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;
Nina Bombier, Chris Kinnear-Hunter, for the Defendant, Dr. Robert Daily
HEARD: March 6, 8, 18, 19, 20, 21, 22, 26, 27, 28, 29, April 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 15, 16, 17, 18, 23, 24, 25, 26, 29, 30, May 1, 2, 6, 7, 8, 9, 10, 14, 15, 16, 17, 21, 22, 23, 24, 27, 28, 29, 30, June 3, 4, 5, 6, 11, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, July 2, 3, and 4, 2019
ENDORSEMENT
on supplemEntary expert’s report and objections
Introduction
1In December 2007, the plaintiff Lorena Cheesman (now known as Lorena Reinoso) developed orbital cellulitis, an infection of the inner orbit of the eye. She sought medical treatment. When things deteriorated she ultimately went to the emergency department at Credit Valley Hospital on December 24, 2007. Matters worsened further. She remained in hospital for six months. Complications from the infection required the amputation of half of both feet and nine of ten fingers.
2By the time the trial began, the plaintiffs had settled the action against certain defendants. At trial, the action continued against four defendant physicians: Dr. Alicia Sarabia (an infectious diseases specialist), Dr. Deepa Soni (a family and emergency department specialist), Dr. Lorne Small (an infectious diseases specialist), and Dr. Robert Daily (an ophthalmologist).
3The plaintiffs argue that the defendants’ negligence caused the complications. They argue that Ms. Reinoso developed sepsis and septic shock, a process whereby an infection in one area of the body spreads to other areas of the body, potentially causing organ failure and death.
4The 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.
5I presided over the trial of the action with a jury between March 18, 2019 and July 4, 2019. These reasons address several dispositive rulings I made at trial for which I gave brief oral reasons but indicated I would provide more detailed reasons later.
6Part I of these reasons deals with request by Dr. Soni to file an expert’s report at trial. Part II deals with general principles applicable to an expert’s ability to testify at trial about matters not addressed in his or her report. Given that five of the six specific objections dealt with in Part III arise out of that common issue, it was more convenient to address the general principles in a single section.
I. Supplementary Expert Report of Dr. Zoutman
7Dr. Dick Zoutman is an infectious disease specialist. By the start of trial, Dr. Zoutman had delivered four expert reports in which he opined on the standard of care applied by the defendant Dr. Sarabia who, as already noted, is an infectious disease specialist.
8Approximately one week into the trial, Dr. Soni, a family medicine and emergency department specialist, sought leave to introduce a fifth report from Dr. Zoutman dated March 24, 2019 which report states that Dr. Soni met the standard of care expected of a family and emergency room physician. For ease of reference I will refer to Dr. Soni as an emergency room physician given that this is her relevant expertise for the purposes of the trial.
9Dr. Soni submits that it would be unfair to exclude the report because there was uncertainty about the extent to which an expert with one medical specialty could opine on the standard of care applied by a defendant physician with a different specialty. Dr. Zoutman states in the March 24 report that he did not provide an opinion on Dr. Soni’s standard of care in any of his four earlier reports because he was not asked to do so and because it was unclear to him whether he, as an infectious disease physician would be permitted to opine on the care of an emergency department physician.
10Dr. Soni submits that this issue was not clarified until I issued a dispositive ruling on the question on March 10, 2019 and released supporting reasons on March 25, 2019 (Cheesman et al. v. Credit Valley Hospital et al., 2019 ONSC 1907).
11In those rulings I held that an expert medical witness could testify about the standard of care applied by a defendant physician with a specialty different from that of the expert, provided the witness could be qualified as having expertise to testify about the defendant’s area of practice. By way of example, an ophthalmologist might be able to testify about the standard of care applicable to an emergency room physician who treated an eye infection if the ophthalmologist had taught emergency room physicians how to do so or if the ophthalmologist had worked with emergency room physicians often enough to have expertise in what emergency room physicians were expected to know.
12Dr. Soni relies on the mandatory language of rule 53.08 to support her request for leave. Rule 53.08 provides:
“If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.”
13One of the instances referred to in rule 53.08 (2) is the failure to file an expert’s report in a timely manner pursuant to rule 53.03 (3).
14Dr. Soni submits that evidence considered under rule 53.08 should be excluded only if the prejudice to justice in admitting the evidence is greater than the prejudice to justice in excluding it: Rolley v. MacDonell 2018 ONSC 163 at para. 29 - 30. Although this is not, strictly speaking, the test spelled out in rule 53.08 which calls only for prejudice to the opposing party, I have nevertheless applied it in disposing of the motions before me.
15I concluded at trial that the report should not be admitted because it did not comply with rule 53.03, its admission would breach previous court directions, the prejudice to the plaintiffs in admitting the report was greater than the prejudice to Dr. Soni in excluding the report and because an adjournment was not appropriate.
A. The Proposed Report Does Not Comply with Rule 53.03
16The only statement in the March 24 report about Dr. Soni’s standard of care is:
“I have reviewed the ER records and am of the belief that Dr. Soni appropriately managed the care, including by obtaining appropriate antibiotic therapy, ordering fluids, ordering proper monitoring and advocating for the patient to be admitted.”
17This is a problematic, conclusory sentence in the context of this case. The amount and nature of the fluids Dr. Soni ordered for Ms. Reinoso and the degree to which Ms. Reinoso was monitored are critical and controversial issues in the trial.
18Rule 53.03(2.1).6 requires an expert to set out the reasons for his or her opinion in the report. The report contains no reasons to explain why the fluids that Dr. Soni ordered and monitoring she engaged in met the standard of care.
19A proper expert’s report would explain what Dr. Soni ordered by way of fluids, how she monitored and would explain how and why those specific steps met the standard of care.
20The conclusory statement quoted above, would leave it to Dr. Zoutman’s testimony to explain how or why he thought Dr. Soni met the standard of care. That causes the plaintiffs significant prejudice because they would not become aware of the reason for Dr. Zoutman’s opinion until he testified. The purpose of exchanging experts’ reports in advance is to avoid such surprise.
21The other point contained in the March 24 report is found at page 2 where Dr. Zoutman expresses the view that:
“It would not be reasonable to expect that Dr. Soni as a community Family Physician would be conversant with all of the prevailing and variable theories on the diagnosis and treatment of sepsis. … The evolving literature on sepsis is complex and anything but straightforward. It is far beyond the expected standard for a community Family Physician to keep pace with the very complex and at times contradictory literature that characterizes our attempts to understand the complex biological processes that constitute sepsis.”
22To demonstrate the point, Dr. Zoutman produced a timeline in the report which shows eight medical studies placed in chronological order. The studies are said to reflect changes in thinking about the definition of sepsis and other issues related to it. The relevant period in which to assess the standard of care in this case is December 2007 when Dr. Soni treated Ms. Reinoso. Five of the studies on Dr. Zoutman’s timeline were published in 2008 or later. Neither Dr. Zoutman’s report nor Dr. Soni’s counsel explained how those five studies could be relevant to the standard of care applicable in 2007.
23With respect to the three studies published before 2007, the report does not explain how the studies differed from each other or how they caused confusion for physicians like Dr. Soni.
24Here again, the report does not set out the reasons for its opinion as required by rule 53.03 (2.1).6 but states a conclusion. Once again, the report leaves the plaintiffs guessing about what it is in the three initial studies that Dr. Zoutman believes caused confusion for physicians.
25After setting out the timeline, Dr. Zoutman then provides what he refers to as “a very good example of the contradictory nature of sepsis clinical literature and treatment guidelines…”. The example relates to a drug marketed as Xigris. He describes the history of its use, a 2011 study leading to its withdrawal from the market and a 2012 study showing that it in fact had clinical benefits. No one suggested that the use or lack of use of Xigris was an issue in this action.
26I do not see how controversy about a drug that is not at issue in this case, which controversy arose after 2007, is relevant to whether Dr. Soni met the standard of care applicable in 2007.
27If Dr. Zoutman intended to explain in his testimony how these issues were relevant, the substance of that evidence should have been set out in the report.
28I should note that the plaintiffs’ case against Dr. Soni is not that she should have been aware of new, esoteric developments but that she failed to implement what was referred to at trial as the hospital’s “sepsis bundle”. The sepsis bundle is a decision tree prepared by the hospital that helped healthcare practitioners identify and treat sepsis. The plaintiffs’ primary allegation is that Ms. Reinoso met the criteria that triggered the bundle but that Dr. Soni did not implement the treatment it set out.
29As I read Dr. Zoutman’s report, it fails to comply with the requirements of rule 53.03 because it does not set out the reasons on which it is based. I can see no prejudice in refusing Dr. Soni leave to file an expert’s report that does not comply with the requirements of rule 53.03 or that deals with irrelevant issues.
B. Admitting the Report Breaches Previous Court Directions
30In assessing the respective prejudice to both parties, it is also relevant to consider the degree to which either party could have foreseen or avoided the issue they now face.
31Dr. Soni submits that it would be unfair to exclude the report because of the uncertainty about the scope of expert evidence before my rulings and reasons of March 10, 2019 and March 25, 2019. I do not agree.
32The exchange of expert reports in this action had been subject to previous judicial directions. The initial timetable was set on September 20, 2017. On November 2, 2018 Justice Firestone issued additional directions for a “further limited timetable.” Paragraph 1 of Justice Firestone’s direction allowed the defendant Dr. Daily to provide further expert reports on limited issues. Firestone J. ordered that such reports “shall be delivered no later than November 19, 2018.” In paragraph 2 of the same direction Justice Firestone noted that Doctors Sarabia, Soni, and Small had already delivered additional reports and that:
“There shall be no further reports served by them.”
33In case there could be any doubt about the issue, paragraph 5 of the direction states:
“There are to be no other expert reports delivered in this action.”1
34All counsel signed the direction.
35The extent to which an expert could opine on the standard of care provided by a defendant with a specialty different than the expert’s, was a live issue on the attendance before Firestone J. Paragraph 6 of his direction states:
“This is without prejudice to any of the parties raising any other arguments with respect to the scope of the testimony of the experts at trial.”
36When the parties attended before Firestone J., the plaintiffs had already served reports from experts who opined on defendants with practice areas different from that of the experts. The defendants objected and indicated they would pursue the issue at trial.
