COURT FILE NO.: 79524/12 DATE: 20190627 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
COLE PARLIAMENT, an incapable by his litigation guardian KIMBERELY YORK, JOHN PARLIAMENT, and KIMBERELY YORK personally Plaintiffs – and – D.W. CONLEY and V. PARK Defendants
Counsel: H. Elmaleh and M. Hershkop, for the plaintiffs D. Cruz, D. Charach and J. Ur for the defendants
HEARD: June 25, 2019
RULING RE: motion to disqualify expert witness
WOODLEY, J.:
Overview
[1] This ruling relates to the admissibility of expert medical evidence that the defendants propose to elicit from Dr. Karen Fleming on the standard of care applicable to the defendant doctors, Dr. Conley and Dr. Park.
[2] Dr. Fleming would be the defendants’ second expert witness called to testify on the standard of care issue. A family and episodic care physician, Dr. Barry Bruce, has already testified as an expert for the defendants. Dr. Bruce provided expert opinion evidence to the court relating to the standard of care applicable to both Dr. Conley and Dr. Park.
[3] Dr. Fleming is also a family and episodic care physician and an Assistant Professor at the University of Toronto in Family Medicine. The defendants seek to call Dr. Fleming to provide expert opinion evidence to the court relating to the standard of care applicable to both Dr. Conley and Dr. Park. In preparation for her testimony, Dr. Fleming has filed two reports.
[4] The plaintiffs object to Dr. Fleming being qualified as an expert. The plaintiffs’ primary objection is that Dr. Fleming is not a properly qualified expert because her reports reveal that she is biased and lacking independence and impartiality. This, they argue, was also apparent in her testimony on the voir dire. Further, that Dr. Fleming’s evidence is unduly duplicative of Dr. Bruce’s evidence, and therefore, unnecessary.
[5] In contrast, the defendants argue that Dr. Fleming has complied with the obligations of a properly qualified expert. Any concern with Dr. Fleming’s methodology or alleged bias can be effectively dealt with through cross-examination in the same manner that the plaintiff’s dealt with Dr. Bruce’s evidence.
[6] On the issue of duplication, the defendants contend that Dr. Fleming brings a different perspective than Dr. Bruce because Dr. Fleming is a teacher of medical students and physicians, offering a broad perspective on the standard of care applicable in the circumstances. Moreover, because the plaintiffs have called three expert witnesses on standard of care, trial fairness demands admission of Dr. Fleming’s evidence to prevent prejudice.
[7] On June 25, 2019, a voir dire was conducted in the absence of the jury to determine the issue of Dr. Fleming’s qualifications to testify as an expert witness. These are my reasons relating to the plaintiffs’ motion to disqualify Dr. Fleming as an expert witness at trial.
Issues
[8] The sole issue on the motion is the admissibility of Dr. Fleming’s expert opinion evidence with respect to the standard of care of the defendants. The specific concerns raised can be framed as follows:
a. Is Dr. Fleming a properly qualified expert? b. If admitted, would Dr. Fleming’s evidence be unduly duplicative?
Law and Analysis
The Legal Test for Admissibility
[9] As noted by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 82, at para. 19, the legal test for admissibility of expert evidence has two components.
[10] In the first stage, as articulated by the Supreme Court in R. v. Mohan, [1994] 2 S.C.R. 9, the proponent of the evidence must persuade the trial judge that the proposed expert opinion is:
i. relevant; ii. necessary; iii. not barred by any other exclusionary rule; and iv. given by a properly qualified expert.
[11] In the second stage, the trial judge must engage in a gatekeeping function in which the trial judge balances the potential risks and benefits of admitting the evidence to determine whether the potential benefits justify the risks: White Burgess at para. 24.
A Properly Qualified Expert
[12] The main concern raised by the plaintiffs in this case relates to Dr. Fleming’s duty to the court and her willingness and capacity to comply with this duty. As the Court directed in White Burgess, this analysis is best addressed under the “qualified expert” element of the Mohan framework: at para. 53. Therefore, the main issue in this instance is whether Dr. Fleming is a properly qualified expert.
[13] It is trite law that an expert witness has a duty to the court to give fair, objective and non-partisan opinion evidence, and that this duty prevails over any obligation owed by the expert to a party: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 4.1.01(1)(a) and 4.1.01(2). An expert must be aware of this duty and be able and willing to carry it out.
