COURT FILE NO.: 00-CV-199551
DATE: 20191004
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: REGINALD BARKER, JEAN-PAUL BELEC, ERIC BETHUNE (formerly Jean-Jacque Berthiaume), JOSEPH BONNER, WILLIAM BRENNAN by the Estate Trustee MAXWELL BRENNAN, STEPHEN CARSON, ROY DALE, MAURICE DESROCHERS by the Estate Trustee LORRAINE DESROCHERS, DONALD EVERINGHAM, JOHN FINLAYSON, ROBERT FROST, TERRY GHETTI, BRUCE HAMILL, ELDON HARDY, WILLIAM HAWBOLDT by the Estate Trustee BARBARA BROCKLEY, DANNY A. JOANISSE, RUSS JOHNSON, STANLEY KIERSTEAD, DENIS LEPAGE, CHRISTIAN MAGEE, DOUGLAS McCAUL, BRIAN FLOYD McINNES, ALLEN McMANN, LEEFORD MILLER, JAMES MOTHERALL by the Estate Trustees DEBORAH KAREN MOROZ and JANE ALEXIS MARION, MICHAEL ROGER PINET, EDWIN SEVELS, SAMUEL FREDERICK CHARLES SHEPHERD and SHAUNA TAYLOR (formerly Vance H. Egglestone), Plaintiffs
– AND –
ELLIOTT THOMPSON BARKER, GARY J. MAIER and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Defendants
BEFORE: E.M. Morgan J.
COUNSEL: Joel Rochon, Peter Jervis, and Golnaz Nayerahmadi, for the Plaintiffs
William Black, Meghan Bridges, and Bonnie Greenaway, for the Defendants, Elliot Thompson Barker and Gary J. Maier
Sara Blake, Meagan Williams, and Ann Christian-Brown, for the Defendant, Her Majesty the Queen in Right of Ontario
HEARD: October 3, 2019
ADMISSIBILITY OF SUR-rePLY REPORTS
[1] The Defendants, Elliot Thompson Barker and Gary J. Maier, bring a mid-trial motion to determine the admissibility of Sur-Reply Reports prepared by Dr. Dominique Bourget, Dr. Brad Booth, and Professor Jonathan Freedman. The motion is supported by the Defendant, Her Majesty in Right of Ontario. For convenience sake, I will refer to the moving parties here as the Defendants.
[2] The reports in issue have been served on counsel for the Plaintiffs but have not been filed in the trial record. I have had an opportunity to review them as they have been produced to me for the purposes of this motion. The Plaintiffs object to the admissibility of the three Sur-Reply Reports on the grounds that they have been produced at a late point in the trial, after the Plaintiffs’ experts have testified and the Plaintiffs have closed their case, and after the main fact witnesses for the Defendants, Dr. Gary Maier and Dr. Douglas Tate, have completed their testimony. Counsel for the Plaintiffs contend that the Sur-Reply Reports are unnecessary and prejudicial and should not be admissible into evidence at trial.
[3] All three of the authors of the Sur-Reply Reports have submitted initial expert reports that are included in the record, and they are all scheduled to testify in the upcoming weeks. Plaintiffs’ counsel submit that insofar as some of the information contained in the Sur-Reply Reports may represent elaborations on matters already in evidence, those points can be made by the three expert witnesses during the course of their viva voce testimony. Plaintiffs’ counsel argue that to include the written Sur-Reply Reports gives them a stature that they do not deserve, and effectively allows the Defendants to “cooper up” their prior reports by filling in as an afterthought matters that could have and should have been covered in the initial expert reports.
[4] I pause to note that it is not Plaintiffs’ counsel’s contention that the Sur-Reply Reports have been served too late to allow for the preparation time needed to cross-examine the authors. They were all served months ago during the summer hiatus in the trial. Plaintiffs’ counsel has had time to absorb these reports and to review them with their own experts. However, counsel for the Plaintiffs indicate that they may have presented their own experts differently and cross-examined the Defendants’ witnesses differently had they known that the Defendants’ experts would be filing what they say amount to explanatory Sur-Reply Reports.
[5] In my previous mid-trial ruling of March 24, 2019 dealing with the Defendants’ responding expert reports, I set out a number of basic principles governing the late filing of expert reports more generally: Barker v Barker, 2019 ONSC 3182. In the first place, I pointed out that the Court has discretion to admit evidence late that is submitted in response to the evidence of other experts in the trial, but that courts will typically not permit an expert to present “fresh evidence masquerading as a response to the expert report of another party”: Schram v Osten, 2004 BCSC 1788, para 9. In making that determination, courts typically “will consider the potential prejudice and unfair surprise to the respondents; whether the evidence is responsive to the respondents’ case or is merely confirmatory; whether the evidence will assist the court in making its determination on the merits; whether the evidence was available and/or could not have been anticipated as being relevant at the time the application was filed”: Lockridge v Director, Ministry of the Environment, 2013 ONSC 6935, para 31.