37Had the defence wanted to reserve the right to provide opinions from experts about physicians outside of the expert’s area of specialization, they could have done so. They could have asked Firestone J. for leave to file additional reports if their objection to the plaintiffs’ reports was over-ruled. They could have filed a supplementary set of reports in which their experts opined about defendants who practiced in areas of specialization different from those of the expert and explained that these supplementary reports would be relied on only if the defendants failed on their motion to restrict the scope of the plaintiffs’ experts’ evidence. The defendants did neither.
38The purpose of a timetable for the exchange of experts’ reports and the purpose of having counsel sign case directions like those issued by Firestone J. is to avoid trial by ambush. It cannot be in the interests of justice to allow Dr. Soni to ignore Justice Firestone’s timetable when she was fully aware of the issue but failed to protect herself against it. Dr. Soni could not but be fully aware of the issue about the scope of an expert’s permitted testimony because her own counsel had raised it.
C. Balance of Prejudice
39Prejudice to a party is very significant if the party is precluded from leading evidence relevant to a large component of their case: Rolley at para. 88.
40Excluding the report does not, however, deprive Dr. Soni of the ability to introduce expert evidence in her defence. She has already delivered two expert reports from Dr. David Austin. Dr. Austin has practiced emergency medicine for over 30 years, most of it at a community hospital similar to the one in which Dr. Soni practiced. Excluding the March 24 report would therefore not preclude Dr. Soni from leading evidence on any aspect of her case, let alone an essential aspect.
41There is nothing in the March 24 report that adds to any reasoned analysis about whether Dr. Soni met the standard of care expected of her.
42The prejudice to the plaintiffs if I admit the March 24 report is significant.
43As already noted, the report does not set out the reasons for its conclusions and therefore does not comply with rule 53.03. If Dr. Zoutman were permitted to explain his conclusions further in his testimony, that would occur only after the plaintiffs had closed their case. That would only exacerbate the prejudice. The plaintiffs are entitled to know all the reasons for the defence experts’ analysis before the plaintiffs begin putting in their case.
44Counsel for Dr. Soni relies heavily on the mandatory language of rule 53.08 and on cases that acknowledge that mandatory language: Robb v. St. Joseph’s Healthcare Centre [1999] O.J. 584 at para. 13; Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham 2000 CanLII 16946 (ON CA), [2000] O.J. No. 4428 at para. 81. However, the Court of Appeal has also warned lower courts of the danger of trial by ambush: Iannarella v. Corbett, 2015 ONCA 110 at para. 70. Admitting the March 24 report would allow trial by ambush because of the proposed report’s lack of reasons.
45I recognize that Rule 53.08 refers to leave being granted on such terms as are just including an adjournment if necessary. An adjournment does not, however, rectify the prejudice caused by a report that does not set out the reasons on which it is based.
46When Dr. Soni sought leave, the trial had already been underway for approximately one week. Plaintiffs’ counsel had already outlined their theory of the case to the jury in an opening address. The opening referred to the experts and the evidence they were expected to give. Late delivery of reports during a trial can interfere with the case theories parties have developed and require changes to those theories on the fly. That puts a party to significant prejudice, the precise extent of which will not be known until it is too late.2
47Adjournments cause disruption and delay. Disruption and delay tends to advantage defendants and disadvantage plaintiffs. If, as Dr. Soni submits, the test to apply is whether the prejudice to justice in admitting the evidence is greater than the prejudice to justice in excluding the evidence (Rolley at para. 29 - 30), it is also in the interests of justice that parties be held to court ordered timetables and that such timetables be varied only for good reason.
48Adjournments due to the late delivery of expert reports cause difficulties for the administration of justice. Some of the issues created by late delivery of expert reports are set out by Firestone J under the heading “Late Delivery of Expert Reports Must Stop” in Balasingham v. Desjardins Financial Security 2018 ONSC 1792 at paras. 7-15. Among other things, it disrupts trial scheduling and delays access to justice for those in the trial or motions queue; all because another party in the system has failed to abide by clearly established rules and court directions.
49Cases like Marchand, on which the defendants rely for the mandatory nature of rule 53.08, must be read in the light of the circumstances in which the court was dealing with the issue.
50In Marchand, the issue was whether a witness could send a letter immediately before trial that corrected an answer provided on discovery. In allowing the letter to be filed, the Court of Appeal noted that the witness was under a duty to correct discovery answers and that the witness could simply have corrected his discovery evidence either during his examination in chief or during cross-examination. Opposing counsel could of course cross-examine on such a change in evidence. But opposing counsel was also free to cross-examine on the letter delivered shortly before trial. Those circumstances raise a very different balancing exercise than the circumstances of this case. In Marchand, the party seeking to correct the answer was seeking to comply with the rules. In the present case, delivery of the March 24 report would breach the rules and breach the direction of Firestone J.
51As a result of the foregoing I decided at trial not to admit the proposed fifth report of Dr. Zoutman. Dr. Soni already had delivered a report from an Emergency Department specialist. Dr. Zoutman ‘s proposed report did not comply with the rules in that it did not set out the reasons on which it was based and would take the plaintiffs by surprise. I was satisfied that in the foregoing circumstances, the prejudice to the plaintiffs of admitting the report exceeded the prejudice to Dr. Soni of excluding it.
II. General Principles Applicable to the Objections
A. Introduction
52Throughout the course of the trial, a large number of objections arose concerning the ability of expert witnesses to testify beyond the contents of their reports. I ruled on all objections during the trial with short oral reasons. Given the prevalence of the issue at trial and what struck me as the very broad scope that the defendants Drs. Sarabia, Soni, and Small submitted experts had to testify beyond their reports, there were six objections in respect of which I indicated that I would provide more detailed written reasons.
53To set the stage, defence counsel3 took the view that the questions they proposed to ask of their experts were appropriate because they elicited evidence which, although not expressly stated in their reports, responded to what the plaintiffs’ experts testified to in chief or was latent in the defence experts’ reports. Defence counsel submitted that they were entitled to elicit evidence that was latent in their experts’ reports unless the evidence dealt with an entirely new field that was not addressed in their reports.
54Many of the submissions and much of my legal analysis are common to five of the six objections because they deal with the extent to which an expert can testify beyond the contents of his or her report. I will therefore deal with the overall submissions of the defendants and my overall analysis of the issue before addressing the individual objections. It will however help to have a flavour of the objections to better understand the analysis that follows. I will therefore set out the first objection in detail here. The other objections are conceptually similar in nature.
55The first objection concerns Dr. Zoutman, an expert retained by Dr. Sarabia.
56By way of background, on either December 13 or 14, 2007 Ms. Reinoso began receiving the antibiotic Ancef for her infection. On December 17, 2007 she came to the emergency department of the Credit Valley Hospital because of a reaction she was experiencing. On December 17, Dr. Small took Ms. Reinoso off Ancef and put her on a combination of Moxifloxacin and Vancomycin. Ms. Reinoso was instructed to follow up with the infectious disease clinic at the hospital on December 19 and did so. On December 19 she saw Dr. Sarabia who kept Ms. Reinoso on Moxifloxacin but removed her from Vancomycin. The principal allegation against Dr. Sarabia is that she took Ms. Reinoso off Vancomycin improperly.
57During examination in chief, counsel for Dr. Sarabia took Dr. Zoutman through a consultation note that Dr. Sarabia had prepared in connection with the December 19 visit. On numerous occasions, counsel asked Dr. Zoutman what the significance was of a particular comment in the consultation note. Dr. Zoutman’s reports did not refer to the significance of any of the comments he was asked about during his examination in chief.
58Plaintiffs’ counsel ultimately objected when Dr. Zoutman was asked about the significance of a notation by Dr. Sarabia that Ms. Reinoso reported no eye pain and reported that the swelling in her eye had reduced dramatically. Dr. Zoutman responded that both notations were “very important” and was about to explain how the decrease in swelling and the absence of eye pain justified Dr. Sarabia’s decision to take Ms. Reinoso off Vancomycin.
59The plaintiffs objected on the basis that Dr. Zoutman made no comments about decreased swelling, the absence of eye pain or their relation to the decision to take Ms. Reinoso off Vancomycin in any of his four reports.
60Dr. Zoutman refers to the consultation note in one of his reports and states that it demonstrates that Dr. Sarabia’s assessment was “complete, accurate and thorough.”
61The issue of swelling had been front and centre for Dr. Sarabia since Dr. Kumar delivered his reports. One of Dr. Kumar’s main criticisms of Dr. Sarabia’s assessment on December 19, 2007 is that she failed to consider that the decreased swelling Ms. Reinoso reported was attributable to the strong anti-inflammatory medications she had received on December 17, 2007 in response to the adverse reaction she was experiencing at that time.
62Dr. Kumar’s views about eye pain would appear to be less relevant to Dr. Sarabia and, if anything, potentially helpful to her. Dr. Kumar discusses eye pain in his reports in connection with Ms. Reinoso’s return to the hospital on Monday December 24, 2007 at which time Ms. Reinoso reported that she began experiencing eye pain on Sunday (December 23). According to Dr. Kumar, the development of eye pain indicated a worsening infection. The converse might be expected to be that the absence of eye pain indicated an infection that was not as advanced as an infection with eye pain.
B. The Root of the Issue
63The issue arises out of the proper interpretation and reconciliation of two rules.
64The first is Rule 53.03. It requires experts’ reports and responding reports to be delivered 90 and 60 days before the pretrial conference and requires any reply reports to be delivered 30 days before trial. In addition Rule 53.03(2.1) requires that an expert’s report “shall contain”:
“The expert’s reasons for his or her opinion, including,
i. a description of the factual assumptions on which the opinion is based,
ii. a description of any research conducted by the expert that led him or her to form the opinion, and
iii. a list of every document, if any, relied on by the expert in forming the opinion.” (Emphasis added).
65The second rule is Rule 53.08 which provides:
“If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.” (Emphasis added)
One of the instances referred to in rule 53.08 (2) is the failure to comply with rule 53.03 (3). Rule 53.03 (3) provides that an expert may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in a report served under rule 53.03.
66The defence relies heavily on the mandatory language of rule 53.08 (2) and on case law that interprets broadly, the extent to which experts may testify beyond the contents of their reports.
67The defence advances four arguments to admit the evidence:
(i) A defence expert is entitled to respond to the testimony of a plaintiff’s expert.
(ii) The proposed evidence is latent in Dr. Zoutman’s reports.
(iii) The evidence must be admitted under Rule 53.08.
(iv) Failing to admit the evidence would treat defence and plaintiffs’ experts inconsistently.
