Superior Court of Justice - Ontario

COURT FILE NO.: 00-CV-199551

DATE: 20191015

RE: REGINALD BARKER, JEAN-PAUL BELEC, ERIC BETHUNE (formerly Jean-Jacque Berthiaume), JOSEPH BONNER, WILLIAM BRENNAN by the Estate Trustee MAXWELL BRENNAN, STEPHEN CARSON, ROY DALE, MAURICE DESROCHERS by the Estate Trustee LORRAINE DESROCHERS, DONALD EVERINGHAM, JOHN FINLAYSON, ROBERT FROST, TERRY GHETTI, BRUCE HAMILL, ELDON HARDY, WILLIAM HAWBOLDT by the Estate Trustee BARBARA BROCKLEY, DANNY A. JOANISSE, RUSS JOHNSON, STANLEY KIERSTEAD, DENIS LEPAGE, CHRISTIAN MAGEE, DOUGLAS McCAUL, BRIAN FLOYD McINNES, ALLEN McMANN, LEEFORD MILLER, JAMES MOTHERALL by the Estate Trustees DEBORAH KAREN MOROZ and JANE ALEXIS MARION, MICHAEL ROGER PINET, EDWIN SEVELS, SAMUEL FREDERICK CHARLES SHEPHERD and SHAUNA TAYLOR (formerly Vance H. Egglestone), Plaintiffs

– AND –

ELLIOTT THOMPSON BARKER, GARY J. MAIER and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Joel Rochon, Peter Jervis, Golnaz Nayerahmadi, and Adam Babiak, for the Plaintiffs Sam Rogers, William Black, Meghan Bridges, and Bonnie Greenaway, for the Defendants, Elliot Thompson Barker and Gary J. Maier Sara Blake, Meagan Williams, and Ann Christian-Brown, for the Defendant, Her Majesty the Queen in Right of Ontario

HEARD: October 11, 2019

QUALIFICATION OF EXPERT WITNESS

[1] In this voir dire the Defendants ask, rhetorically, what could be better than to have expert evidence given by a professional who worked during the relevant period at the very institution whose practices are in issue and who is intimately familiar with its programs?

[2] In response the Plaintiffs ask, in effect, what could be worse?

I. Qualifying an expert

[3] The Plaintiffs bring a mid-trial motion in the form of a voir dire in which they oppose the qualification of one of the Defendants’ proposed expert witnesses, Dr. Vernon Quinsey. They submit that he lacks the independence and objectivity required of a person called to give expert opinion evidence.

[4] The Defendants, Elliot Thompson Barker and Gary J. Maier, supported by the Defendant, Her Majesty in Right of Ontario (who, for the purposes of this motion will be collectively referred to as the Defendants) propose calling Dr. Quinsey as an expert on issues of standard of care and causation with respect to the treatment of the Plaintiffs at the Oak Ridge Division (“Oak Ridge”) of the Penetanguishine Mental Health Centre (“PMHC”) from 1965 to 1983. He is also expected to opine on whether the programs run in the Social Therapy Unit (“STU”) at Oak Ridge during the relevant era were in the nature of clinical treatment or research/experimentation.

[5] Dr. Quinsey is a Professor Emeritus of Psychology, Biology and Psychiatry at Queen’s University, where he has been a faculty member since 1988. While at Queen’s he has headed a forensic psychology/psychiatry unit and has taught research skills to psychology graduate students. From 1995-2004 he was a member of the Research Committee at Kingston Psychiatric Hospital, vetting research proposals involving psychiatric patients and applying the professional ethical norms relevant such proposals. He has a lengthy list of professional publications, and from 2001-2010 he was on the editorial board of the International Journal of Forensic Psychology. Has been qualified as an expert witness by other courts in Canada and the United States, and has testified before committees of Parliament and state legislatures in the U.S. From the point of view of academic accomplishments and professional credentials, Dr. Quinsey would be just what a case like this calls for in terms of expert testimony.

[6] It is not, however, Dr. Quinsey’s professional qualifications that have been put in question in this motion. Rather, it is his involvement at PMHC at an earlier stage of his career that is the focus of the Plaintiffs’ objection to his giving evidence.

II. Dr. Quinsey’s experience

[7] From 1971 to 1975, Dr. Quinsey was a staff psychologist at Oak Ridge. From 1976 to 1984 he was Director of Research for PMHC, and held this position again from 1986 to 1988. These years include the heart of the period in which the Plaintiffs underwent treatments in Oak Ridge. The Plaintiffs claim that they were experimented on and harmed by the programs in which they participated and the treatments they received at Oak Ridge, thus putting the medical standards and ethics of those programs and treatments at issue in this action.