[14] A trial judge’s approach to an expert’s duties and the admissibility of their evidence was outlined by the Supreme Court in White Burgess, at para. 34, where the Court directed:
a proposed expert’s independence and impartiality goes to admissibility and not simply to weight and there is a threshold admissibility requirement in relation to this duty. Once that threshold is met, remaining concerns about the expert’s compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role.
[15] In addition, the Court, citing Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, held:
It is well established that an expert’s opinion must be independent, impartial and objective, and given with a view to providing assistance to the decision maker. However, these factors generally have an impact on the probative value of the expert’s opinion and are not always insurmountable barriers to the admissibility of his or her testimony. Nor do they necessarily “disqualify” the expert. For expert testimony to be inadmissible, more than a simple appearance of bias is necessary. The question is not whether a reasonable person would consider that the expert is not independent. Rather, what must be determined is whether the expert’s lack of independence renders him or her incapable of giving an impartial opinion in the specific circumstances of the case. (Emphasis added.) [Citations omitted.]
[16] The burden is 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 and/or unwilling to comply with that duty: White Burgess, at para. 48. Therefore, the party opposing the expert must show a realistic concern that the expert, despite having signed Form 53, is not impartial. Once a realistic concern is shown, the party seeking to have the expert admitted has the burden to establish on a balance of probabilities that the expert should nonetheless be allowed to give evidence: White Burgess, at para 48; R. v. Abbey, 2017 ONCA 640, 350 C.C.C. (3d) 102.
[17] Notably, the Court emphasized that the threshold is not onerous. Instances where this threshold is not met resulting in the inadmissibility of the evidence, rather than going to weight, will be rare: White Burgess, at para. 49.
[18] Recently, the Court of Appeal for Ontario in Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584, leave to appeal to S.C.C. refused [2017] S.C.C.A. No. 343, emphasized the appropriate role of experts. Experts should not become advocates for the party by whom they are retained. To be of assistance to the trier of fact, an expert must remain objective and their function is to provide the trier of act with expert opinion evidence that is fair, objective, and non-partisan. The expert must be willing and able to provide evidence that is impartial, independent and unbiased. Where the expert crosses the boundary of acceptable conduct and descends into the fray as a partisan advocate, the trial judge is required to fulfil her ongoing gatekeeper function and exclude in whole or in part the expert’s unacceptable testimony.
[19] Finally, it is important to note that an expert who lacks personal knowledge of the matters in issue and is called to give an opinion upon disputed facts, evidence of which has been or will be led at trial, the opinion may be elicited only through the vehicle of a hypothetical question: R. v. G.(P.), 2009 ONCA 32, 242 C.C.C. (3d) 558. Indeed, where an expert bases her opinion on a global view of various pieces of evidence, it is difficult to determine the actual facts upon which the opinion is based. It is not the expert’s role to weigh evidence, assess credibility and choose amongst witnesses in order to determine the premise upon which the opinion is expressed: Khan v. College of Physicians and Surgeons of Ontario (1992), 9 O.R. (3d) 641 (Ont. C.A.) at 35; P.M. Snelgrove General Contractors & Engineers Ltd. v. Jensen Building Ltd., 2015 ONSC 585, 45 C.L.R. (4th) 134. Determining the veracity of witnesses properly falls to the trier of fact.
The Reports
[20] In the present case, Dr. Fleming authored two reports and testified during the voir dire. As a result, my consideration of this matter is focused on a review of the intended and anticipated evidence of Dr. Fleming as demonstrated by her two reports and her testimony elicited at the voir dire.
[21] In the present case, the plaintiffs allege that both reports contain numerous examples of Dr. Fleming’s bias and lack of independence elicited through her weighing of evidence and credibility determinations.
[22] I have reviewed Dr. Fleming’s reports and agree with the plaintiffs that her report reveals credibility assessments, inaccuracies, and methodological flaws, and as a result, a lack of objectivity in her opinions. Below is a summary of some of the issues I have identified.
a. First Report: August 2, 2016
[23] The report indicates that the chart notes state that the head circumference was now 42 c.m. (95th percentile) which Dr. Conley noted prompting a discussion with Cole’s mother Kimberley given he would not be providing ongoing care to Cole as the family was moving away.