(i) Defence Ability to Respond to Plaintiffs’ Experts
68The defence analysis of the jurisprudence begins with Quantrill v. Alcan-Colony Contracting Co., (1978) 1978 CanLII 1310 (ON CA), 18 O.R. (2d) 333, a decision of the Ontario Court of Appeal which the defence submits stands for the general proposition that a defence expert may comment on the findings and opinions of the plaintiff’s expert, even though the defence expert has not outlined that testimony in his own report.4
69Quantrill must be read in its historical context. It was decided in 1977. At that time, the rules for the exchange of experts’ reports were quite different. Experts’ reports were not exchanged before trial but were exchanged at the commencement of trial: Holmestead and Watson, Ontario Civil Procedure; Commentary on the Rules of Civil Procedure rule 53 section 8 – Expert Witnesses: rule 53.03, page 10. The ability of a defence expert to respond to the evidence of a plaintiff’s expert even though the defence expert has not addressed the point in his or her report is understandably broader when experts’ reports are exchanged simultaneously at the beginning of trial than in a context then when they are exchanged sequentially at least 90 and 60 days before the pre-trial conference.
70The defence submits that the Court of Appeal upheld the Quantrill principle in Marchand in 2001 at paras. 121 and 123, many years after the rules had required the sequential exchange of reports. The effect of those two paragraphs in Marchand was to permit an expert during his examination in chief to testify about the evidence provided by an earlier expert.
71The defence uses this principle to justify their examination of Dr. Zoutman on the consultation report of Dr. Sarabia. The defence notes that the plaintiffs’ expert Dr. Kumar testified about the issue of decreased swelling and eye pain, as a result of which Dr. Zoutman should be able to respond to Dr. Kumar.
72The difficulty with this submission is that Dr. Kumar referred to the issue of decreased swelling and eye pain in his expert’s reports. Dr. Zoutman’s reports respond to Dr. Kumar but do not refer to either issue. Had Dr. Zoutman wanted to respond to the issues of decreased swelling or eye pain that Dr. Kumar raised, he should have done so in his reports.
73The defence position is essentially that that Quantrill and its affirmation in Marchand means that a defence expert can testify in chief about anything that a plaintiff’s expert testified to, even if the testimony of the plaintiff’s expert was contained in his report and the defence expert was silent on the issue in his responding report. I cannot accept that proposition.
74The defence position would denude of almost all utility those provisions of rule 53 that call for the exchange of reports 90 and 60 days before the pretrial conference and that require experts to list the reasons for their opinions in their reports. It would allow a defendant to deliver a skeletal expert’s report, but then have the expert testify in chief about all of the substance of the plaintiff’s expert’s testimony on the basis that Quantrill and Marchand allow a defence expert to respond to the testimony of a plaintiff’s expert. That would allow defendants to take plaintiffs entirely by surprise. It would force plaintiffs to trial without knowing the opinions of defence experts and without knowing the reasons for those opinions. That is trial by ambush.
75The reasons in Marchand simply state at para. 123 that:
“It is well-established that an expert witness can be asked to comment on the opinion of another expert.”
The specific manner in which that issue arose in Marchand is not clear from the reasons.
76I agree that there are circumstances in which it would be appropriate for defence experts to respond to the evidence of a plaintiff’s expert even though the defence experts had not included that information in their reports. By way of example, if a plaintiffs’ expert testified in chief to something that was not contained in his report, the defence should have an opportunity to respond. Similarly, if the plaintiffs’ expert gave evidence in cross-examination in response to questioning about something that he had stated in his report and to which the defence expert had responded in his report, the defence expert should also have a chance to respond to what the plaintiffs’ expert said on the stand. It is also common that evidence may develop at trial in a way that was not evident when the reports were written. Quantrill and Marchand rightly allow the defence expert to respond on the stand in those circumstances. There are no doubt other circumstances in which it would be appropriate to allow defence experts to testify to a point even if it is not contained in their reports.
77However, it cannot be the intention under the current rules to allow a defence expert to be silent in his report about a critical issue and spring that evidence on the plaintiff after the plaintiff has closed its case.
(ii) Latency
(a) Principles of Latency
78The argument on the objection about swelling and eye pain continued over two days. At the start of the second day, defence counsel submitted that it was not necessary to decide the objection on the basis of the first ground (the right to respond to the testimony in chief of a plaintiff’s expert) because Dr. Zoutman’s proposed additional evidence on the point was latent in his report.
79Defence counsel relied on the Ontario Court of Appeal decision in Thorogood v. Bowden (1978), 1978 CanLII 1367 (ON CA), 21 O.R. (2d) 385 for the meaning of latent. In Thorogood, the plaintiff’s medical expert submitted a report which stated that the plaintiff’s injuries would manifest themselves in more intensive symptoms later in life. At trial, the expert testified about the possibility of arthritis developing later in life and the possible need for an artificial hip in the future. The defendant objected on the basis that this evidence was not in the expert’s report. The Court of Appeal upheld the trial judge’s decision to allow the evidence saying:
“We interpret the law with respect to medical reports to be that a medical expert is not to be narrowly confined to the precise contents of his report, but has a right to explain and amplify. What was done here, in our view, with respect to the possibility of arthritis and a new hip joint, was to expand on what was latent in the medical report, and it did not open a new field. In our view, the trial judge properly concluded that that there was no prejudicial surprise here and, therefore, exercised his discretion and properly refused to declare a mistrial.”
80Defence counsel submitted that Dr. Zoutman’s proposed evidence falls within the Thorogood principle because it relates to the standard of care that Dr. Sarabia exercised when she saw Ms. Reinoso on December 19. In his report, Dr. Dr. Zoutman states that Dr. Sarabia met the standard of care. While the proposed evidence that would relate decreased swelling and the absence of eye pain to the removal of Vancomycin might provide further detail than is contained in Dr. Zoutman’s report, it does not open a new field because it is associated with the standard of care.
81To accede to the defence view of latency has the same effect as the defence’s first argument. It would allow the defence to file a bare-bones expert’s report which simply asserts that the defendant had met the standard of care and leave it to the expert’s trial testimony to explain the reasons for which the expert holds that view. This would rob the mandatory provisions of rule 53 of all effect and institute trial by ambush.
82Thorogood must be read in its historical context. It was decided in 1978. The rules did not require experts to state in their reports the reasons on which their opinions were based until 2010. One can see that a court may well take a broader view of latency in the context of rules that do not require experts to provide the reasons for their opinions than a court would take in a context where the rules require experts to state the reasons for their opinions in their reports.
83In my view, latency must be interpreted in a manner that is harmonious with the purpose of Rule 53.03 and the purpose of expert evidence.
84The purpose of rule 53.03 has alternately been described as:
(i) Facilitating “orderly trial preparation by providing opposing parties with adequate notice of opinion evidence to be adduced at trial”: Marchand at para. 38;
(ii) Avoiding trial by surprise: Holmestead and Watson at p. 10; and
(iii) Achieving “fairness to all parties well in advance of the trial so that each party knows the case it has to meet at trial”: Peller v. Ogilvie Harris 2018 ONSC 725 at para. 8.
85The requirement that experts’ reports be exchanged 90 and 60 days before the pretrial conference is critical to this purpose.
86The purpose of the 2010 amendments to require experts’ reports to state the reasons for their opinions was to ensure that experts clearly set out their opinions and the bases for them so that opposing counsel can easily understand the opinion and how it was arrived at: Hoang v. Vicentini, 2012 ONSC 1358 para. 11.
87Experts’ reports should not be a game of hide and seek. Both the opinion and its basis should be self-evident from reading the report:
“The rule is not complied with if after reading the statement of opinion, the court is left guessing about what the expert means.” (Peller, at para. 14).
“The opinion should not be something that the court has to “infer” from what the expert sets out in the report and it should not be something that the court is left guessing about. Not only must the opinion be clearly set out, the reasoning that led the expert to that particular opinion must be articulated in the report.” (Peller, at para. 19).
88The concept of latency must be interpreted in light of the text of rule 53.03. The text of the rule demands that experts set out the reasons for their opinions. The failure to do so is a breach of a mandatory rule; not an incidence of latency.
89Latency must also be interpreted in a manner that is harmonious with the nature and purpose of expert evidence.
90Experts, unlike other witnesses, are allowed to provide opinion evidence as opposed to being restricted to testifying about facts they observed. The point is significant because a litigant has a number of different ways of exploring the facts. These include interviewing witnesses, documentary production and examination for discovery. A litigant has no way of determining what is going on in an expert’s mind and cannot examine experts for discovery. A litigant therefore begins at a significant disadvantage when dealing with any expert.
91Rule 53.03 seeks to compensate for that disadvantage by requiring the exchange of reports in a timely manner and by requiring that the reports contain not only the expert’s conclusions and opinions but also the reasons for them.
92In addition, an expert is, by definition, someone with skill and knowledge that the trier of fact does not have and cannot acquire merely by listening to evidence. Topics on which expertise is admitted are often highly technical. Most expertise takes years of study and/or experience to acquire. As a result, expert evidence is an area in which a jury and a judge can easily be misled.
93One way of limiting the degree to which a judge or jury can be misled by expert evidence is to require early exchange of reports and to require that experts disclose the reasons underlying their opinions.
94In Peller the court suggested that the nature of the evidence might also affect the degree and specificity of disclosure that a court required when applying rule 53.03 to a particular case:
“In my view, cases of professional negligence which generally turn on the opinions of the experts retained by the parties, demand, perhaps more than other types of cases, compliance with the requirements of rule 53.03. That is so because of the technical nature of the medical evidence, which is not easily understood by someone untrained in the medical field.” (at para 18)
95The circumstances of this case militate towards a high level of disclosure and narrow view of latency.
96This is a medical malpractice case. It turned on technical scientific evidence of the defendant physicians and the medical experts. I am confident in saying that this was known to counsel at a very early stage. Each expert delivered several rounds of reports to which there were responses and counter responses over a period of two years.
97The specific issue at hand is the degree to which Ms. Reinoso’s report of a diminution in her swelling justified Dr. Sarabia in removing Vancomycin. One of Dr. Kumar’s principal attacks on Dr. Sarabia is that she did not take into account that the medications Ms. Reinoso received on December 17 would reduce swelling. Few, if any, jurors or judges would have any knowledge about that issue. They would rely entirely on their assessment of the defendant physicians and the medical experts.
