Court File and Parties

COURT FILE NO.: 3846/11 DATE: 2019 04 04 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 A PROPOSED EXPERT’S IMPARTIALITY

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 Defendant intends to call, on the issue of causation alone, Dr. William Mundle, Director of Maternal Fetal Medicine at Windsor Regional Hospital.

[6] Very succinctly put, Dr. Mundle opines that neither of the treatment methods that the Plaintiffs allege were deprived from Ms. Booth due to the negligence of Dr. Jackiewicz, amnioreduction and steroids, would likely have made any difference to the end result, Kelsey’s brain damage. That is because neither intervention, in the opinion of Dr. Mundle, would have prolonged the pregnancy and avoided premature delivery.

[7] The Plaintiffs submit that Dr. Mundle is not an impartial expert witness and, thus, ought to be precluded from testifying or, alternatively, should be open to cross-examination on issues concerning his previous relationships with Mr. Veneziano, one of the counsel acting for Dr. Jackiewicz, and Dr. Jackiewicz himself.

II. Analysis and Conclusion

The Law

[8] The leading case that governs this ruling is that of the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.

[9] Expert witnesses must be impartial, independent, and unbiased. Otherwise, their ability to fulfill their duty to the court to give fair, objective, and non-partisan opinion evidence will be compromised.

[10] The said duty goes not only to weight but also to admissibility.

Application of the Law to our Facts

[11] I accept that Mr. Veneziano was Dr. Mundle’s counsel, one of them, in a lengthy medical malpractice trial in the Superior Court of Justice in 2010 and 2011. The action was ultimately dismissed. To better understand the context of that action, I have reviewed the Reasons for Judgment of Justice Gates reported at Benard v. Mundle, 2011 ONSC 5162.

[12] In my view, that prior relationship is no reason to conclude, or even suspect, that Dr. Mundle’s duty to this court cannot be fulfilled. I acknowledge that a lengthy and/or close relationship between a proposed expert witness and the lawyer tendering him or her may, in some instances, give rise to a legitimate impression that the said expert is some kind of “hired gun” for the lawyer or is somehow indebted to the lawyer such that the duty to give fair, objective, and non-partisan opinion evidence is compromised. It must be decided on a case by case basis.

[13] On our facts, given the whole picture, including the subject matter of the trial before Justice Gates, the fact that it took place many years before Dr. Mundle’s involvement in our case, the absence of any other known connection between Dr. Mundle and Mr. Veneziano, and the fact that Dr. Mundle will be questioned at trial by co-counsel and not Mr. Veneziano, I see no reason to preclude Dr. Mundle from testifying.

[14] In addition, there shall be no questioning of Dr. Mundle about his prior solicitor-client relationship with Mr. Veneziano.

[15] Turning to the second issue, I accept that Dr. Mundle has given evidence in favour of Dr. Jackiewicz at prior unrelated judicial and quasi-judicial proceedings, including but very likely not limited to a disciplinary hearing of some sort that took place before the Board of Directors at the hospital in Niagara Falls, where Dr. Jackiewicz practised, in 2014.

[16] I am concerned that Dr. Mundle has a history of defending the competence of Dr. Jackiewicz, which history might colour his opinions in our case. In the end, however, I decline to preclude Dr. Mundle from testifying on account of that concern, and I prohibit any questioning of Dr. Mundle about the number of times that he has acted in the said capacity and/or any details of those instances.

[17] First, I am comforted in part by the fact that Dr. Mundle is being called in our case to opine only on causation, not negligence.

[18] Second, and more important, the consequence of allowing questioning of Dr. Mundle as proposed by counsel for the Plaintiffs has the potential to prejudice the jury to a degree that far exceeds the probative value of the anticipated evidence. Put bluntly, the jury will inevitably discover that Dr. Jackiewicz has a history of disciplinary issues and alleged malpractice. Once that lid is uncovered, no matter what I instruct the jury, I am convinced that the triers of fact will not be able to withstand the temptation of engaging in impermissible propensity reasoning.

[19] Having said that, there is no basis to prohibit counsel for the Plaintiffs from establishing that Dr. Mundle is not a stranger to Dr. Jackiewicz, and was not when he was retained as an expert in this case.

[20] Thus, if counsel chooses to do so, questions may be put to Dr. Mundle limited strictly to the following: (i) whether he knew Dr. Jackiewicz before writing his first report in this case in February 2019, and (ii) how long he has known Dr. Jackiewicz, and (iii) whether he has known Dr. Jackiewicz professionally, personally or both.

[21] Those questions are relevant to the weight to be attached to Dr. Mundle’s evidence, and the answers run no risk of unduly prejudicing Dr. Jackiewicz as noted above and which would run contrary to the decision already made by Justice Murray striking any attempt by the Plaintiffs to rely upon similar fact evidence against Dr. Jackiewicz. In that regard, reference is had to Murray J.’s ruling reported at Woods v. Jackiewicz, 2013 ONSC 519.

[22] Finally, there are three portions of Dr. Mundle’s reports that are objected to by counsel for the Plaintiffs, or at least which are the subject of some concern. My rulings are necessarily brief. Dr. Mundle is taking the stand forthwith.

[23] First, Dr. Mundle is strictly limited to saying nothing more about steroids than that included in the two brief paragraphs contained in his March 15, 2019 report.

[24] Second, Dr. Mundle shall not give any evidence on the negligence questions that are before the jury. He may opine on causation only.

[25] Third, as long as he clearly states the foundation for his evidence, Dr. Mundle may comment on whether amnioreduction was being performed at McMaster in the early 1990s (see page 5 of his February 7, 2019 report). He will of course be open to cross-examination as to whether that commentary is anything beyond mere conjecture.

Conlan J. Date: April 4, 2019