SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LORENA CHEESMAN, RUBEN REINOSO and YVONNE REINOSO
Plaintiffs
AND:
CREDIT VALLEY HOSPITAL, DR. MICHAEL MILLER, DR. NORMAN EPSTEIN, DR. ALICIA SARABIA, DR. LORNE SMALL, DR. DEEPA SONI, DR. ROBERT DAILY, KATHLEEN DYKSTRA, BARBARA McGOVERN, ANNA-LIZA TEODORO, BILLY DANIEL YAMILEE JULIEN, ROSE BECKFORD and JOHN and JANE DOE (representing a number of physicians, health care professionals and/or hospital employees involved in the care and treatment of LORENA CHEESMAN on December 24 and December 25, 2007 at CREDIT VALLEY HOSPITAL)
Defendants
BEFORE: KOEHNEN, J.
COUNSEL: Ron Bohm, Amani Oakley, Neil Oakley and David Lee for the Plaintiffs
Eli D. Mogil, Atrisha S. Lewis, Natalie V. Kolos, for the Defendants, Dr. Sarabria, Dr. Small and Dr. Soni;
Mark Veneziano, Nina Bombier, Chris Kinnear-Hunter, for the Defendant, Dr. Robert Daily
HEARD: March 6, 2019
ENDORSEMENT
1In December 2007, the plaintiff Lorena Cheeseman (now known as Lorena Reinoso) developed orbital cellulitis, an infection of the inner orbit of the eye. She immediately sought medical treatment. On December 24, 2007 Ms. Reinoso went to the emergency room at Credit Valley Hospital at approximately 3:00 a.m. She emerged 6 months later with half of both feet and nine of ten fingers partially or entirely amputated. The amputations were required because of complications that developed from her infection.
2The plaintiffs argue that the defendants’ negligence caused the complications. The defendants argue that Ms. Reinoso’s complications arose from medical conditions that could not be prevented or cured and that they breached no standard of care.
3The matter proceeded as a jury trial over which I presided. It ran from March 18 to July 4, 2019. Shortly before the trial began I heard argument on several motion that would affect the conduct of the trial. I released my dispositive rulings on March 9, 2019 with more detailed reasons to follow. I am releasing the reasons after the trial has concluded. While that was not my original intention, the trial required significant attention outside of regular court hours which prevented me from addressing the reasons before the trial concluded.
Cross-Examination of Nurses
4Until shortly before trial, the defendants consisted of four physicians, the Credit Valley Hospital and a number of nurses affiliated with the Credit Valley Hospital who provided care to Ms. Reinoso in December, 2007. A few weeks before trial, the plaintiffs and the physicians agreed on damages during the course of a judicial mediation. At the same mediation the plaintiffs also settled their claims against the Hospital and the nurses pursuant to a Pierringer Agreement (for ease of reference the Hospital and the Nurses will be referred to collectively as the Nurses).
5All parties agreed that, if the jury found any of the physicians liable, the jury would be required to determine if the Nurses were liable and, if so, would have to allocate liability between the Nurses and any physicians they found liable. Any judgment against the physicians would be limited to the percentage of the agreed damages amount equal to the percentage of liability that the jury attributed to the physicians.
6In other words, if the agreed-upon damages were $100 and the jury found the Nurses 60% liable and the physicians 40% liable, then judgment would go against the physicians for $40. A finding of liability against the Nurses would not affect the amount they had to pay because that amount had already been fixed by the Pierringer Agreement.
7The settlements led the physicians to bring a motion for an order entitling them to cross-examine any of the Nurses at trial, regardless of who called them as witnesses.
8The physicians had cross-claimed against the Nurses thereby giving them a prima facie right of cross-examination. As a result of the plaintiffs’ settlement with the Nurses, they would not be appearing at trial unless someone called them as witnesses. While the physicians’ primary position was that no one breached any standard of care to Ms. Reinoso, they argued in the alternative that, it there was a breach of the standard of care, it was by the Nurses. It remained in the physicians’ interest at trial to attribute as much liability to the Nurses as they could.
9As a result of the settlement, however, the Nurses would no longer be appearing at trial unless someone called them as witnesses. The plaintiffs may not have an interest in calling the Nurses if doing so allowed the physicians to cross-examine them thereby potentially reducing the plaintiffs’ recovery against the doctors. In that case the physicians would have to call the Nurses as witnesses and in doing so, would generally be limited to examining them in chief. The doctors say this is unfair because they had rights of cross-examination by virtue of their cross-claim which should not be taken away by the settlement between the plaintiffs and the Nurses.