98Neither the issue nor the importance of expert evidence on it would have come as a surprise to Dr. Zoutman or to Dr. Sarabia’s counsel. Any opinion Dr. Zoutman had on the point should have been front and centre in his report together with the reasons for it. It cannot be hidden behind a statement to the effect that Dr. Sarabia conducted a thorough examination and met the standard of care.
99The requirement that experts comply with the rules is not onerous. Counsel should be reading experts reports to ensure compliance. If a report contains a conclusory statement, counsel is perfectly entitled to (I would suggest is required to) remind the expert of the requirements of rule 53.03 and ask the expert to explain in his or her report the basis for the conclusory statement.
100The allegations against Dr. Sarabia are focused on her one attendance with Ms. Reinoso on December 19. Dr. Sarabia recorded that attendance in her consultation note. It is neither onerous nor cumbersome to have an expert walk through a single document in his report and explain each element of the document the expert believes supports the opinion that Dr. Sarabia met the appropriate standard of care. That is precisely what defence counsel tried to do during examination in chief. There is nothing so unusual in that approach that would make it inappropriate to require both expert and counsel to adhere to it when preparing or reviewing the report. I do not intend this as any criticism of trial counsel. I note that the individual lawyers acting for the defendants changed between the time experts’ reports were delivered and the commencement of trial.
101When an expert’s report is required to provide the reasons on which its conclusions are based, one way of interpreting latency is that it refers to something that, although not expressly stated in the report, has some degree of obviousness once it is expressly stated. Latency protects experts against the imperfect expression of ideas. It does not allow essential components of an opinion, like the constituent elements of a standard of care, to be buried under conclusory statements to the effect that a defendant was “thorough” or met the standard of care.
102The conclusory statement that Dr. Sarabia conducted a thorough examination or that she met the standard of care is not an imperfect expression of why a decrease in swelling justified the removal of Vancomycin. Similarly an explanation about how a decrease in swelling justified the removal of Vancomycin, does not render obvious that the statement about a thorough examination or meeting the standard of care was meant to refer to the portion of the consultation note that referred to a decrease in swelling. Conclusory statements of that sort could have been meant to refer to any one of many statements in her consultation note.
103It may also be relevant to consider any explanation the expert has for not explicitly including the point in his or her report. In some cases, the thought process an expert follows may lead them to believe that the reader would automatically understand what the expert was saying based on the way the expert expressed the idea in his or her report. I received no explanation from any of the experts in respect of whom the issue arose. The closest to an explanation was a statement by defence counsel to the effect that this is the way expert medical reports were written. The plaintiffs’ reports were not written that way. They were considerably longer than the defence reports and contained considerably more explanation about why and how the experts had come to the opinions they arrived at.
104The defence submits that to exclude the proposed evidence loses sight of the truth seeking function of a trial. I cannot agree.
105The Rules of Civil Procedure seek to operationalize the truth seeking function of the trial by, among other things, stipulating that experts’ reports be exchanged at pre-ordained times and that they contain the reasons on which they are based. As explained in paragraphs 89 to 93 above, departing from those requirements jeopardizes the truth seeking function of the trial; enforcing them does not.
106Defence counsel also submitted that an expert’s addition of new opinions or reasons in his or her testimony should be a matter for cross-examination rather than for the exclusion of evidence. I cannot agree with that approach, particularly not in a jury trial.
107To begin with, that approach does not remove the element of surprise to an opponent. In addition, jurors are likely not as sensitive to the significance of omitting something from a report that they never get to see as judges are. Finally, it is harder for jurors to recall what was or what was not contained in a particular expert’s report after a long trial than it is for a judge. Jurors’ notes, if they take notes at all, tend not to be as detailed as judges’ notes, particularly not about evidentiary points like whether an expert included a particular reason in his or her report. Judges have access to recordings of evidence and often to trial transcripts to refresh their memories. Jurors do not.
108For the reasons set out above I concluded that whatever views Dr. Zoutman may have about the absence of swelling or eye pain are not latent in the statements in his report to the effect that Dr. Sarabia conducted a thorough examination and that she met the standard of care. Allowing the evidence would not protect an expert against imperfect expression but would allow the requirements of rule 53.03 to be avoided. There is no degree of obviousness between the statement that the examination was thorough and that Dr. Sarabia met the standard of care on the one hand and Dr. Zoutman’s views about significance of the absence of swelling or eye pain on the other hand. Allowing a party to be taken by surprise like this at trial impedes the truth seeking function of the trial and creates a serious risk of a miscarriage of justice.
(b) Defence Latency Cases After 2010
109Counsel for Dr. Sarabia took me to a number of cases which they submit stand for a broader reading of latency than I have articulated above, even after the rule changes in 2010. All are distinguishable.
110Defence counsel submitted that Moore v. Getahun, 2014 ONSC 237 at para. 69 stands for the proposition that latency should be interpreted in a “robust and practical fashion”.
111In Moore, the issue was whether counsel could explore with experts the facts as they evolved at trial, even if not specifically referred to by the expert in his or her report. I take no issue with that proposition. That, however, is not the issue before me. The proposed testimony from Dr. Zoutman did not respond to evidence that had evolved at trial. It addressed an issue that had been known at least since Dr. Kumar delivered his reports.
112In Lee v. Toronto District School Board, 2012 ONSC 3266 the court relied on Thorogood for its interpretation of latency. According to the defence, this demonstrated that latency as described in Thorogood remained unchanged despite intervening changes to the rules.
113I read Lee quite differently. Lee was not a case in which an expert was trying to testify about something not found contained in his report but about a party who wanted to prevent an expert from testifying about what was in his report.
114In Lee, a seven-year-old plaintiff suffered a brain hemorrhage. The plaintiff alleged the brain hemorrhage was the result of a punch to the head from a classmate. The defence expert filed a report stating that the hemorrhage was spontaneous and was the result of a condition from which the plaintiff suffered, the most common presentation of which was brain hemorrhage. The report estimated the risk of hemorrhage at 1-4% per year. The plaintiff’s medical expert accepted the hemorrhage risk of 1- 4%.
115The plaintiff’s damages expert admitted on cross-examination that he had not taken the 1-4% hemorrhage risk into account. When that risk was amortized over the plaintiff’s life, it reduced damages substantially.
116The plaintiffs objected to the defence medical expert being examined about the risk of bleeding. The plaintiff argued that, when the defence medical expert referred to the risk of bleeding in his report, he did so in relation to causation. The defence was now using the hemorrhage rate in relation to damages which caught the plaintiff by surprise.
117The trial judge overruled the objection. The Court of Appeal upheld the ruling.
118The defence expert was not using the evidence to diminish the plaintiff’s damages. It was the plaintiff’s own damages expert that was led into that admission during cross-examination. The fact that an articulated reason for an opinion might have a second purpose beyond the one for which it was originally articulated does not preclude its use for a second purpose. It is often the case that evidence is led for one purpose but then also turns out to be useful for another. There was nothing buried about the risk of hemorrhage. Risk of bleeding was clearly articulated in the defence expert’s original report.
119Rolley v. McDonnell 2018 ONSC 163 provides a good recent example of latency. In that case, the plaintiff’s occupational therapist filed a report indicating that the plaintiff required 4.22 hours per day or 29 hours per week of care. At trial, the occupational therapist proposed to testify that the plaintiff required care, not in a single discrete block of 4.22 hours but intermittently between the time he got up at 6:30 a.m. and went to bed at 10 p.m.
120The defence objected arguing that this was not in the report. The court allowed the evidence.
121The report made clear that the plaintiff’s care needs were spread throughout the day and could be met in one continuous block of 4.22 hours each day. By way of example, the report stated that the plaintiff required help dressing and undressing. Those activities occur at the beginning and end of each day. The report also noted that the plaintiff required 60 minutes of assistance for meal preparation. That too would not occur in one continuous block. It was also clear that meal preparation could not occur at the same time as other things for which the plaintiff required care such as picking up medication or cueing the plaintiff on home renovation tasks.
122In Kilitzoglou v. Cure et al. 2012 ONSC 3411 the issue was whether the payment of a dividend violated section 38 of the Ontario Business Corporations Act which prohibits directors from declaring a dividend if the realizable value of the corporation’s assets would thereby be less than the aggregate of its liabilities and its stated capital of all classes. The expert had not expressly stated in his report whether a dividend satisfied the requirements of section 38 and wished to so on the stand.
123The court allowed the evidence. The reports contained a detailed recitation of what is required to meet the requirements of section 38. The report noted that the book value of the Corporation’s assets exceeded its liabilities by approximately $200,000; and that if realizable value corresponded to book value, then the dividend would not contravene the Act. The report went on, however, to state that the recorded asset values may be questionable, that book value does not correspond to market value and that market value is usually less than book value. The trial judge read the report as stating that the expert was skeptical about whether the requirements of section 38 were met. In those circumstances, the trial judge found that testifying that the requirements were not met was latent in the underlying facts and opinions stated in the report.
124Both Rolley and Kilitzoglou involve situations of imperfect expression. In both cases once the point is stated expressly, it is obvious that this is what the report was saying.
(iii) Should the Evidence Be Admitted under Rule 53.08?
125If I did not find the concept of swelling or eye pain to be latent in Dr. Zoutman’s report, the defence submits that I am bound to admit the evidence in any event under rule 53.08 the provisions of which I repeat here for convenience:
53.08 (1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial. O. Reg. 284/01, s. 13. (emphasis added)
(2) Subrule (1) applies with respect to the following provisions:
- Subrule 53.03 (3) (failure to serve expert’s report).
126The defence puts great weight on the mandatory nature of language I have bolded in the immediately preceding quotation. The defence submits that the mandatory direction to grant leave recognizes that the exclusion of evidence interferes with the truth seeking function of a trial.
127I do not read rule 53.08 as broadly as the defendants do. The defence interpretation places excessive weight on the mandatory language to admit the evidence and gives inadequate weight to the concept of prejudice to the opposite party.
128Rule 53.08 should also be read in a manner that is harmonious with the requirements of Rule 53.03. In saying that I appreciate that, at first blush the statement may appear contradictory because rule 53.08 is an exception to rule 53.03. Admission under rule 53.08 is, however, intended to be the exception, not the norm. Nor is it intended to be a common exception. Rule 53.08 is not intended to be a vehicle by which one can avoid the obligations of rule 53.03.
129If one element for leave is, as the defendants submit, the balance of prejudice in accordance with paras. 29 – 30 of Rolley, then one way of reading the two rules harmoniously is to require the party seeking leave to explain why the evidence was not contained in the report. If, for example, the party seeking leave made a tactical decision to hide the information in the hopes of taking their opponent by surprise, then any prejudice they may suffer by being denied leave is not worthy of court protection.