[6] Along the same lines, in Quantrill v Alcan-Colony Contracting Co. (1978), 1978 CanLII 1310 (ON CA), 18 OR (2d) 333, the Court of Appeal held that a defense expert is “entitled to express his opinion upon the soundness of the opinion of others, and upon the significance of the facts which were elicited both by oral testimony in the box by two doctors, and by medical reports of the three doctors in question.” At issue in Quantrill was oral testimony by a defense expert, and so as a matter of course this took place after the plaintiff’s case had closed.
[7] Accordingly, it is Defendants’ counsel’s submission that whether in testimony or in a written report, “It is well established that an expert witness can be asked to comment on the opinion of another expert”, Marchand v Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 OR (3d) 97, paras 121-123 (Ont CA), and that this includes an opinion expressed by that expert who has already completed his own testimony. As she put it in argument before me, it is the content of the expert’s opinion, not the form or the medium in which it is expressed, that must be examined.
[8] Turning first to Dr. Bourget’s Sur-Reply Report dated June 11, 2019, it is readily apparent that this is a narrowly tailored responsive report. It is only 4 pages long, and once the introductory portion is eliminated its substantive part is really only 2 pages long. Dr. Bourget lists a number of specific points made by one of the Plaintiffs’ experts, Dr. John Bradford, in his Reply report, and addresses them one at a time. For example, Dr. Bradford had criticized Dr. Bourget’s search for signs that the Plaintiffs suffered objective harm and was critical of Dr. Bourget’s (and other Defense experts’) focus on whether the Plaintiffs exhibited PTSD symptoms, in the process suggesting that the Plaintiffs’ subjective experiences were thereby trivialized. Dr. Bourget gives a specific response to these allegations, explaining the methodology behind her analysis.
[9] Similarly, Dr. Bradford was critical of the fact that the Defendants’ experts did not take account of the young age of some of the Plaintiffs at the time of the incidents in issue in the litigation. Again, Dr. Bourget uses her brief Sur-Reply Report to explain why she relied in her initial expert report on the DSM (Diagnostic and Statistical Manuel) of the time rather than on today’s standards. Dr. Bradford also disagreed with Dr. Bourget’s analysis of the coping abilities that the Plaintiffs exhibited in the wake of their treatment by the Defendants, to which Dr. Bourget specifically responds by putting the Plaintiffs’ abilities to cope in the context of the overall evidence she examined.
[10] One can make similar observations of Dr. Brad Booth’s Sur-Reply Report of June 24, 2019. Again, this short, 4-page report – 3 pages in substance – is narrowly focused to respond directly to specific criticisms levelled by Dr. Bradford. For instance, Dr. Bradford criticized Dr. Booth’s analysis of the minimal role of sleep deprivation in causing harm to the Plaintiffs, and so Dr. Booth responded by distinguishing short term from chronic sleep deprivation and identifies medical literature on point. Likewise, Dr. Bradford accused Dr. Booth of wrongly concluding that persons diagnosed as psychopaths are immune from psychological harm, and Dr. Booth briefly responds by reference to medical literature that explains psychopaths’ response to various types of stress.
[11] Dr. Bradford also expressed concern that Dr. Booth’s initial report is too narrowly focused on seeking out contemporaneous complaints found in the Plaintiffs’ medical records, to which Dr. Booth responds by explaining his premise that long term patients would likely not have experiences that remained undocumented throughout the course of many years. In addition, Dr. Bradford specifically disagreed with Dr. Booth’s view that amphetamines are safe to use for patients with psychosis, to which Dr. Booth briefly responds in his Sur-Reply Report by referring to medical literature that he says supports stimulant medication under some circumstances.
[12] Neither Dr. Bourget nor Dr. Booth offer any new theories in their respective Sur-Reply Reports, and they go no farther than to respond to what may be seen as unanticipated criticisms of their initial expert reports. As Defendants’ counsel put it, Defense experts are not expected to read the Plaintiffs’ experts minds. Once they read all of the Plaintiffs’ experts’ reports, including their Reply reports, and understand the criticisms levelled against them by Plaintiffs’ experts in their testimony, the Quantrill case gives them an opportunity to respond in a specific and limited way.