10The plaintiffs oppose the motion and argue as follows: The interests of the Nurses and the physicians have always been aligned despite the cross-claims. Neither the Nurses nor the doctors served expert reports criticizing each other. Many of the Nurses continue to work with the physicians. Case law warns us that cross-examination in non-adversarial circumstances may distort rather than enhance the truth finding function of the trial: Elder v. Rizzardo Bros. Holdings Inc., 2016 ONSC 7235 at paragraphs 22 to 31 and particularly at paragraph 25; Gru v. McLellan, 2018 NSSC 69 at paras. 61-65.
11In disposing of the motion before trial, I ordered that both the plaintiffs and the physicians would have the right to cross-examine the Nurses regardless of who called them as witnesses.
12As a general rule, if a defendant has mounted a cross-claim against a co-defendant, both can cross-examine each other at trial. The fact that they have served expert reports criticizing each other does not prohibit cross-examination. Depending on the circumstances of the case, claims can be successfully advanced against medical practitioners even without an expert report.
13Until shortly before trial, the physicians had run their case on the assumption that they had a cross-claim against the Nurses which entitled them to cross-examine. The fact that the plaintiffs settled with the Nurses does not diminish the adversity of interest the cross-claim created. It continues to be in the physicians’ interest to ascribe as much liability to the Nurses as possible. Cross-examination is a more useful tool for doing so than examination in chief.
14Many courts have recognized that partial settlements can create substantive or procedural unfairness for the non-settling defendants. See for example Rains v Molea, 2012 ONSC 4906 at para 17. Courts have developed a variety of techniques to safeguard the non-settling defendants from such unfairness: Hollinger Inc (Re)., 2012 ONSC 5107 at para. 111-113; Ontario New Home Warranty Program v Chevron Chemical Co (1999), 1999 CanLII 15098 (ON SC), 46 OR (3d) 130 (Ont. SCJ) at para. 77(4).
15Techniques to prevent unfairness have included allowing parties to cross-examine settling parties, and allowing all parties remaining in the action to cross-examine a settled defendant: Bucknor v Ryder, 2001 ABQB 1008. That is the fair solution here. It preserves the rights everyone thought the physicians had against the Nurses. The plaintiffs and the Nurses should not be able to deprive the physicians of that right by virtue of the Pierringer Agreement.
16However, just as the settlement should not prejudice the physicians’ ability to ascribe liability to the Nurses, nor should it prejudice the plaintiffs’ claim against the physicians.
17The plaintiffs had presumably run their case on the understanding that they would be ascribing liability to both Nurses and physicians. The adversity of interest between the plaintiffs and the Nurses was obvious. The plaintiffs were entitled to use that adversity of interest on discovery to obtain evidence from the Nurses that ascribed liability to the physicians. The plaintiffs continue to have an interest in introducing that evidence at trial.
18Now that the plaintiffs have settled with the Nurses, it may be more difficult to obtain that evidence if the plaintiffs are restricted to examining the Nurses in chief. By way of example, if a Nurse implicated a physician on discovery but did not volunteer that evidence in chief, the plaintiffs would generally be prevented from impeaching their own witness with a prior inconsistent statement. While they could seek leave to have their own witness treated as adverse, that determination is governed by principles that are not necessarily applicable to the situation at hand.
19The risk of mischief may be particularly high if, as the plaintiffs indicated on the motion, many of the physicians continue to work with the Nurses.
20To restrict the plaintiffs to examining the Nurses in chief may also discourage partial settlements; an undesirable result from a policy perspective.
21As a result, the most appropriate way of addressing any concerns about trial fairness that the Pierringer Agreement creates is to allow both the plaintiffs and the physicians to cross-examine the Nurses, regardless of who calls them.
22As a related matter, the doctors also asked for the ability to call sur-reply evidence if they called any of the Nurses at trial and if the plaintiffs called reply evidence in response. The plaintiffs did not push their objection to that issue. It struck me as a reasonable way of balancing the interests of both parties and was permitted.
Jury Questions
23Three principal issues arose with respect to the jury questions: (i) When to set them; (ii) How they should be sequenced; and (iii) The form of the question on causation.
(i) When to Set the Jury Questions
24While not the centerpiece of their argument, defence counsel submitted that the jury questions should be set at the end of trial, not before trial. I do not agree.
25In Sacks v. Ross, 2017 ONCA 773 at para. 66 the Court of Appeal stated that a civil jury trial should start with a working set of jury questions to guide the court, subject to revision as the evidence unfolds. The Court noted that it is bad practice to do otherwise.
26Here, the issues were such that proceeding to trial without jury questions created the potential for confusion. Jury questions set an analytical structure that guides the jury in its deliberations. The sequence and form of those questions can be expected to influence how counsel lead evidence and frame questions at trial. Doing so enhances the jury’s ability to absorb the testimony in a way that corresponds to the task they must undertake during their deliberations.
