COURT FILE NO.: 3846/11 DATE: 2019 04 02 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 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
BEFORE: Conlan J.
COUNSEL: Paul Cahill and Samantha Shatz, Counsel for the Plaintiffs Mark Veneziano, Dena Varah and Robert Trenker, Counsel for the Defendant, Dr. Allan Jackiewicz
Endorsement on the Issue of Demonstrative Aids
I. Introduction
The Action
[1] The Plaintiffs, Kelsey Woods by her litigation guardian Michael Woods, Karli Woods, Bernice Booth, and Michael Woods personally, have sued the Defendant, Dr. Allan Jackiewicz, for negligence.
[2] Damages have been agreed upon. Liability is contested. A jury trial is underway in Kitchener.
[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.
The Issue
[5] The Plaintiffs have three experts. One of them is Dr. Cecil Hahn, staff physician in the division of neurology at SickKids Hospital, senior associate scientist at the SickKids Research Institute, and associate professor of paediatrics at the University of Toronto.
[6] Dr. Hahn is being called to testify on the issue of causation. He was scheduled to testify the morning after this issue was addressed by counsel. Thus, a timely ruling was required.
[7] There are two illustrations and two charts that counsel for the Plaintiffs want to enter as exhibits through Dr. Hahn. The illustrations are meant to depict concepts of brain pathology findings and concepts of brain injury evolution as they pertain to Kelsey. The charts are based on two studies referred to in the reports of Dr. Hahn and Dr. Scheller (the competing expert being called by the Defendant) and are designed to show the relationships between (i) gestational age and morbidity and (ii) gestational age and neurodevelopmental outcome.
[8] The Defendant opposes the use of all of these illustrations and charts as being inaccurate, incomplete, unnecessary, and/or prejudicial.
II. Analysis and Conclusion
The Ruling
[9] As indicated orally at Court on April 1, 2019, with one exception, the illustrations and the charts are admissible.
[10] The exception relates to the second chart at page 9 of the Statement of Law filed by counsel for the Plaintiffs – titled “Neurodevelopmental Outcome by Week of Gestational Age”. The reference to the Shah study, inside the box, shall be excised. As the data shown in the chart relates solely to the Larroque study, the reference to Shah is unnecessary and potentially misleading.
The Legal Principles
[11] I agree with the Factum filed by counsel for the Defendant, paragraphs 3 through 9, regarding the legal principles. I simply disagree with counsel for the Defendant on the application of those principles in our case.
[12] The authorities referred to by counsel for the Defendant include (i) an excerpt from Geoffrey Adair’s book On Trial (Butterworths, 2004), second edition, section 4.04, at page 26, (ii) R. v. Kanagasivam, 2016 ONSC 2250, at paragraph 49, (iii) Jenkyns v. Kassam, 2006 CarswellOnt 8890, at paragraph 7, (iv) R. v. D.(A.), 2004 CarswellOnt 6583, at paragraphs 9 and 10, and (v) R. v. Johnson, 2017 ONSC 2084, at paragraph 18.
[13] Those authorities support the submissions on behalf of the Defendant that:
(i) demonstrative aids are not evidence in the strict sense of that word but rather tools to help the trier of fact better understand or remember a witness’ evidence;
(ii) demonstrative aids must be fair and are not intended to be a form of advocacy akin to a closing address, for example;
(iii) to be admissible, the demonstrative aid must be probative, and that value must outweigh its potential prejudicial effect;
(iv) further, the demonstrative aid, to be admissible, must be found to accurately and truly represent the facts that it purports to reflect, and it must not be misleading, and it must be authenticated by a person qualified to do so;
(v) the demonstrative aid must also be necessary in the sense that it cannot be a mere redundancy of something verbalized by the witness in the box and which is readily understandable to the trier of fact;
(vi) we must be cautious to avoid oversimplification of technical evidence through the use of a demonstrative aid; and
(vii) there is a heightened risk of misuse of a demonstrative aid where the trier of fact is a jury.