[13] The Sur-Reply Report submitted by Dr. Jonathan Freedman dated August 12, 2019 strikes an altogether different tone. In the first place, it is longer than the others – a full 10 pages, single spaced, of substantive commentary without any introductory portion. Moreover, it responds in a far more fulsome way not only to the reports of Plaintiffs’ two experts, Dr. Bradford and Professor Bernard Dickens, but to their oral testimony. Defendants’ counsel indicates that Dr. Freedman sat in the body of the courtroom during the entire course of Dr. Bradford’s and Professor Dickens’ testimony – which was certainly his right – and took note of everything that he heard. His Sur-Reply Report embodies his response to the Plaintiffs’ experts’ point of view.
[14] Counsel for the Plaintiffs is highly critical of Dr. Freedman’s Sur-Reply Report, dismissing it as real expert evidence and labelling it a “shameless advocacy piece”. While I might be tempted to tone down this description, I do tend to agree that Dr. Freedman’s 10-page response is more advocacy than objective response. About half of it is written in a way that refers to specific paragraphs of Plaintiffs’ expert reports and the other half is a narrative written in response to what Dr. Freedman heard in court or read in Dr. Bradford’s earlier reports. All of it provides a very different kind of read than the narrow, scientific or analytic clarifications contained in Dr. Bourget’s and Dr. Booth’s Sur-Reply Reports. Dr. Freedman’s responses are more impressionistic and peppered with argumentative – indeed, sometimes sardonic – reactions to what the Plaintiffs’ experts have to say.
[15] A few illustrations will suffice. On page 3 of his Sur-Reply Report, Dr. Freedman takes on Dr. Bradford’s suggestion that treatments other than the experimental drugs favoured by the Defendants could have been prescribed for some of the Plaintiffs. In Dr. Freedman’s words:
Bradford mentions ECT and psychosurgery being available at the time. True. Is he really suggesting that either of these was known to be successful and that it therefore constituted a standard of care?
[16] On page 5 of his Sur-Reply Report, Dr. Freedman takes on Dr. Bradford’s description of psychiatric work that Dr. Bradford himself has done in other hospital facilities. In Dr. Freedman’s words:
Dr. Bradford suggests that at Ottawa he managed patients just as difficult as those at Oak Ridge from 1978 onwards. This may be his opinion but it goes against the fact that Oak Ridge was a maximum security institution and Ottawa was not. In other words, those assigning patients and the relevant advisory review boards considered those at Oak Ridge more dangerous than those at Ottawa. In any case, it’s not clear why he is saying this. Is he arguing that using whatever methods he used he was successful with his patients despite the limited resources and that therefore Barker did not need to use his methods? To justify this claim he would surely have to provide data on his successes, recidivism of his patients, and compare that to Oak Ridge.
[17] Further down on page 5, Dr. Freedman takes on Dr. Bradford’s critique of the Defendants’ failure to comply with ethical protocols for medical research. In Dr. Freedman’s words:
In Dr. Bradford’s reply he criticizes the work as not meeting the most basic requirements of research but then continues to call it research. (It doesn’t look like a duck; it doesn’t quack like a duck; it doesn’t walk like a duck; but we think it is a duck.)
[18] On page 9 of his Sur-Reply Report, Dr. Freedman engages Professor Dickens in debate about whether research and clinical approaches are distinct from each other. In Dr. Freedman’s words:
My conclusion is that this distinction is crucial. The prison study was entirely research and as such was unethical; the Oak Ridge program was clearly treatment, should not be considered research, and was not unethical.
In fact, Dickens acknowledges this point indirectly under cross examination. He agrees that treatment is offered in prisons and that the effect of that treatment may be studied retrospectively. Research is not allowed but treatment that can form the basis for research is. In fact, prisons typically offer treatment for mental conditions and some have a very extensive program of treatment.
[19] To read Dr. Freedman’s words is to understand that he is engaged in more advocacy than science. Asking rhetorical questions without answers, countering an adversary’s observations with statements about what would be needed to justify his points, and the parenthetical use of sarcasm to illustrate his message, are all techniques familiar to those arguing a point rather than to those providing objective expertise. Parsing the opposing expert’s words under cross-examination in order to demonstrate the applicability of one definition over another seems to cross squarely into legal argumentation, challenging the opposing point of view in much the way that counsel does.
[20] A substantial portion of Dr. Freedman’s Sur-Reply Report is comprised of commentary on a study by Drs. Rice, Harris and Cormier entitled “An evaluation of a maximum security therapeutic community for psychopaths and other mentally disordered offenders.” Dr. Freedman characterizes this as “a legitimate study by serious researchers published in a good journal”, but then contends that “for a number of reasons, the conclusions in the article are not justified.”