27As a result, I set the jury questions at the outset of the case. Neither side asked me to re-visit those questions in light of developments at trial.
(ii) Sequencing of the Jury Questions
28The plaintiffs proposed a set of jury questions. The first of which I will refer to as the threshold question for ease of reference which was:
“Has it been proven, on a balance of probabilities, that substandard treatment or a delay in treatment caused Lorena Reinoso’s injuries?”
29That was followed by a series of identical questions in respect of each of the defendants the first of which I will refer to as the causation question which was:
“Have the plaintiffs proven, on the balance of probabilities, that the treatment or the delay resulting from [insert name of defendant] breach of the standard of care caused or contributed to the injuries of Lorena?”
This in turn was followed by what I will refer to as the standard of care question which was:
[If so] “How did Dr. Sarabia breach the standard of care? Please provide clear and specific answers.”
30I will address the plaintiffs’ threshold and standard of care questions here and will address the causation question in the next section of these reasons. In my dispositive ruling I disallowed the threshold question and revised the standard of care question.
31The threshold question is not without judicial support. In Sacks, the Court of Appeal suggested that a similar question would have been appropriate in that case. Other appellate decisions prefer to have the first jury question focus on the breach of the standard of care. See for example, Chasczewski v. 528089 Ontario Inc. (Whitby Ambulance Service) 2012 ONCA 97 at para. 15. I find the latter approach preferable for this case.
32I have two principal difficulties with the plaintiffs’ threshold question. First, it combines the questions of causation and standard of care. Second, if anything it places the emphasis on causation. In doing so it suggests that a breach of the standard of care has been assumed.
33Combining different tests or different elements of a test in one question is generally inadvisable. Jury questions should not contain embedded assumptions. Nor should they be phrased as compound questions. Jury questions should be phrased neutrally and should not “nudge the jury to a particular result”: Sacks at para 62.
34In negligence cases, the trier of fact should, as a general rule, determine whether a defendant breached the standard of care before addressing causation. Without a breach of the standard of care, the question of causation is irrelevant. As the Court of Appeal held in Chasczewski v. 528089 Ontario Inc. (Whitby Ambulance Service) 2012 ONCA 97 at para. 15:
The question whether the standard of care was met should be decided before the question of factual causation: see Bafaro v. Dowd, 2010 ONCA 188, 260 O.A.C. 70; and Randall v. Lakeridge Health, 2010 ONCA 537, 270 O.A.C. 371. It must be resolved first for two reasons. First, without a finding that the defendant has breached the standard of care, the question of causation becomes moot. Second, and more important for this case, it is the defendant’s particular substandard act or omission that must be shown to have caused the harm; therefore, it is necessary to identify that act or omission to determine what, if any, connection it has to the harm at issue. In other words, causation can only be assessed in the context of a breach of the standard of care.
35Most legal tests require the trier to answer one or more specific questions. The questions serve several purposes. They separate into individual issues the tangled web of evidence that trials often present. They impose intellectual rigour that helps analyse issues coherently. They help triers express rational conclusions instead of emotional reactions.
36The order in which questions are posed is integral to their purpose. If the exercise in a negligence trial is to determine whether a defendant should be held liable, the initial focus should be on the defendant’s conduct. Focusing first on the defendant’s conduct is essential to a fair result.
37The plaintiffs’ first question, which I repeat here for convenience is:
“Has it been proven, on a balance of probabilities, that substandard treatment or a delay in treatment caused Lorena Reinoso’s injuries?”
38The focus of the question is not to determine if a particular defendant breached his or her standard of care. Instead the focus is on causation. Asking the causation question before the standard of care question is potentially unfair to a defendant because it places the initial focus on the injury the plaintiff suffered. This creates the risk that understandable sympathy for a plaintiff’s injury will influence the result. Sympathy for the injured plaintiff should play no role in determining whether a defendant is liable.
39At a minimum, a threshold question of this sort creates the possibility of confusing a jury. Perhaps to the point of misunderstanding that they must answer two specific questions to find a defendant liable: did the defendant breach the standard of care and did that breach cause the plaintiff’s injury: Cheung v. Samra, 2018 ONSC 3701 at para. 29.
40Not only does the proposed question combine standard of care and causation, it also combines all four doctors and the Nurses into a single amorphous care-giver.
41How can one rationally answer the proposed threshold question without asking whether a particular defendant breached his/her standard of care; then asking whether that particular breach caused injury to the plaintiff; and then repeating the exercise for each of the four doctors and, if necessary, the Nurses.