130If no explanation is required, the court is simply incentivizing parties to file skeletal experts’ reports before trial and disclose the reasons for their opinions at some later point. As noted in paragraph 103 above, I received no such explanation.
(a) The Balance of Prejudice
131Dr. Sarabia submits that the proposed testimony cannot cause prejudice to the plaintiffs because Dr. Kumar referred to decreased swelling and eye pain in his reports. As a result, the plaintiffs cannot be taken by surprise. This misses the point. The surprise to the plaintiffs is not the issue of swelling as such, but is whether Dr. Zoutman would be testifying about it and if so, what he would say about it.
132Dr. Kumar had put swelling front and centre in his reports as a basis for criticizing Dr. Sarabia. Dr. Zoutman responded to Dr. Kumar’s reports but remained silent about swelling. In those circumstances, plaintiffs’ counsel could reasonably expect that Dr. Zoutman would not address swelling at trial.
133Admission of Dr. Zoutman’s proposed evidence would prejudice the plaintiffs in several ways.
134Dr. Kumar had filed three reports and had been cross-examined on them before Dr. Zoutman testified. His evidence on the point was locked in. Had Dr. Kumar been made aware of Dr. Zoutman’s proposed testimony he could have responded to it in a report with the luxury of time. If Dr. Kumar is now forced to respond to the new evidence by way of reply, he is forced to do that without the benefit of the time that the rules and the orders of Justice Firestone had given him. Time is significant when dealing with issues that benefit from research and consideration. It is also significant in the context of medical experts who tend to have more than full time commitments at universities, hospitals or private practices. The issue is exacerbated because plaintiffs’ counsel would not have the same amount of time to instruct Dr. Kumar and review any draft reports as they would otherwise have because they would be providing such instructions and conducting such review at the same time as they are fully engaged in the trial.
135The plaintiffs had also completed their cross-examinations of the defendants before Dr. Zoutman testified. One can expect that the cross-examination the plaintiffs conducted of Dr. Sarabia or other defendants about swelling would have been informed, at least in part, by the evidence they could reasonably expect Dr. Zoutman to give on the point as reflected in his reports. Had plaintiffs’ counsel known before trial what Dr. Zoutman would say about swelling, they would have had the opportunity to try to obtain admissions from Dr. Sarabia or other defendants to undermine or qualify Dr. Zoutman’s testimony. They have now been deprived of that opportunity.
136Finally, plaintiffs’ counsel is hampered in its ability to cross-examine Dr. Zoutman effectively when they are learning about his opinions for the first time during his testimony. Effective cross-examination of an expert requires time. Counsel must have the time to reflect on the opinion, research the issue and confer with their own experts. Learning about an expert’s opinions and the reasons for them at trial jeopardizes that ability.
137The defence relies on the oft quoted statement of Justice Quinn in Auto Workers Village (St. Catharines) Ltd. v. Blaney, McMurtry, Stapells, Friedman (1997), 14 C.P.C. (4th) 152 (Ont. Gen. Div.) to the effect that:
“In my view, it should be remembered that any time a court excludes relevant evidence the court’s ability to reach a just verdict is compromised. Relevant evidence should not be excluded on technical grounds, such as lack of timely delivery of a report, unless the court is satisfied that the prejudice to justice involved in receiving the evidence exceeds the prejudice to justice involved in excluding it.”
138I agree that courts must be cautious when deciding to exclude evidence. They should avoid doing so on technical grounds. In Auto Workers, however, the court excluded the evidence.
139The characterization of timely delivery of an experts’ report as technical or substantive depends on the overall circumstances in which the characterization is made. I note that when Auto Workers was decided in 1997, the Rules required that expert reports be exchanged 10 days before trial. The degree of prejudice to a party of receiving new evidence at trial is less in the context of rules that require a simultaneous exchange of expert reports 10 days before trial than it is in the context of rules that require consecutive exchange of experts reports at least 90 or 60 days before the pretrial. In addition, the Rules in 1997 did not require that experts’ reports contain the reasons on which they were based.
140Whether the lack of timely delivery is a “technical” matter in view of the current requirements of the Rules depends on the circumstances of the case. A one-day delay in delivery is likely to be “technical”. I would not, however, characterize as “technical” the failure to comply with the requirement that an expert set out in the report the reasons for his or her opinion, the requirement that reports be exchanged 90 and 60 days before the pretrial or the requirements of Justice Firestone’s orders concerning the delivery of expert reports set out in paragraphs 32 and 33 above; all in the absence of any explanation.
(b) Would the Prejudice Be Remedied by an Adjournment?
141An adjournment would not remedy the prejudice to the plaintiffs. The prejudice lies in the fact that the plaintiffs had developed, framed and presented their case to the jury based on a certain set of assumptions. The defendant should not be able to force the plaintiffs to respond to a new set of assumptions late in the day. Permitting Dr. Zoutman to testify may well lead Dr. Kumar to introduce new evidence on the point of swelling. It would then be open to defence counsel to try to characterize that new evidence as departing from what Dr. Kumar had already said. That would open a whole new area of needless complication.
142An adjournment would also cause undue delay within the meaning of rule 53.08.
143The Oxford online dictionary defines “undue” as meaning:
“Unwarranted or inappropriate because excessive or disproportionate.”
144Inherent in the concept of “undue” is the need to assess the delay in light of the reason causing it and in light its potential consequences.
145As noted, the reason for any proposed delay is the failure of Dr. Sarabia’s expert to abide by the rules. No explanation for that failure has been provided.
146A potential consequence of an adjournment is a mistrial. This is a jury trial. At the outset of the trial the jury was told that it would last six weeks. By the time these issues arose, the trial was scheduled to last 13 weeks. That would have seen the evidence finish on June 13. We were already behind on that schedule. An adjournment would delay matters further. Delay of this sort in a jury trial and the further delay required by an adjournment would create the serious risk of losing jurors and having to declare a mistrial, especially as we approached the summer holidays.
147A further consequence against which to determine whether any delay is undue is the effect on the administration of justice as a whole. Trial delays affect not only the parties before the court but parties who are awaiting trial: Balasingham v. Desjardins Financial Security 2018 ONSC 1792 at paras. 7-15. Trials that run longer than expected delay the ability of those awaiting trial to have their cases heard. There are often good reasons for such delays. To some extent, delays are a necessary part of a legal system that seeks to be just. Justice requires a degree of flexibility, not the mindless adherence to black letter rules or calendars. At the same time, however, judges must do what they can to avoid such delays without compromising justice.
148In my view, an adjournment required because a party failed, without good reason, to abide by the requirements of rule 53.03, which delay increases the risk of mistrial and which delay further postpones access to justice for those awaiting trial would render undue any delay in the current trial.
149The ability of Dr. Zoutman to testify about swelling and eye pain was entirely in his control and in the control of defence counsel. It is far more just to impose the consequences of any such failure on the defence than it is to impose the consequences on the plaintiffs or others who are awaiting trial.
(iv) Alleged Inconsistency in Approach
150The defence submits that I have treated the plaintiffs’ and defendants’ experts inconsistently in my rulings because, in certain instances, I permitted the plaintiffs’ experts to testify beyond their reports but did not permit defence experts to do so.
151While there are general principles that apply to experts’ reports, each objection to an expert testifying beyond his report must be taken individually and a ruling made based on the circumstances applicable to the specific objection at hand.
152In following that approach, I on occasion allowed both the plaintiffs’ and the defendants’ experts to testify beyond their reports. It is, however, not a matter of “keeping score”. The simple fact that the plaintiffs’ experts may have been allowed to testify beyond their reports more frequently than the defendants’ experts (if that is in fact the case) does not mean that there has been an inconsistency in approach.
153That said, the concept of prejudice to the opposing party under rule 53.08 can conceivably result in different rulings between plaintiff and defendant depending on the circumstances. If, for example, a plaintiff’s expert is testifying early in the trial, early in his examination in chief on a point that is not critical to the case, the defendant may have ample time to consult his experts to prepare a cross-examination on the point and to consult his experts so that the defence can rebut the point during the defence expert’s examination in chief. That may mean that the defendant is put to no prejudice. A plaintiff who is the recipient of a similar set of circumstances may, however, suffer prejudice because he has locked in his position, closed his case and perhaps been deprived of the opportunity to cross-examine other defence witnesses to undermine the defence expert’s new evidence.
154This is not to suggest that there is one rule for plaintiffs’ experts and another for defence experts. I merely point out that assessing prejudice with respect to a particular objection requires an assessment of all the circumstances relevant to that particular objection.
155More specifically, the defendants raised three examples of alleged inconsistency in approach.
156First, the defence submits that Dr. Kumar never commented on the significance of pain in his reports but testified about it in chief. If Dr. Kumar was allowed to testify about pain in ways that went beyond his report, so should Dr. Zoutman.
157I do not see this as an inconsistency. As noted in paragraph 62 above, Dr. Kumar did refer to eye pain in his reports in when describing notes made by Dr. Soni in which she records that eye pain began on December 23. It is true that Dr. Kumar did not say in his reports as he did on the stand that the emergence of eye pain on December 23 indicated that the infection was getting worse. It is important to note though that (i) the defence did not object to the evidence elicited from Dr. Kumar about eye pain; and (ii) Dr. Kumar made those comments in relation to the standard of care owed by Dr. Soni. His evidence had nothing to do with Dr. Sarabia.
158Given Dr. Kumar’s testimony about eye pain, it would have been appropriate for Dr. Soni’s expert to testify about eye pain even if he had not referred to it in his report. That would be responding to evidence from Dr. Kumar at trial which went beyond his reports. However, a defendant should not be able to use her failure to object if the plaintiffs’ expert testifies beyond his reports about one issue (the standard of care applicable to Dr. Soni) and then take the position that this gives defence experts free reign to testify beyond their own reports on another issue (the standard of care applicable to Dr. Sarabia).
159The second example of what the defence submits is an inconsistency in approach arose during Dr. Kumar’s examination in chief when he was asked about the extent to which a physician who had transferred a patient to another physician should nevertheless communicate with the transferee physician after the transfer. Mr. Mogil objected because Dr. Kumar did not expressly address that issue in any of his reports. I overruled the objection.
160I do not see this as an inconsistency in approach but as the proper application of latency in a manner that is consistent with the principles articulated earlier in these reasons.