[24] I find that this sentence alone contains inaccuracies, relies solely on Dr. Conley’s discovery transcript, or is an embellishment of Dr. Conley’s evidence. For example, Dr. Conley’s chart did not note that Cole’s head circumference was in the 95th percentile, but the 97th percentile. It was the defendants’ expert, Dr. Bruce, who alleged that it was the 95th percentile after re-plotting it. In addition, neither the sentence, nor the report reference Ms. Kimberley York’s evidence that Dr. Conley never discussed Cole’s head size or that Cole did not need to be seen for two months (his next immunization), and that this was the reason that she was provided with the immunization card.
[25] The report states that there is no hospital record of Cole being assessed at a hospital as recommended by Dr. Park in the files reviewed. This is inaccurate. Ms. York took Cole to the emergency department on December 6, 1999, and Dr. Fleming had reviewed this record.
[26] In addition, the report indicates that Dr. Conley did measure head circumference at each visit and did note the increase in percentile prompting appropriate advice for “close follow-up with Cole’s new physician”. In actual fact, the notes of Dr. Conley state “will watch head size”. There is no indication as to who will watch head size nor is there a discussion regarding a new physician in the notes. As a result, I find that her statement is an inaccurate reflection of the undisputed facts and borders on an embellishment of Dr. Conley’s evidence with the effect of totally disregarding Ms. York’s evidence on a highly contested and disputed point.
[27] In referring to Dr. Park, the report indicates that Dr. Park recommended and documented that Cole be taken to the emergency department for assessment. There was no evidence that Dr. Park “recommended” Cole be taken to the emergency department. Dr. Park’s evidence was that he had no recollection of the events and Ms. York explicitly denied that Dr. Park made any such recommendation.
b. Second Report: March 28, 2019
[28] The second report indicates “Kimberley Parliament was advised by her longstanding physician (Dr. Conley) of importance of necessity to follow up Cole’s head circumference. Kimberley Parliament did not follow up Cole’s head circumference”.
[29] Again, this amounts to a complete rejection of Ms. York’s evidence. In addition, it embellishes the evidence of Dr. Conley. Nowhere does Dr. Conley indicate in his notes the importance of necessity to follow-up Cole’s head size.
Analysis
[30] Dr. Fleming’s reports and opinions are based on credibility assessments and fact-finding, not within the role of a properly qualified expert. Her reports are a reflection of her assimilation, interpretation, and acceptance of some, but not all the evidence that she reviewed in preparation for writing her reports and preparing her opinion.
[31] I find that Dr. Fleming both accepted and embellished the information contained in the defendant doctors’ transcripts, despite the fact that neither doctor could recall fully the events that occurred during that period. Her preferential treatment of the doctors’ evidence appears to be to the complete exclusion of Ms. York and Mr. Parliament’s evidence – both of whom testified that they had a clear recollection of the events.
[32] What is particularly fatal to the admissibility of Dr. Fleming’s expert opinion evidence is her refusal to part from her evidentiary conclusions during her testimony at the voir dire.
[33] During her cross-examination, Dr. Fleming was questioned why her report did not reflect a consideration of the plaintiffs evidence or version of events. I found her response to be evasive, defensive, and dismissive, which can be noted in the following exchange:
Q. Isn’t it a fact that nowhere in your reports, in the two reports, do you refer to Ms. York’s evidence; isn’t that true?
A. Cognitively, in forming my written report, I took into consideration all the information that was provided to me. The information that is in the report, did I specifically identify that pieces of information? No. Did it form part of my opinion and my cognitive thought process in getting and forming that opinion? Absolutely. That is what I do everyday. That’s what we all do as physicians everyday.
[34] Dr. Fleming was either unwilling or unable to recognize or acknowledge her preference for the defendants’ evidence, or the flaws in the methodology utilized in reaching her opinion. Indeed, Dr. Fleming’s viva voce testimony in cross-examination only serves to further demonstrate a lack of impartiality and objective analysis.
[35] The following excerpt is example of plaintiffs’ counsel’s attempts to have Dr. Fleming separate her credibility assessments from the evidence and identify the methodology used by her that led her to conclude that both doctors had met the standard of care:
Q. …So you know your obligation. You know you’re required to list the material you reviewed and to list the pertinent information and the relevant information that you relied upon in coming to your opinion, correct?
A. I understand my obligations, and that is outlined in the report.
Q. And your obligation is to list in your report all of the information that was relevant to you in coming to your opinion, correct?