42Bundling standard of care, causation, four doctors and the Nurses into a single compound question impedes rational analysis and encourages emotional reaction.
43Although the plaintiffs’ proposed questions did envision asking causation and standard of care questions in respect of each defendant, those questions would be asked only after the jury had already answered the threshold question. In other words, the more rational questions would be asked only after the jury had concluded that they will be awarding judgment to Ms. Reinoso. Sequencing the questions in that way would, at the very least, be “nudging” the jury to a particular result which the Court of Appeal warned against in Sacks at para 62.
44Moreover, when the plaintiffs do propose to ask their standard of care question it is not a question that asks whether a particular defendant has breached a standard of care. Instead, it asks how the defendant breached the standard of care. In other words, it does not ask whether there has been a breach of the standard of care but assumes that there has been a breach. That too, “nudges” the jury to a particular result.
45Even then, what is in my view the plaintiffs’ defective standard of care question is only asked after their causation question, thereby further diminishing the importance of the standard of care question.
46The effect of the plaintiffs’ proposal is never to ask a stand-alone standard of care question. What should be the first question in a negligence action is never actually asked. Instead the concept of standard of care is either embedded in compound questions about causation or when referred to separately is not phrased to determine if a defendant beached a standard of care but is phrased to assume that a defendant breached a standard of care.
47As a result of the foregoing, I directed that there be no threshold question and that the first question to the jury should be:
“Have the plaintiffs proven, on a balance of probabilities, that [individual defendant’s name] breached the standard of care that [he/she] she owed to Ms. Reinoso?”
48That would be followed by a question that asks the jurors to provide particulars of the breach of the standard of care as follows:
“If your answer to question one is yes, how did [name of defendant] breach the standard of care. Please provide clear and specific answers.”
(iii) The Causation Question
49The most contentious issue between the parties on the causation question was the use of “caused or contributed” or “but for” language.
50The plaintiffs’ proposed causation question was:
“Have the plaintiffs proven, on the balance of probabilities, that treatment or the delay resulting from [name of defendant] breach of the standard of care caused or contributed to the injuries of Lorena?”
51The defendants’ proposed causation question was:
“If your answer to Question # 11 is “YES,” have the Plaintiffs proven on a balance of probabilities that but for this breach of the standard of care Ms. Cheeseman’s injuries would have been avoided?”
52The question I directed was:
“If your answer to question one is yes, have the plaintiffs proven on a balance of probabilities that [defendant’s name] breach of the standard of care caused or contributed to the injuries of Ms. Reinoso?”
53The defendants submit that it is not sufficient for a breach of the standard of care to have “contributed” to Ms. Reinoso’s outcome unless it is also a “but for” cause. The defendants rely on the Supreme Court of Canada’s decision in Clements v. Clements, 2012 SCC 32 in support of this proposition where the court stated at para. 8:
“The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence.”
54Although the court in Clements affirmed the “but for” test, it also affirmed the use of “caused or contributed” language in certain circumstances.
55The issue between the two formulations arises because the application of the “but for” test can cause confusion in cases with multiple tortfeasors.
56The classic scenario to describe the problem involves three tortfeasors who lean on a car parked at a cliff’s edge. Their combined weight causes the car to slide over the cliff. No one person’s weight was enough to force the car over but the weight of two people was sufficient to do so: Michael D. Green & William C. Powers Jr., Restatement of Torts: Liability for Physical and Emotional Harm, 3d ed. (St. Paul, MN: American Law Institute Publishers, 2010), at section 27, illustration 3 quoted in Sacks at para. 113. This is sometimes referred to as the circular causation problem.
57When asking in relation to any one of the three tortfeasors, whether the car would have been damaged “but for” that person leaning on the car, one could answer “no” because the car was damaged as a result of the force applied by the other two tortfeasors. Put another way, the force applied by the third tortfeasor was not a “but for” cause of injury because the injury would have occurred in any event because of the other two tortfeasors. If that analysis is applied to each of the tortfeasors individually, no one is found liable even though the injury was caused by the combined negligence of the three.
58Similar confusion could arise in Ms. Reinoso’s case. The jury could conclude that all five defendants breached their standard of care to Ms. Reinoso. However, when asking the “but for” question in relation to any single defendant, the jury could conclude that a particular defendant did not cause injury because the injury would have occurred in any event because of the conduct of the other defendants.
59Other courts have concluded that circular causation problems can be resolved by using “cause or contribute” language.
60In Clements, the Supreme Court of Canada recognized that in cases where two or more defendants are found to have breached a standard of care and each defendant points to one or more others as having caused the injury, it can be difficult to determine with precision which breach caused the injury. In cases, where it is “impossible” to prove the “but for” causation of each defendant individually, the Court found it appropriate to ask whether the breach of a particular defendant caused or “materially contributed to the risk of the injury”: Clements at para. 13.