Application of the Legal Principles
[14] The proposed demonstrative aids in our case, I am satisfied, will help the jury better understand the evidence of Dr. Hahn.
[15] I do not see these proposed demonstrative aids as being a form of advocacy. They are very dissimilar to what was being tendered in the Kanagasivam, supra decision relied upon by the Defendant. There is nothing contentious among the experts about the relationship between gestational age and outcome for a baby. Generally speaking, the longer that the baby remains in the womb, approaching full term, the better the chance for a favourable outcome at the time of delivery. There is also nothing contentious about the nature and severity of Kelsey’s brain injury. The experts do not all agree on precisely when that injury started and how it evolved, but the illustrations accurately depict Dr. Hahn’s opinions in that regard.
[16] Any prejudicial effect of these demonstrative aids is significantly outweighed by their probative value and can be dealt with by instructing the jury that it must answer the questions based on all of the evidence adduced at trial, and no opinion evidence should be given more weight than other evidence simply because there exists an aid of some sort, whether an illustration and/or a chart, that relates to that opinion. I intend to give that instruction to the jury, subject to any further submissions that counsel may wish to make at the appropriate time. That will alleviate the risk of misuse of these demonstrative aids by the jury.
[17] The accuracy of these demonstrative aids, and their authenticity, have been confirmed in writing by Dr. Hahn.
[18] Brain injuries and statistics related to gestational age and outcome for a baby, common sense dictates, are not simple matters. I am satisfied that these demonstrative aids are necessary to help the jury with its task.
[19] There is no risk of oversimplification of technical evidence here. This case is much different than what was presented in the Johnson, supra decision relied upon by the Defendant. There, the Court was confronted with an attempt to file the actual report of the expert witness (a pathologist who opined on the age of injuries). No report from Dr. Hahn, or even a summary of a report authored by him, is being tendered here.
The Argument Advanced on Behalf of the Defendant
[20] Let me now address two of the main points made by counsel for the Defendant in oral submissions at Court on April 1st.
[21] Counsel for the Defendant submitted that it would be preferable for Dr. Hahn to be shown an illustration of a brain, unmarked, and then be given an opportunity to mark it. The illustration would not be entered as an exhibit. The charts would be foregone completely, with reliance placed on the two studies themselves.
[22] With respect, there are problems with that approach. Regarding the illustrations, first, it runs afoul of one of my objectives as the trial judge, namely, to move the hearing along efficiently. There is no point having Dr. Hahn mark the brain illustration exactly as the one intended to be used, as he will no doubt do. Second, the exercise will do little to help the jury understand and remember the witness’ opinions, which is the whole point of the demonstrative aids.
[23] With regard to the charts, common sense suggests that two charts are more helpful to the jury in understanding and synthesizing Dr. Hahn’s opinions than a slew of statistics embedded in the papers themselves.
[24] Further, counsel for the Defendant submitted that these demonstrative aids are not neutral and are, therefore, inadmissible.
[25] Again, there is a problem with that argument. It ignores that both sides have already filed, on consent, many authoritative papers that are not neutral at all and which the experts who have testified thus far have been perfectly capable of critiquing. In fact, the studies are worse because the authors are not testifying at trial. Dr. Hahn is. And the experts for the Defendant, including Dr. Scheller, are more than capable of explaining why the demonstrative aids are wrong, if that is the case.
[26] The real issue here is simple, I suspect. The Defendant does not want these demonstrative aids to be used because they may give an edge to Dr. Hahn over that of Dr. Scheller. I am not sure that I agree with that, however, if true, that is no reason to exclude them. Judges are gatekeepers, not equalizers.
Conclusion
[27] In summary, the legal principles espoused on behalf of the Defendant, with which I am in agreement, when applied to these proposed demonstrative aids, results in a finding that the Plaintiffs have established on balance the admissibility of the subject illustrations and charts. Hence, the ruling of the Court.