[21] Dr. Freedman spends nearly three of his ten pages discussing this study in an effort to counter what he sees as the use that Dr. Brantford made of it. Dr. Freedman states, at page 6 of his Sur-Reply Report:
The authors [i.e. Rice, Harris and Cormier] conclude that the program at Oak Ridge benefitted nonpsychopaths but harmed psychopaths. This conclusion has been cited [i.e. by Bradford] as evidence that the program harmed psychopaths.
[22] Without commenting on its cogency, it is fair to say that Dr. Freedman’s critique is thorough. He criticizes the selection of patients for the programs at issue and comments on the lack of randomness in their selection; he observes that the patients’ backgrounds differed from each other in significant ways which impacts on their comparability; he notes that the patients’ individualized personality traits were not taken into account; he disagrees with the measurements used to determine success or failure of the program with respect to the patients’ subsequent conduct; he takes issue with the lack of differentiation between serious and non-serious anti-social behavior following participation in the program under study; he objects to the way in which statistics regarding treated and non-treated patients are compiled and compared. Dr. Freedman’s dissection of the Rice article is in many ways the centerpiece of his Sur-Reply Report, and is positioned as the conclusion to his response to Dr. Bradford. With a lengthy written analysis, Dr. Freedman argues that, contrary to Dr. Bradford’s view, “the article should not be considered evidence for the harmful effect of the program on psychopaths.”
[23] As counsel for the Plaintiffs points out, the Rice article was introduced and commented upon by Dr. Bradford in his initial expert report of Feb. 27, 2017. It was further discussed and elaborated on in Dr. Bradford’s supplementary report of January 8, 2019. Both of those reports were submitted prior to Dr. Freedman’s own initial expert report dated March 22, 2019. Indeed, in his initial report, Dr. Freedman already commented on the Rice article, and identified the Minutes of a 1977 Parliamentary committee session on the subject as providing a response to the Rice article’s conclusions. It is apparent that he could have engaged in the same detailed critique of Rice and her co-authors in his initial report as he has done in his current Sur-Reply Report.
[24] Counsel for the Plaintiffs raises a similar objection to Dr. Freedman’s observations regarding a Donner Foundation proposal for funding of the Defendants’ programs. As Dr. Freedman puts it on page 4 of his Sur-Reply Report in introducing his commentary on the Donner proposal: “It [sic] had not heard of the Donner proposal before. I have now seen Barker’s testimony regarding it.” He then goes on to explain why he views the Donner Foundation’s support for the programs at issue as carrying significant weight.
[25] In response to this portion of Dr. Freedman’s Sur-Reply Report, Plaintiffs’ counsel notes that Dr. Barker is not able to testify. The testimony to which Dr. Freedman refers – i.e. the supposedly new testimony which he has “now seen” – is, in fact, evidence which Dr. Barker gave in support of a motion in 2003 at a very early stage of this action.
[26] In Schick v Boehringer, 2011 ONSC 63, the court held that it is not permissible for follow-up expert reports to be used in a way that effectively splits the case for the side producing that expert. Strathy J. (as he then was) reasoned, at para 15, that a reply report cannot be used “to introduce new evidence that could or should have been made as part of the case in chief”. The same reasoning holds true for a Sur-Reply Report. A party submitting an expert report must ensure that the opposing side understands “from the outset what must be met in response”: R v Krause, 1986 CanLII 39 (SCC), [1986] 2 SCR 466, 473-4. By saving his critical ammunition for a Sur-Reply Report when it could have been used in his earlier report, Dr. Freedman has done what the courts have said cannot be done.
[27] Between its advocacy content and its late introduction of matters which could have and should have come in an earlier report, Dr. Freedman’s Sur-Reply Report does not conform with the criteria that courts have set down for follow-up expert evidence. As indicated, it is a discretionary decision whether or not to admit such evidence, and I am of the view that I should not exercise my discretion in support of its admission. Dr. Freedman can testify as to his expert opinion on the matters in his initial report, and to the extent that matters raised in his Sur-Reply Report are responsive to matters raised against him by the Plaintiffs’ experts he may give oral evidence explaining his view. I will then be in a position to assess the admissibility of his comments on a question-by-question basis.
[28] Dr. Freedman’s Sur-Reply Report is not admissible in evidence at trial.
[29] Dr. Bourget’s and Dr. Booth’s Sur-Reply Reports are admissible in evidence at trial.
Morgan J.
Date: October 4, 2019