61The defendants submit that Clements is distinguishable from the present case because here it is not “impossible” to prove causation. The plaintiffs’ experts’ reports do not assert that it is impossible to prove “but for” causation. In fact they explain how each defendant caused injury. In my view this misses the mark.
62In Clements court explained at para. 39 that “impossibility” stems from the difficulties that arise in cases with multiple tortfeasors who point the finger at each other:
“What then are the cases referring to when they say that it must be “impossible” to prove “but for” causation as a precondition to a material contribution to risk approach? The answer emerges from the facts of the cases that have adopted such an approach. Typically, there are a number of tortfeasors. All are at fault, and one or more has in fact caused the plaintiff’s injury. The plaintiff would not have been injured “but for” their negligence, viewed globally. However, because each can point the finger at the other, it is impossible for the plaintiff to show on a balance of probabilities that any one of them in fact caused her injury. This is the impossibility of which Cook and the multiple-employer mesothelioma cases speak.
63Like Clements, this is a case in which a number of alleged tortfeasors. As in classic circular causation problems, this is a case in which the conduct of various defendants is alleged to have overlapped. The plaintiffs allege that Doctors Soni and Small provided care concurrently. The same is alleged of: Doctors Small and Daily; Dr. Soni and the Nurses; and of Dr. Daily and the Nurses. In addition, the plaintiffs allege that the effects of Dr. Sarabia’s care continued into the time that the other doctors and the Nurses provided their care, although the plaintiffs allege that those other caregivers could have stopped the adverse effects of Dr. Sarabia’s care.
64The difficulty is that, assuming the jury finds a breach of the standard of care, no one knows whether the jury will interpret the evidence in a way that makes them feel comfortable with the notion that one caregiver could have stopped the adverse effects of a prior or simultaneous caregiver or whether the jury will interpret the evidence in a way that has them accept collective causation even though they cannot answer the “but for” question in relation to any single care-giver. Unfortunately we will not have any inkling about that until after the jury renders its verdict. Even then we will not truly know because of prohibitions against communicating with juries about their deliberations.
65As in Clements, the defendants point the finger at each other. The physicians have a cross claim against the Nurses and argue that, if there was negligence, it was the Nurses who were at fault. While it was not clear at the time the motion was argued, the physicians also made what I would refer to as “soft” suggestions of responsibility against each other. By way of example, at trial, Doctors Small and Daily testified about certain things that Dr. Soni did not tell them which would have been helpful for them to know. While they did not say Dr. Soni was negligent in failing to communicate the information, they were, as a practical matter, telling the jury that Dr. Soni omitted to do something that she should have done.
66Given the presence of multiple tortfeasors who are pointing the finger at each other, the circumstances of this case meet the criteria the Supreme Court of Canada established to justify using “cause or contribute” language. In Clements, however, the Supreme Court of Canada went further than the plaintiffs ask me to. In Clements, the Supreme Court of Canada authorized courts to use jury questions that ask whether the defendant “caused or contributed to the material risk of injury.” The plaintiffs here only propose a question that asks whether a defendant caused or contributed to the injury. That is a more conservative question than the Supreme Court of Canada approved of in Clements.
67More recently, the Ontario Court of Appeal considered “cause or contribute” language in Sacks v. Ross 2017 ONCA 773. In that case, the underlying question was how to apply the “but for” test in cases of delayed medical diagnosis involving multiple tortfeasors: at paragraph 10. That is effectively the situation here. The plaintiffs allege that the defendants did not properly diagnose and did not provide proper treatment to Ms. Reinoso until it was too late.
68The court noted that there was nothing new about jury questions that ask whether a defendant caused or contributed to the injury. It cited numerous authorities in which such language had been used: K. Bracken, C. Grauer and L. Warren, Civil Jury Instructions (second edition – 2017 update) (“CIVJI”), Appendix C Sample Form1; D. Houston and M. Sopinka, The Trial of An Action – Second Edition. (Toronto: Butterworths, 1998) in Appendix 16; Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, at para 26; Athey at paras.13 and 17; Cottrelle v. Gerrard, (2003) 2003 CanLII 50091 (ONCA), 67 O.R. (3d) 737 (C.A.) at para. 25; van Dyke v. Grey Bruce Regional Health Centre, 2005 CanLII 18841 (ON CA), [2005] O.J. No. 2219 (C.A.) at para. 44; Beldycki Estate v. Jaipargas, 2012 ONCA 537 at para. 44, Wilson v. Beck, 2013 ONCA 316 at para. 46; and Mangal v. William Osler Health Centre, 2014 ONCA 639 at para. 56.