161The objection arose in the following circumstances: Dr. Soni was Ms. Reinoso’s attending physician in the emergency room on December 24, 2007. Dr. Soni transferred Ms. Reinoso to Dr. Daily at approximately 11:30 AM on December 24, as a result of which he became Ms. Reinoso’s Most Responsible Physician. Dr. Daily had told Dr. Soni before the transfer that he could not see Ms. Reinoso until the end of the day. Ms. Reinoso remained physically in the emergency department until approximately 10 PM on December 24. The gist of the question was whether Dr. Soni should have had any further discussions with Dr. Daily after she had formally transferred the patient to him.
162In his report of April 11, 2018, Dr. Kumar addresses Dr. Soni’s communication with Dr. Daily and finds that it fell below the standard of care because she had allegedly failed to give Dr. Daily all relevant information. In explaining his opinion, Dr. Kumar notes Dr. Daily’s discovery evidence to the effect that that Dr. Soni had not told him things that he wished he had known and which, had he known them, would have led him to refuse to become Ms. Reinoso’s Most Responsible Physician.
163After setting out some of this background Dr. Kumar’s report states:
“…Dr. Soni did not explain to Dr. Daily that the condition of the patient was such that it would be dangerous to wait until the conclusion of the clinic, to be seen by Dr. Daily....
From the time Dr. Soni obtained Dr. Daily’s agreement to admit Ms. Cheeseman under his care, there is no indication that Dr. Soni attended to reassess or monitor Ms. Cheeseman’s condition, although she was aware that Dr. Daily would not be attending until the conclusion of his eye clinic....
“Given that [Dr. Soni] failed to appreciate the severity of Ms. Cheeseman’s condition (as it relates to sepsis), she then naturally very likely fails to properly report the patient’s condition to the doctors she consulted.... Dr. Soni’s failure to correctly diagnose the patient with sepsis, directly contributed to a lack of proper information being provided to the consulting physicians, thus further delaying the institution of proper medical treatment.
Based on Dr. Daley’s discovery transcript, had Dr. Daily been advised that the patient was septic and unstable, he would not have accepted her as a patient.... A patient whose vital signs were quite abnormal does not belong in the care of an ophthalmologist.”
164Ms. Reinoso’s medical chart shows that, after the 11:30 transfer to Dr. Daily and while Dr. Soni remained on shift in the emergency department, certain of Ms. Reinoso’s vital signs became even more unstable.
165The obligation to communicate a further deterioration of Ms. Reinoso’s condition to Dr. Daily is latent in the opinion that Dr. Soni was negligent by failing to communicate earlier, less serious information.
166This is a case of imperfect expression. If Dr. Kumar believes that Dr. Soni had a duty to tell Dr. Daily about Ms. Reinoso’s instability at 11:30, it is obvious that Dr. Kumar would believe that Dr. Soni had a duty to tell Dr. Daily about further deterioration in Ms. Reinoso’s stability after 11:30. Especially given that Dr. Kumar says in his report that Ms. Reinoso’s condition at 11:30 was such that it was dangerous to wait for Dr. Daily to see Ms. Reinoso at the end of the day.
167Third, Mr. Mogil submits that I applied the standards about experts testifying beyond their reports unevenly because I allowed Dr. Kumar to testify that the general rate of methicillin-resistant staphylococcus aureus (“MRSA”) infections in the greater Toronto area was approximately 20% in 2007 when he made no such statement in his reports. The issue is relevant because Dr. Kumar’s view was that Ms. Reinoso most likely suffered from an MRSA infection. The issue was relevant to the action because the Vancomycin that Dr. Sarabia removed from Ms. Reinoso was effective against MRSA while the Moxifloxacin on which Dr. Sarabia kept Ms. Reinoso, was not.
168The short answer to the objection is that it caused the defendants no prejudice. While I was not aware of it at the time the objection was raised, Dr. Sarabia had co-authored a journal article which was submitted for publication in June 2008 and which stated that the incidence of MRSA in the greater Toronto area was 19%. That evidence emerged during Dr. Sarabia’s cross-examination. Since Dr. Kumar’s evidence was consistent with Dr. Sarabia’s paper, she could not have been taken by surprise.
169When the objection was argued I was aware that Dr. Kumar had spoken at length in his reports about the risk of MRSA infections and the need to take MRSA bacteria into account.
170I was also made aware during argument on the objection that Dr. Sarabia had testified about the incidence of MRSA infections during her examination for discovery. That information was available to Dr. Kumar. Had he wanted to respond to it, he should, in a perfect world, have done so in his reports. That said, it might be unrealistic to expect experts to notice and respond to every single detail in a discovery transcript.
171Plaintiffs’ counsel submitted that if Dr. Sarabia was going to provide evidence about the incidence of MRSA infections at trial, the plaintiffs needed the opportunity to respond through Dr. Kumar. Defence counsel declined to indicate whether Dr. Sarabia would be giving such evidence. If Dr. Sarabia did give such evidence, then the plaintiffs’ ability to respond would be in reply. If anything, that would put the defendants to greater prejudice. If the plaintiffs introduced evidence about the incidence of MRSA in reply, the defendants would have no opportunity to rebut that evidence. By having Dr. Kumar provide that evidence in chief, the defendants at least had time to rebut it. The defendants had not commenced any cross-examinations or called any witnesses themselves and had therefore not locked themselves into any particular positions.
172Finally, although not noted in the oral reasons I gave at the time, two of the defendants were infectious disease specialists. The defendants had two experts who were infectious disease specialists. Dr. Kumar was the plaintiffs’ first witness. Given that the defence had access to four infectious disease specialists and given that data tracking methicillin resistance in specific geographic areas is publicly available, I did not see any prejudice to the defendants.
III. The Specific Objections
(i) Swelling and Eye Pain
173The specific objection concerning Dr. Zoutman’s evidence about swelling and eye pain is dealt with in Part II of these reasons and will not be repeated here.
(ii) Step down theory
174On May 16, 2019 an issue arose with respect to Dr. Zoutman’s testimony concerning the overuse of antibiotics.
175In his fourth report dated November 1, 2018 Dr. Zoutman stated:
“We must be ever cognizant that the indiscriminate overuse of antibiotics has been well proven to select increasing bacterial resistance. The overall threat to public health of bacterial resistance is very significant.”
176During his evidence on May 16, 2019 Dr. Zoutman stated:
“Well, we all know that antibiotics are widely overused and over-prescribed and given for durations that are excessive. And it is a principle of the good practice of infectious diseases to evaluate your patient and then - we call it step down. In other words, you look at the antibiotics they’re on and say, “Do I need all of this, and can I step down to other forms of therapy?”
Particularly, we like to get people off the intravenous antibiotics first because having an intravenous carries a risk unto itself. The intravenous line can become infected or bleed or clot. Then, we look at what antibiotics the patient is on. If there’s good oral antibiotics, we then like to go with the oral antibiotics if we can because it’s easier for the patient. (At page 78 – 79 of transcript)
And she would be stepped down, which is an important principle in the practice of infectious disease medicine (at page 89).
177In the foregoing answer Dr. Zoutman referred to: (i) the step down principle; (ii) noted that it is an important principle in the practice of infectious disease medicine; (iii) expressed concern about infection; (iv) expressed concern about bleeding; and (v) expressed concern about clotting. Dr. Zoutman offered these five points as reasons for which it was appropriate for Dr. Sarabia to take Ms. Reinoso off Vancomycin. None of these reasons are contained in his reports.
178Mr. Mogil submits on behalf of Dr. Sarabia that the thrust of Dr. Zoutman’s report is to highlight a significant public health concern with respect to bacterial resistance, that Dr. Zoutman’s evidence is latent in the passage of his report quoted in paragraph 175 above and that any difference between that passage in the report and Dr. Zoutman’s viva voce evidence is “word smithing”.
(a) Is the Testimony Latent in Dr. Zoutman’s Report?
179I do not agree that the evidence is latent in Dr. Zoutman’s report. While the report identifies the “indiscriminate overuse of antibiotics” as a significant public health threat, Dr. Zoutman’s evidence at trial takes this much further. At trial he describes the concern as leading to the “step down” principle which he describes as “an important principle in the practice of infectious disease medicine” and adds concerns about infection, bleeding and clotting.
180Describing step down as an important principle, elevates the concept in the minds of the jury to a core concept in the practice of medicine. To me this is not a matter of “word smithing”. There is a difference between indiscriminately overusing antibiotics on the one hand and step down as an important principle in infectious disease medicine on the other.
181Indiscriminate overuse suggests that physicians should apply a level of restraint when deciding to prescribe antibiotics. That would have applied to Dr. Small’s decision to put Ms. Reinoso on Vancomycin on December 17, 2007. The step down principle refers to a continuing process by which a patient is evaluated and reassessed during the course of the administration of a particular antibiotic to determine whether to withdraw a particular medication before it has run its course. The medical analysis brought to each of those two questions could be very different.
182This is not a case of imperfect expression. Once one is aware of the step down principle and the risks of infection, bleeding and clotting one could not say that it was obvious that indiscriminate overuse of antibiotics is meant to refer to them.
(b) Should the Testimony Be Admitted under Rule 53.08?
183I did not grant leave under rule 53.08 because the plaintiffs would be prejudiced by admitting the evidence more than the defendants would be by excluding it.
184If step down is a “very important principle” one could expect to see literature about it which would describe the source of the principle, the considerations that go into its application and the limitations on its application. If there is no literature, that may be relevant to whether it is in fact a very important principle of infectious disease medicine.
185The failure to refer to these reasons in Dr. Zoutman’s reports has prejudiced the plaintiffs for the reasons set out in paragraphs 134 to 136 above. It has precluded the plaintiffs from having their experts address the points, precluded plaintiffs’ counsel and their experts from delving into the literature on the points, and has precluded plaintiffs’ counsel from cross-examining Dr. Sarabia on whether she considered the points and, if so, whether she did so in a manner consistent with the literature.
186It is not a particularly onerous requirement to expect an expert to refer in his reports to the “very important principles” that are supposed to animate the analysis of an infectious disease specialist like Dr. Sarabia or which inform the views of an infectious disease expert like Dr. Zoutman.
187An adjournment to allow the plaintiffs to address the issue does not address the prejudice caused by the inability to cross-examine Drs. Small and Sarabia and is not in any event appropriate for the reasons set out in in paragraphs 141-149 above.
