Barrett, former Chief of Obstetrics at York Central Hospital, is of the opinion that Dr. Jackiewicz showed a general ignorance as to the complications of twin pregnancies and, further, that ignorance adversely affected the outcome for the twin babies. Dr. Catherine Cowal, clinical practitioner in obstetrics and gynaecology, opines that Dr. Jackiewicz fell below the standard of care for several reasons and, further, at least in part, that negligence negatively impacted the outcome for the babies. The opinions of the fourth expert, Dr. Cecil Hahn, are not necessary to review here because it seems that he will likely be called to testify regardless of the decision that this Court has been called on to make.
[6] The Defendant has three experts. Of course, the Defendant is likely to testify himself, though not as an expert witness.
II. The Motion
[7] The Plaintiffs move for leave to call four expert witnesses to testify at trial, if such leave is required. The Defendant opposes the Motion.
III. The Issues
[8] In my view, there are two issues: (i) is leave required, and (ii) if so, should it be granted?
IV. Decision
[9] Although I reserve the right to deliver more fulsome reasons at a later time, I am in a position now to answer those two issues as follows.
[10] First, leave is required. I reject the notion that section 12 of the Ontario Evidence Act limits the number of expert witnesses to three per issue, and because there are two major issues in this case (standard of care and causation), the Plaintiffs may call four experts without leave provided that not more than three of them testify on any one of those two issues. I agree with Farley J. in Bank of America Canada v. Mutual Trust Co., 1998 CarswellOnt 1549 (Ont. Gen. Div.) and Ferguson J. in Burgess (Litigation Guardian of) v. Wu, 2005 CarswellOnt 927 (S.C.J.). Plain statutory interpretation and the rationale underlying section 12 of the Ontario Evidence Act dictate that leave is required to call more than three expert witnesses on all issues combined.
[11] Second, leave should be denied in this case. The Plaintiffs are restricted to calling three experts at trial, in total. I say nothing about who those three experts must or should be, and I decline the invitation by the Defendant to restrict what each of those three expert witnesses can testify about.
[12] In summary, I am of the view that the factors discussed in the case law, including at paragraph 35 of Justice Ferguson’s decision in Burgess, supra, weigh against the granting of leave on our facts.
[13] First, the Defendant objects to leave being granted. Second, there are two core expert subjects here, standard of care and causation, and three experts to address those two areas is more than sufficient. Third, acknowledging that the Defendant himself will likely testify at trial, that is not the same as expert opinion, and limiting the Plaintiffs to three experts will present a level playing field as the Defendant is calling three experts at trial. Fourth, in my experience and to my knowledge it is not customary for one side of a medical malpractice case to call more than three expert witnesses on liability alone. Fifth, there is potential prejudice to the Defendant, albeit minimal and not a significant part of my decision herein, if the Plaintiffs are entitled to call more experts than the Defendant, even with a limiting instruction to the jury. Sixth, I respectfully disagree with the Plaintiffs that it is necessary to call all three of Drs. Farine, Barrett and Cowal. Choosing among two of them may not be ideal for the Plaintiffs and may cause any one of the two to be vulnerable to attack on something by the other side, but that is not the test of necessity and, further, that could be said in nearly every case. Seventh, I agree with the Defendant that there is substantial duplication in the backgrounds, work and opinions authored by Drs. Farine, Barrett and Cowal. The eighth factor, that being whether the time and cost involved in calling the additional expert witness is disproportionate to the amount at stake, I agree with the Plaintiffs that the said factor is not a reason to deny leave in this case.
[14] Hence, nearly every factor points away from the granting of leave.
[15] Stepping back and looking at the test for the admissibility of expert evidence generally, I am not satisfied that calling all three of Drs. Farine, Barrett and Cowal is appropriate. Logical relevance is not a concern here. Neither is the issue of whether all three doctors are properly qualified. Rather, the request is defeated on the grounds of legal relevance, necessity and the absence of an exclusionary rule where the test for leave to avoid that rule is not met.
[16] In conclusion, section 12 of the legislation states that “[w]here it is intended by a person to examine as witnesses persons entitled, according to the law or practice, to give opinion evidence, not more than three of such witnesses may be called upon either side without the leave of the judge or other person presiding”.
[17] This is indeed a serious medical negligence case. Mr. Cahill is correct in that regard. He is also correct that liability is hotly contested. But the presumption is there for good reason, and the onus is on the party seeking to rebut the presumption (here the Plaintiffs) to demonstrate on balance that leave is appropriate. That onus has not been met here. I have read the reports of all of the experts on both sides. I see no “gaps” in the evidence, to borrow Mr. Cahill’s expression, thereby unfairly prejudicing the Plaintiffs, if Dr. Hahn and any two of Drs. Farine, Barrett and Cowal testify at trial.
[18] The Plaintiffs’ Motion is therefore dismissed. I thank counsel on both sides for their helpful written materials and oral submissions on the Motion.