A. That’s correct.
Q. And you say to us, cognitively, you were thinking about what Ms. York said, but what you chose cognitively to do is completely ignore her evidence, correct?
A. Not correct.
A. I’m unclear how I ignored the evidence.
Q. Because Ms. York specifically said that Dr. Conley never told her that there was a concern about Cole’s head size. Quite to the contrary. You might remember if you read the evidence that she actually is the one that raised the concern with Dr. Conley about Cole’s head size, yet he continuously reassured her that there was no problem with it, that it was normal. Do you remember that?
A. I do.
Q. And do you remember Mr. Parliament’s evidence as well, John Parliament, where he said that at least on one visit, he raised this issue with Dr. Conley, and Dr. Conley reassured him that the head was normal; do you remember reading this?
A. I assured you that I read the transcripts, yes.
Q. And do you remember reading this, that Mr. Parliament saying that?
A. Absolutely.
Q. So why do you then, having read that, having read Dr. Conley’s version of events, chose only to include Dr. Conley’s version of events and ignore the patient’s parents? Why?
A. You will see from my report that I looked at the contemporaneously documents throughout and used that to come to an opinion.
Q. But didn’t you read Ms. York’s evidence that she said “Dr. Park never told me to go to the ER,” did you read that?
A. I understand that that was written, and that is what she understood.
Q. So you don’t believe her, then? You say – that’s what you said, but you ‑‑ nevertheless, in my opinion, you made the decision not to take your son to the emergency room; isn’t that what you wrote?
A. No. What I wrote is that it said "go to the ER." Had that visit transpired, that would have occurred. So I’m not ‑‑ I think there’s a disconnect in my understanding. My understanding from the note was that the plan was to go to ER.
Q. She did go to ER in RVH some 20 days later, right?
A. Yes, that’s true.
Q. So number one, that. Number two, you had the mother’s evidence about this, and you didn’t decide even to refer to it or take it into account and weigh and ‑‑ and all I’m suggesting to you that it was not your responsibility to decide who you believe and who you don’t believe. And I suggest to you that’s precisely what you did by completely ignoring the mom’s evidence, not even mentioning it; don’t you agree?
A. We’re going to have to agree to disagree because in the contemporaneously documented note, it says “go to ER.” It was a Saturday, and that is, to this day, a standard way, when a patient is seen outside of office hours when it’s difficult to get resources in order to be seen in a timely way. It is what we’re struggling with at a system level and have not –
Q. And you remember that Dr. Park said in his discovery he has absolutely no recollection of this visit, right?
A. Absolutely. That doesn’t surprise me, actually.
[36] Although during her in-chief at the voir dire Dr. Fleming stated that she understood her duty to the court, I find that her testimony in cross-examination exposed the flaws in her reports. Dr. Fleming whole-heartedly accepted the testimony of both doctors as the gospel truth while high-handedly rejecting the plaintiffs’ evidence without offering any semblance of an explanation. Dr. Fleming improperly assessed the plaintiffs’ credibility while steadfastly refusing to acknowledge her methodology. As a result of her improper fact-finding and credibility assessments, alongside her inability to acknowledge her methodological error, her opinion on standard of care lacks objectivity. In short, Dr. Fleming acted as both judge and jury, exceeded her role, and determined issues that are in the sole purview of the jury.
[37] I find that the bias exceeds that which can be addressed simply through effective cross-examination. The credibility assessments that Dr. Fleming has made are on pertinent and highly disputed issues at trial. The jury is to determine what facts have been proven. There is a serious concern that the premise upon which Dr. Fleming’s opinion is based will be accepted by the jury as conclusive, or in the alternative, the jury’s view of the evidence may be affected by Dr. Fleming’s acceptance of particular facts.
[38] I conclude that Dr. Fleming lacks independence rendering her incapable of providing an impartial opinion. Indeed, her reports and testimony show a level of bias and lack of objectivity that make her evidence of no assistance to the jury. Dr. Fleming is not a properly qualified expert pursuant Mohan and her evidence inadmissible at the first stage of the admissibility requirements. As a result of this finding, I need not enter stage two of the analysis or consider the duplication argument.
Conclusion
[39] For these reasons, the plaintiffs’ motion to disqualify Dr. Fleming is allowed and her evidence is inadmissible.
Justice S.J. Woodley Released: June 27, 2019