188Re-calling Drs. Sarabia and Small for such cross-examination is no solution. Apart from the delay it would cause to the trial, both Drs. Sarabia and Small had completed their evidence and had been free for several weeks to discuss the case with counsel, other defendants or other people generally, something they could not have none while still under cross-examination.
(iii) Skin Biopsy Report
189Some short background is necessary to set the context for this objection.
190After going into organ failure on December 25, 2007, Ms. Reinoso began to suffer from purpura fulminans. Purpura fulminans is gangrene like infection in which human tissue in the extremities turns purplish and dies. It is caused by blood clots which prevent circulation to the extremities such as hands and feet. In Ms. Reinoso’s case, it required her fingers and both forefeet to be amputated.
191The plaintiffs’ theory was that Ms. Reinoso’s purpura fulminans was caused by one or both of septic shock and the vasopressor medications she received to revive her, both of which can cause clotting in the extremities.
192Dr. Zoutman’s theory was that the purpura fulminans from which Ms. Reinoso suffered was idiopathic, that is to say, its cause was unknown.
193While examining Dr. Zoutman in chief on May 16, 2019, Ms. Lewis proposed to take him to a skin biopsy report, Exhibit AA, and have him explain how the skin biopsy demonstrated that Ms. Reinoso had idiopathic purpura fulminans. Plaintiffs’ counsel objected. I sustained the objection.
194The proposed testimony would have used Exhibit AA as a reason for which Dr. Zoutman opined that Ms. Reinoso suffered from idiopathic purpura fulminans. Exhibit AA is not referred to in Dr. Zoutman’s reports nor do the reports contain any explanation about how the skin biopsies demonstrate that Ms. Reinoso’s purpura fulminans was idiopathic in nature.
(a) Is the Testimony Latent in Dr. Zoutman’s Report?
195Ms. Lewis submits that the evidence she proposed to elicit from Dr. Zoutman was latent in the sentence “Skin biopsies are taken” in Dr. Zoutman’s first report dated January 26, 2016. The sentence arises in the following paragraph of that report:
On December 26 at 0035 hours Mrs. Cheesman was intubated and placed on a ventilator. She is noted to have a progressive rash over her entire body that has features of purpura fulminans, as well as petechiae. Skin biopsies are taken.
196Ms. Lewis also referred to the following passage in Dr. Zoutman’s report of May 4, 2017 as allegedly referring to the skin biopsy:
Protein C, protein S, and antithrombin III play a critical role in controlling blood clotting, which if decreased leads to thrombosis of the blood vessels of the skin causing the extensive necrosis of the soft tissues that Mrs. Cheesman suffered from.
197This latter paragraph does not, on its face, relate to Exhibit AA. Defence counsel did not explain any connection between this passage and the skin biopsy. Mr. Mogil and Ms. Lewis conceded in argument that they themselves could not explain what the terms on Exhibit AA meant. Nor did they seek a voir dire to demonstrate any connection between the skin biopsy and the two passages from Dr. Zoutman’s reports.
198I do not accept that Exhibit AA is somehow latent in the reference to the fact that skin biopsies were taken or to the additional passage from Dr. Zoutman’s report quoted in paragraph 196 above.
199Having been made aware of Exhibit AA one could not say that it was obvious that the quotations in paragraphs 195 and 196 refer to the fact that Ms. Reinoso’s purpura fulminans was idiopathic in nature. Even if the reference to skin biopsies being taken led someone to Exhibit AA, that exhibit refers to septic shock and purpura fulminans but does not, on its face, indicate that the purpura fulminans is idiopathic in nature.
200Given that Exhibit AA does not refer to idiopathic purpura fulminans, any link from Exhibit AA to purpura fulminans would be a matter of opinion. This is not a matter of referring to a medical record which contains a fact which might conceivably be subject to a lower standard of disclosure. I note that defence counsel did not purport to characterize Dr. Zoutman’s reference to Exhibit AA as providing testimony about facts.
(b) Should the Testimony Be Admitted under Rule 53.08?
201The defendants reject the plaintiffs’ submission that the proposed evidence takes them by surprise. The defence submits that Dr. Kumar addressed skin biopsy issues in his report of September 27, 2018. In that report, Dr. Kumar responds to, among other things, Dr. Zoutman’s report of January 26, 2016 and states:
“As documented in the patient notes (8-00055), both the ID physician and the dermatologist agreed that the skin biopsy was consistent with infectious purpura fulminans (biopsy does not distinguish between causes of purpura fulminans; it only confirms that purpura fulminans whether infectious or non-infectious is present).”
202Mr. Mogil submits that this makes it clear that Dr. Kumar was aware of the issue and that the plaintiffs had ample opportunity to examine him in chief on the point. I do not agree.
203What seems clear from Dr. Kumar’s report is that he does not see how the skin biopsy can establish idiopathic purpura fulminans. He notes that the skin biopsy does not say that Ms. Reinoso’s purpura fulminans is idiopathic. Dr. Kumar then points out that the physicians who interpreted the skin biopsy concluded the biopsy was consistent with infectious purpura fulminans.
204Dr. Zoutman filed a further report in response to Dr. Kumar’s report of September 27, 2018. Dr. Zoutman did not engage Dr. Kumar on the point, did not explain how Dr. Kumar was wrong in his assessment and provided no further explanation about how the skin biopsy report assists in diagnosing idiopathic purpura fulminans.
205Once again, the question is not whether the plaintiffs or Dr. Kumar are surprised by the suggestion that the purpura fulminans was idiopathic in nature, the surprise lies in the fact that Dr. Zoutman wants to use Exhibit AA as one of the reasons for which he says the purpura fulminans is idiopathic.
206I declined to grant the defendants leave to introduce the evidence because doing so would prejudice the plaintiffs for the same reasons as generally set out in paragraphs 134 to 136 above. The plaintiffs have been denied the opportunity to lead evidence from Dr. Kumar on the point. They have been denied the opportunity to cross-examine the defendants on the point. They have been denied the opportunity to call a dermatologist or some other form of expert to address the skin biopsies and to rebut Dr. Zoutman’s proposed evidence. They have also been denied the opportunity to call the treating dermatologist or other treating physicians to respond to Dr. Zoutman’s theory.
207Instead of responding to an unarticulated defence theory, the plaintiffs relied on the notes of treating physicians to demonstrate that of the many physicians who cared for Ms. Reinoso at the time, not one diagnosed her as suffering from idiopathic purpura fulminans. Given the absence of a more substantive explanation in Dr. Zoutman’s reports, it was not necessary for the plaintiffs to go any further.
208To allow Dr. Zoutman to tie the skin biopsy to idiopathic purpura fulminans would turn experts reports into a game of hide and seek. Plaintiffs would now have to divine a complex theory about the causes of purpura fulminans from an oblique reference to the effect that “skin biopsies were taken.” That cannot be consistent with the goal of avoiding trial by ambush. That is trial by ambush.
209An adjournment would not address the issue for the reasons set out in paragraphs 141 to 149 above.
(iv) Rash
210On May 21, 2019, Ms. Bombier, on behalf of Dr. Daily sought to elicit evidence from her infectious diseases expert, Dr. Rau, about rash being an indicator of toxic shock syndrome.
211Dr. Rau had filed two reports. In his second report he expressed the view that Ms. Reinoso’s complications were not the product of septic shock as the plaintiffs contend, but were the product of toxic shock. The difference is significant. Septic shock can be prevented and, if is diagnosed early, treated. Toxic shock cannot be prevented or treated.
212Ms. Bombier sought to tie the issue of rash to toxic shock by taking Dr. Rau to a study published by the Centre for Disease Control which defined toxic shock as a syndrome that required the presence of four out of five listed criteria, of which rash was one. In his report, Dr. Rau had referred to the study but had mentioned only three of the five criteria. He did not mention rash.
213Dr. Rau’s proposed testimony would proffer rash as a reason for his opinion that Ms. Reinoso suffered from toxic shock syndrome. That reason is not contained in his report.
(a) Is the Testimony Latent in the Report?
214Ms. Bombier submits that the reference to the Centre for Disease Control publication makes the issue of rash latent in Dr. Rau’s report.
215I do not agree. Reference to a publication in an expert’s report does not incorporate by reference the entire publication. Expert reports frequently provide citations to journal articles and books. The reference is meant to provide either a source for what the expert is saying or is meant to demonstrate that others share the expert’s view. This does not, however, relieve the expert from the obligation of actually expressing the view in his report. To hold otherwise would turn the footnotes in an expert’s report into the actual report. It would mean that the substance of the opinion and the reasons for it are not contained in the text of the expert’s report but in the publications the expert cites in his report. It would leave the reader to guess which points in the referenced sources are the ones to which the expert will testify at trial.
(b) Should the Testimony Be Admitted under Rule 58.03?
216I nevertheless permitted Dr. Rau to testify about the issue of rash because the testimony fell into the category of responding to the evidence as it developed at trial: Moore at para. 69.
217Ms. Oakley, on behalf of the plaintiffs, had during her cross-examinations of Drs. Sarabia and Small, pursued the theory that the rash Ms. Reinoso exhibited on December 17 was the same rash she exhibited on December 25 and 26. Until that point, the suggestion had always been that the rash of December 17, 2007 was the product of an allergic reaction to Ancef.
218Ms. Oakley’s new theory was significant because the rash associated with septic shock appears earlier in the development of a patient’s illness. The rash associated with toxic shock generally appears later in the patient’s illness. Being able to tie the rash on December 17 to the rash that was observed on December 25 was a building block the plaintiffs could use to support their theory of septic shock and diminish the theory of toxic shock.
219The plaintiffs’ experts had not raised this theory in their reports, as a result of which the defendants’ experts did not raise it in their reports either.
220Given that Ms. Oakley had raised the rash with Drs. Sarabia and Small during cross-examination, the defendants were entitled to examine their own experts in chief about the concept of rash and what the proper analysis was of the rash on either December 17 or December 25 even though it was not contained in their reports.
221To the extent that permitting Dr. Rau to testify about rash put the plaintiffs to any prejudice, that is prejudice the plaintiffs brought upon themselves by pursuing a new theory of rash during the cross examinations of Drs. Sarabia and Small.
(v) Dr. Austin’s Proposed Testimony About Dr. Kremer’s Consultation Note
222On May 27, 2019 Mr. Mogil called Dr. Austin, an expert in emergency medicine, to testify on behalf of Dr. Soni. During the course of his examination, Mr. Mogil wanted to take Dr. Austin to a consultation note that Dr. Kremer, an internal medicine specialist, had prepared with respect to Ms. Reinoso on December 25, 2007.