69As the Court of Appeal explained in Sacks, the “cause or contribute” question is no different than the “but for” test. It is simply the way the “but for” question is phrased more clearly when dealing with multiple defendants in a delayed treatment case. That is the situation here.
70The defendants submit that the “but for” test already avoids the circularity problem by virtue of the way in which courts have refined it. For example, the “but for” test does not require the plaintiff to establish that the defendant’s negligence was the sole cause of injury but only that it was part of the cause of an injury even if one defendant’s act may not have been enough to create the injury: Sacks at para 69 quoting Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 at para. 17. The “but for” test should be applied in a robust common sense fashion; Clements at para. 9. Juries may draw common sense inferences of causation under the “but for” even without scientific evidence of causation: Clements, para. 10 and 11.
71If, however, it is already well accepted that a defendant will be liable if he caused “some” injury, even if his conduct alone was not sufficient to cause the injury, then asking whether the defendant caused or contributed to the injury merely translates the “but for” test into everyday language. Given that one characteristic of a good jury question is that it be as simple and clear as possible (Sacks at para. 62), is it really necessary to cloak a simple idea in complex language?
72The defendants submit that the analysis in Clements and Sacks is distinguishable. They rely on Cheung v. Samra, 2018 ONSC 3701 in support of that proposition where Justice Darla Wilson rejected cause or contribute language. On my reading, it is Cheung that is distinguishable. That case dealt with two doctors who had no cross-claims against each other, who provided distinct care at different times and in different circumstances: para. 16.
73The parties also differed about whether the jury should be asked to provide reasons for their conclusion on causation as they are on their conclusion about standard of care. The defendants provided numerous precedents in which juries were asked for reasons about causation. In my view having the jury provide brief reasons if they find that a defendant’s breach of the standard of care caused injury is desirable. It keeps jurors focused on the need for a rational analysis and diminishes the risk of verdicts being driven by sympathy or irrational analysis.
Use of Demonstrative Evidence in Opening
74The plaintiffs want to use a number of images as demonstrative aids in their opening, most of which the defendants object to.
75The use of demonstrative aids in trial openings turns on four questions:
(a) Will counsel proposing to use the demonstrative aid undertake to prove it?
(b) Is it likely relevant?
(c) Is it likely to assist the trier of fact in understanding the case?
(d) Is there anything unusually prejudicial about the demonstrative aid that would require it to be excluded?
The answers to these questions should be assessed in light of the purpose of an opening address: Hayes v. Symington, 2015 ONSC 7349; Whitford v. Swan [1995] O.J. No. 4189, (O.C.J.).
76The demonstrative aids in dispute are found at pages 48-51 and 56 of the motion record. Page 48 of the motion record was a picture of Ms. Reinoso decorating a Christmas tree. I disallowed its use because it was irrelevant. The plaintiffs submit that the photograph is relevant because it shows Ms. Reinoso as a happy, active person before her infection which can be contrasted with her state after the infection. To the extent a single picture of someone decorating a Christmas tree does it fact demonstrate this, it remains irrelevant because damages have been agreed to.
77Pages 49, 50 and 51 of the record were the most contested images. Page 49 shows the toes of both of Ms. Reinoso’s feet protruding from hospital bandages. The toes are completely black. Page 50 shows Ms. Reinoso’s two feet. It shows feet that have healed but demonstrate that the toes and part of the forefeet have been amputated. Page 51 shows both of Ms. Reinoso’s hands after the fingers had been amputated and after they had healed.
78The defence admitted the accuracy of the photographs but objected to their use because: the photos were irrelevant, unlikely to assist the trier of fact in understanding the case and were prejudicial. Since damages had been agreed to, the jury did not need to understand the specific nature of Ms. Reinoso injuries to determine breach of a standard of care or causation.
79I allowed plaintiffs’ counsel to show the jury the photographs in opening.
80It is helpful for the trier of fact to understand why there is a lawsuit at all, whether Ms. Reinoso’s infection was minor or serious, what its consequences were, and whether Ms. Reinoso’s complaint was genuine or whether she might be exaggerating. All of this is helpful for the jury to understand even if damages had been agreed to. The photographs demonstrate this far more quickly than words would.
81While it might not be appropriate to display the photographs during the entire opening, the plaintiffs proposed to show them only briefly.