223Dr. Kremer examined Ms. Reinoso after a series of unusual readings had prompted Dr. Daily to have an internist examine her urgently. Dr. Kremer examined Ms. Reinoso approximately 90 minutes before she suffered a complete collapse, was treated by an emergency team and was admitted to the intensive care unit. Dr. Kremer did not diagnose sepsis but suspected an allergic reaction.
224Mr. Mogil wanted to take Dr. Austin through Dr. Kremer’s note to demonstrate that sepsis was not easy to diagnose.
225Dr. Kremer’s note is not referred to in any of Dr. Austin’s three reports.
226Mr. Mogil did not argue that the proposed testimony was latent in Dr. Austin’s reports but submitted that the evidence is nevertheless admissible for two reasons. First, because Dr. Kumar testified beyond his reports by using a CT scan to testify about whether Ms. Reinoso’s condition had improved. Second because Dr. Kumar and Dr. McMillan had testified about Dr. Kremer’s consultation note, evidence to which the defendants should be permitted to respond.
227I do not find either argument persuasive.
228With respect to Dr. Kumar’s evidence about the CT scan: The defendants did not object to that evidence. As noted earlier, the defendants cannot use their own silence in the face of the plaintiffs’ expert’s testimony about an issue beyond the scope of their report as a basis for adducing evidence from their own experts on an unrelated issue that goes beyond the defendants’ experts’ reports.
229With respect to the submission that both Dr. Kumar and Dr. McMillan testified about Dr. Kremer’s report, there is a significant distinction. Neither Dr. Kumar nor Dr. McMillan referred to Dr. Kremer’s consultation notes in their reports. Nor did plaintiffs’ counsel elicit evidence from them about Dr. Kremer’s note. It was defence counsel who first raised Dr. Kremer’s note with them during cross-examination. Defence counsel raised the issue on his own, not in response to something that Dr. Kumar or Dr. McMillan had said. Defence counsel was entitled to do so because the right to cross-examine goes well beyond the contents of an expert’s report.
230However, just because a defendant can cross-examine the plaintiffs’ expert on something that is not contained in any of the experts’ reports, does not mean that the defendant can later examine their own experts in chief on that issue.
231To hold otherwise would allow the defence to eviscerate rule 53.03. It would allow defence experts to remain silent on a point in their reports, have the defence cross-examine the plaintiff’s expert on the point even though the plaintiff’s expert did not refer to it in his or her reports and then use that as an excuse to have the defence expert introduce evidence in chief which should have been set out in his report. This would sanction trial by ambush and allow defendants to avoid the requirements of rule 53.03.
(vi) Toronto Star Articles and Public Health Ontario Publication
232The final objection involves two articles from the Toronto Star and a publication from Public Health Ontario. It does not involve experts testifying beyond their reports. Some brief background information will be helpful to understand the issue.
233The primary attack upon Dr. Soni is that she failed to recognize that Ms. Reinoso had sepsis. Dr. Soni’s hospital had published what is known as a sepsis bundle, a decision tree that helps healthcare workers identify sepsis. One of the early components of the decision tree is the identification of Severe Inflammatory Response Syndrome or “SIRS.” A patient has SIRS if she meets two of four specified criteria. If a patient has SIRS, the sepsis bundle sets out further steps to determine whether the patient has sepsis.
234Dr. Austin was an emergency department expert who provided evidence on behalf of Dr. Soni. He was also the CEO of Markham Stouffville Hospital. In his reports and in chief, Dr. Austin was somewhat dismissive of the SIRS criteria and sepsis bundles. He referred to the SIRS criteria as generally inappropriate, ineffective and over inclusive. According to Dr. Austin, this limited utility led to changes in the definition of sepsis.
235After affirming these views on cross-examination, by Mr. Bohm on behalf of the plaintiffs, asked Dr. Austin how that more dismissive approach was working at the Markham Stouffville Hospital in the years leading up to and after 2007. Dr. Austin that replied that “It seemed to be working fine.”
236In response to this answer, Mr. Bohm proposed to enter through Dr. Austin, two articles from the Toronto Star. The first, from 2008, indicated that Dr. Austin’s hospital had the worst rate of preventable deaths in Canada. The second, from 2011, indicated that the hospital now had the lowest rate of preventable deaths in the GTA. The second article quoted Dr. Austin as crediting the improvement to a concerted effort to identify and treat patients with sepsis. The article also quoted Dr. Austin as attributing the improved identification of patients with sepsis to the introduction and wide dissemination of a sepsis bundle at his hospital. The bundle introduced at Dr. Austin’s hospital used the SIRS criteria and was substantially similar to the one available at the Credit Valley Hospital when Ms. Reinoso was treated there on December 24, 2007.
237Mr. Mogil objected to the introduction of the articles because their prejudicial effect exceeded their probative value and because they constituted extrinsic evidence about collateral facts. Mr. Mogil submits that when questioning a witness about a collateral fact (like the death rate at Dr. Austin’s hospital); the answer is treated as final and cannot be contradicted with extrinsic evidence: Sopinka and Lederman, Law of Evidence in Canada, 4^th^ ed. para. 16.229, Lexis Nexis, 2014.
238The collateral fact rule and its limitation on the introduction of extrinsic evidence is, however, subject to a number of exceptions, including the ability to impeach a witness with a prior inconsistent statement where a proper foundation been laid: Sopinka and Lederman, Law of Evidence in Canada, 4^th^ ed. para. 16.229, Lexis Nexis, 2014.
239Dr. Austin’s alleged statements to the Toronto Star with respect to the concerted effort to identify and treat sepsis and the hospital’s introduction of a sepsis bundle are inconsistent with the overall tenor of his evidence which tried to diminish the importance of SIRS and sepsis bundles. The plaintiffs are entitled to explore that potential inconsistency. At a minimum it raises a potential issue of credibility.
240I ruled that Mr. Bohm could not enter the two Toronto Star articles as exhibits but he could use them in the same way that we have used other prior inconsistent statements at the trial. That is to say, Dr. Austin could be asked whether he made a particular statement to the Toronto Star. If he agreed that he made that statement, there would be no need to put the article to him. If he denied making the statement, then the relevant portion of the Toronto Star article could be projected on a screen which was visible to the jury. If that occurred, Dr. Austin should have the full article before him in hard copy so that he could put whatever statement was attributed to him into what he believed was the proper context of the article as a whole.
241Mr. Bohm then wanted to go further and put to Dr. Austin, a 2016 publication from Public Health Ontario, the Antimicrobial Stewardship Strategy. That document had attached to it a version of the sepsis bundle that Dr. Austin’s hospital issued in 2012. As noted, the bundle is substantially similar to the one available at Credit Valley Hospital in December 2007. The point Mr. Bohm wanted to make was that, in 2016 public health authorities in Ontario were advocating for the use of SIRS criteria and sepsis bundles and attached the bundle from Dr. Austin’s hospital as a model to follow. That too could cast doubt on the credibility of Dr. Austin’s efforts to diminish the utility of SIRS and sepsis bundles.
242Mr. Mogil objects to the admission of the Public Health Ontario document on the basis that it reflects the standard of care in 2016, not the standard of care in 2007. In my view that submission misses the point. The plaintiffs are not putting the document to Dr. Austin to establish the standard of care at any given point in time. The plaintiffs put the document to Dr. Austin to test his credibility. Dr. Austin generally questioned the utility of SIRS and sepsis bundles. Their continued use by Public Health Ontario puts that into question. If Dr. Austin wishes to push back by noting that something happened between 2007 and 2012 (the date of his hospital’s sepsis bundle) or between 2007 and 2016 to suggest that sepsis bundles went out of fashion and then came back into fashion, he is free to do so. That was not however the tenor of his evidence. The thrust of his evidence was that even in 2007 sepsis bundles were not particularly useful and that they have become even less useful since then because definitions of sepsis have changed. His own hospital’s practices and the Public Health Ontario document put that into question.
243Mr. Mogil submitted that to permit the Public Health Ontario publication and the attached sepsis bundle to be marked as an exhibit was inconsistent with my ruling on the Meditech at issue. I do not share that view.
244The Meditech issue involved a screenshot of a computer record that Mr. Mogil wanted to put to Dr. Soni during her examination in chief. The screenshot showed the list of patients that were present at the Credit Valley Hospital on a particular evening together with a brief description of their symptoms and the urgency rating they had been given. The purpose of doing so was to demonstrate to the jury the volume of patients Dr. Soni had to see on a given night, the summary nature of the descriptions and the categorization of patients into various levels of urgency.
245The problem with the Meditech document was that it did not relate to December 24, 2007, the evening on which Ms. Reinoso was treated. Rather it related to an evening in February 2019. There was no basis on which to draw any similarity between the evening in February 2019 on which the screenshot was taken and December 24, 2007. I did, however, allow Mr. Mogil to put a redacted version of the Meditech document to Dr. Soni. The redacted version showed the headings on the document but not the individual entries under each heading. This would give the jury a visual indicator of the sort of information that Dr. Soni had available to her but would not influence the jury with the data available from the particular evening in 2019.
246The use of the Markham Stouffville Hospital’s 2012 sepsis bundle is entirely different. It is being put to Dr. Austin to challenge the credibility of his evidence to the effect that SIRS and sepsis bundles were unreliable.
Koehnen J.
Date: October 9, 2019.
Footnotes
- The paragraph continues “subject to the date set forth in the initial timetable of September 20, 2017.” The continuation of the sentence is not at issue here.
- By way of example, a plaintiff may be forced to change its theory of the case on the fly. The defendant will seek to exploit any weaknesses in that new theory. In those circumstances, the plaintiff will not become aware of the weakness until it has been exposed. At that point it is too late. In those circumstances, the frailty in the theory has not been brought about by the plaintiff's lack of care in developing the theory but has been brought about by the speed with which the plaintiff had to develop the theory because of the defendant's failure to comply with the rules. Permitting results like that would only encourage parties to breach rules and judicially imposed timetables.
- For ease of reference I will refer to counsel for the defendants Drs. Soni, Small and Sarabia (Mr. Mogil and Ms. Lewis) as either defence counsel or by name. I will refer to Dr. Daily's counsel (Ms. Bombier and Mr. Kinnear-Hunter separately by name).
- Given that all experts at trial were male, I may for ease of reference use the male pronoun when referring to experts rather than to his or her.