82During oral argument Mr. Bohm submitted for the plaintiffs that the photographs were also relevant because the plaintiffs and the defendants had different theories about the source of the gangrenous infection. The plaintiffs’ theory tied the gangrene to the defendants’ alleged negligence. The defendants’ theory was that the gangrene was the result of one of two medical phenomena that had nothing to do with the defendants’ acts or omissions. A gangrenous infection that was the product of the plaintiffs’ theory was said to differ in appearance from a gangrenous infection that was the product of the defendants’ theory. According to Mr. Bohm, showing the jury a picture of the toes would assist them in assessing that issue. 2
83The defence argued forcefully that the images were prejudicial because they would elicit sympathy for Ms. Reinoso. The defence pointed to Hayes where the court refused to admit a “series of graphic photographs depicting the condition of the plaintiff’s right leg in which the skin was gaping with white tissue visible.” The court described the photographs as “very graphic, to say the least.”
84In Hayes, the court did not allow the photographs to be used in opening because of the risk that they would elicit sympathy from the jury and potentially affect their decision-making process.
85I am satisfied that, in this case, the proposed photographs are not prejudicial.
86There is no suggestion that the photographs are inaccurate or that they distort Ms. Reinoso’s condition at the times they were taken.
87When the issue was argued, the trial was expected to last six weeks. As a result, the jury would not be expected to make any decision until six weeks after seeing the photographs. I am satisfied that a jury would not be improperly influenced by three photographs that were projected on a screen for a few seconds each when making a decision six weeks later. (In the end result the trial took 13 weeks).
88As several courts have noted, the prevalence of media images has tended to make people less sensitive to graphic images:
“…modern, sophisticated juries are unlikely to quickly abandon their personal oaths or affirmations and reach an emotional verdict based upon graphic and disturbing photographs. Gruesome and grotesque images are commonplace in daily news reports, on internet websites, on television and in the movies. R. v. Granados [2017] O. J. No. 2578 at para. 5; R. v. Légaré, [2010] O.J. No. 3742 (S.C.J.); aff’d, [2014] O.J. No. 601 (C.A.); R. v. Kinkead [1999] O.J. No. 1498 at paragraph 16 – 18.
89Page 56 of the motion record was an image of a patient with orbital cellulitis with one eye swollen shut and an image of a CT scan. I disallowed these images because they were not of Ms. Reinoso but of an unidentified patient with an unidentified condition taken at an unidentified time. In those circumstances I found them to be irrelevant and unlikely to assist the trier of fact in understanding the case.
Use of PowerPoint Presentations by Experts
90The plaintiffs proposed that two of their experts, Dr. Gill and Dr. Kumar be permitted to use PowerPoint presentations during their evidence. In my dispositive ruling I disallowed the specific presentations they proposed to use, but allowed experts to use PowerPoint if the slides conformed to the guidelines set out in paragraph 106 below.
(i) Dr. Gill’s Presentation
91Plaintiffs’ counsel submitted that the PowerPoint Dr. Gill proposed to use was one he used to teach students. The thrust of the submission was that if this was information that medical students were taught, then surely, we should expect physicians to be aware of it.
92The standard of care relevant to this trial was the one that prevailed in Ontario in 2007. I had no evidence to establish that Dr. Gill used his proposed PowerPoint to teach students, let alone that he used it to teach students in 2007.
93Dr. Gill graduated from medical school in 2005. In 2007 he was an intern. The proposed PowerPoint presentation is 32 pages long. It would be unusual for an intern to have prepared a presentation of that length and detail to teach students. While unusual does not mean impossible, it does mean that I should have a statement from Dr. Gill to the effect that he or others used the proposed PowerPoint to teach students in 2007, rather than counsel’s submission to that effect.
94Moreover, the cover page of the PowerPoint presentation clearly indicates that at least the cover page was not prepared in 2007 because it describes Dr. Gill as an orbital surgeon, ophthalmologist and assistant professor at the University of Toronto. He held none of those positions in 2007.
95If the thrust of the submission is that the PowerPoint reflected the standard of care in Ontario in 2007, then the PowerPoint should have been appended to Dr. Gill’s expert report with a statement to that effect. Had that been done, the PowerPoint may well have been relevant to demonstrate what medical students were being taught about orbital cellulitis or sepsis (the condition Ms. Reinoso was alleged to have developed) in 2007. The presentation was not, however, referred to in Dr. Gill’s report nor was there otherwise any statement from him to the effect that the PowerPoint was used in 2007.
96The presentation also raised geographical issues. As noted, the relevant standard of care is that applicable in Ontario in 2007. The PowerPoint contains at least one excerpt of a document from Newcastle Upon Tyne Hospitals in England. That slide is undated. What a hospital in England was communicating internally about sepsis at an indeterminate time is, without more, irrelevant to the standard of care in Ontario in 2007.
97Each page of the PowerPoint has the coat of arms of the University of Toronto centrally and prominently displayed at the bottom of each page. In the absence of evidence that this was a teaching aid used in 2007; the presentation is merely a tool that Dr. Gill is using to try to explain his evidence to the jury. In that case, it would not be appropriate to give Dr. Gill’s evidence the imprimatur of the University of Toronto which display of the coat of arms on almost each slide tends to do.
98Moreover, if the PowerPoint is an aid to giving evidence, then its contents should be contained in Dr. Gill’s report. There were substantial issues about the extent to which the information in the PowerPoint was in fact contained in Dr. Gill’s report. Significant portions were not.
99By way of example, several slides used the word RACE as an acronym applicable to both fires and sepsis. The idea was developed first by indicating what each letter in RACE stood for in a fire fighting scenario. That was then paralleled by slides showing what each letter in RACE stood for when fighting sepsis. The fire analogy is then capped with a vibrant, colour picture of a firefighter in full gear, axe in each hand, striding into a blazing inferno. If in fact an acronym of that sort and the image of a firefighter was widely used as a teaching tool in 2007, those slides might be of some relevance. In the absence of concrete evidence to that effect, they should not be admitted.
(ii) Dr. Kumar’s Presentation
100Dr. Kumar’s PowerPoint presented different issues. It ran to 79 pages, many with dense text. Some of the slides contained information that was not found in his reports. Those should be excluded for that reason alone. For purposes of the motion I was prepared to accept that most of the slides contained information that was also found in his reports. Even those slides were problematic for different reasons.
101As a matter of convention, expert reports are not given to juries. It is the oral testimony of the expert that is evidence, not the report. Some courts have explained the reluctance to give jurors copies of expert reports in the context of rules concerning prior consistent statements. An expert’s report is a form of prior consistent statement that an examiner in chief can usually not put to a witness. Giving the report to the jury gives unfair advantage to the expert because the jury would take the report into the jury room but would not have a transcript of the trial examinations. That puts undue weight on the report and diminishes the testimony given in chief or cross-examination: R. v. Johnson, 2017 ONSC 2084 at para. 15 – 17.
102Allowing Dr. Kumar to testify with the aid of the PowerPoint presentation and perhaps giving the PowerPoint presentation to the jury runs afoul of these rules.
103The further danger with lengthy PowerPoint presentations is that they turn the trial into a false contest between the longest and therefore "best" PowerPoint. PowerPoints should summarize, not expand. It should be a way of giving the listener a visual framework about where they are in someone's presentation; it should not be the presentation itself.
104PowerPoint or other demonstrative aids can facilitate juror comprehension when they clarify facts or distill complex information into a manageable and understandable format: R. v. Kanagasivam, 2016 ONSC 2250 at para 49. Plaintiffs’ counsel submitted that use of the PowerPoint would promote trial efficiency because it would allow information to be communicated more quickly and effectively than would a question-and-answer format. I cannot agree.
105Dr. Kumar’s slides are not visual aids that translate dense text into a chart or diagram. The slides themselves are densely packed with information. Walking the jury through 79 pages of dense text, would not facilitate juror understanding or trial efficiency. Most of the information on the slides is presented without context. As a result, each slide would require an introduction. Moreover, the tendency of almost all parties who use PowerPoint slides with dense text is to read the information on the slide to the listener. Given the density of text on the slides, there was a substantial risk that Dr. Kumar would do just that. Once a witness starts reading, they tend to do so very quickly, creating even further barriers to comprehension for the jury. All of that would not improve trial efficiency but hinder it.
106As a result of the foregoing I gave parties the following guidelines for use of PowerPoint slides at trial:
(a) The PowerPoints must be educational, not advocacy pieces.
(b) The information on the PowerPoint must be found in the report although it may be presented in a visually different manner than in the report.
(c) A slide tending to advocacy, such as the firefighter slide or the Newcastle Upon Tyne slide can be used if: it is a slide that was in existence at the time of or before the plaintiff's treatment, it reflects the standard of care in Ontario at the time and it contains information found in that expert's report. By way of example, if the firefighter slide was used in connection with educational materials for sepsis in 2007 and that materials is referred to in the relevant expert's report, it could be used. Use would have to be agreed to or an evidentiary foundation for it would have to be established.
(d) The slides should not contain external marketing/accreditation information such as the University of Toronto coat of arms on Dr. Gill's slides.
(e) The PowerPoint should not be a way of getting the expert's report into the jury's hands. PowerPoint may be an appropriate tool to educate about medical issues, to highlight certain points in an expert's report, to put in graphic form complex data but not to reproduce or substitute a report. As a result, 79 pages of slides like those of Dr. Kumar would be unacceptable from the start.
Koehnen J.
Date: August 26, 2019.