[8] Counsel for the Defendants submits that the probative value of Dr. Quinsey’s evidence outweighs any prejudicial effect which may arise. As they put it in their factum, “He is the only expert on either side who treated patients at a maximum-security mental hospital during the period relevant to this litigation. This perspective is clearly relevant and highly probative for the Court…”

[9] Counsel for the Plaintiff submits that it is this experience that makes Dr. Quinsey unobjective and therefore unqualified to testify as an expert at trial. As they put it in their factum, Dr. Quinsey “conducted studies and research on STU patients, the results of which were used…to promote the programs and their purported efficacy. Dr. Quinsey’s personal and professional affiliation with Oak Ridge and his direct involvement in the STU programs preclude him from providing fair, non-partisan expert opinion in a case for breach of fiduciary duties arising from the alleged unethical human experimentation…carried out under the guise of psychiatric treatment.”

III. The requirement of independence

[10] It is important in qualifying an expert that not only must he or she have the relevant expertise, but the testimony must be relevant and necessary in assisting the trier of fact. Most importantly for present purposes, the opinion evidence must be such as to assist the tier of fact in being “able to keep an open mind and objectively assess the worth of the evidence”: R v Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9. As Cromwell J. put it in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182, para 2, “Expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance. A proposed expert witness who is unable or unwilling to comply with this duty is not qualified to give expert opinion evidence and should not be permitted to do so.”

[11] The Court of Appeal has instructed that, “in the governing framework for admissibility, the court should consider an expert’s potential bias when determining whether the expert is properly qualified at the initial threshold: Bruff-Murphy v Gunawardena, 2017 ONCA 502, para 38. Accordingly, the question of independence falls to be considered and decided “at the time the evidence is proffered and the expert witness’s qualification is requested by a party”: Ibid., para 60.

[12] As already indicated, Plaintiffs’ counsel submits that Dr. Quinsey was too closely associated with PMHC and, in particular, with Oak Ridge, during the 1970s and into the early 1980s to be an objective expert. The Plaintiffs acknowledge that Dr. Quinsey has signed the requisite form attesting to his duty of objectivity, and, indeed, they do not say that Dr. Quinsey is consciously biased in favour of the Defendants. Rather, they state that his lengthy professional association with the very institution whose programs are being severely criticized by the Plaintiffs will likely induce an unconscious bias in the form of a desire to defend and rehabilitate the reputation of programs and an institution which forms an integral part of his professional resumé.

[13] Counsel for the Defendants denies that this is the case. He points out that although Dr. Quincey did work at Oak Ridge, he was not in the STU but rather was in the other half of that facility, the Active Therapy Unit (“ATU”). The ATU housed similar psychiatric patients as were in the STU, but it did not run the now defunct drug and other programs at issue in this litigation. Those were administered only in the STU.

[14] Building on this foundation, counsel for the Defendants relies on case law to the effect that an expert witnesses’ employment with the company in issue in the litigation is not enough to disqualify the expert if he had nothing to do with the issues at hand: St Clair Boating & Marina v Michigan Electric Supply Co., 2017 ONSC 23, para 78. In such a case, the association of the expert with one of the parties does not rise to the level of posing a “risk that the trier of fact will be unable to make an effective and critical assessment of the evidence”: Ibid., para 60.

[15] Counsel for the Plaintiff agrees with that statement as a general proposition of law, but argues strenuously that it does not describe the case before me. He points out that while Dr. Quinsey worked in the ATU rather than the STU as a staff psychologist, he had overarching responsibility once he became Director of Research. Plaintiffs’ counsel submits that as the head of all research projects conducted at PMHC, Dr. Quincey would not only be intimately familiar with their operations and their costs and benefits, but he would have been vested with responsibility for their being approved and implemented.

IV. The Social Therapy Unit programs

[16] A brief perusal of documents already in the record indicates that Plaintiffs’ counsel is accurate in describing Dr. Quinsey’s function at PMHC.

[17] As an example, the 1973 STU Report to the administration of the PMHC indicates that Dr. Quinsey was involved in the programs at issue in this litigation. This involvement began toward the beginning of Dr. Quinsey’s career at PMHC, while he was still in the position of staff psychologist in the ATU and before assuming responsibilities for the then nascent research department.

[18] The 1973 Report refers to the programs on F Ward, the institutional house for the most contentious of the STU programs. It explains that, along with the Defendant, Dr. Gary Maier, Dr. Quinsey was integrally involved in the programs’ evaluation at the time: “We have one in-house study on F Ward. This was designed by Dr. Quinsey and Dr. Maier and is an attempt to evaluate the progress made by patients in a six months program. It began in January 1974 and the information will be terminated at June 1974 and then the data will be processed.”

[19] The study by Dr. Quinsey and Dr. Maier was obviously important to the continuation of the contentious STU programs. The minutes of a meeting of the Penetanguishene Advisory Committee (“PAC”) on March 20, 1974 indicate that Dr. Quinsey was responsible for researching and evaluating the programs at issue in this very litigation: “Mr. Loucks noted that a program has been set up for F Ward and Dr. Quinsey is helping them research the effectiveness of a 6 month treatment program to see if they can determine any changes.”

[20] As indicated above, Dr. Quinsey assumed the role of Director of Research in 1975. The December 17, 1975 PAC meeting was the first of that important oversight committee with Dr. Quinsey participating in his new capacity. The PAC met monthly and provided advice to the medical director of the PMHC. Dr. Maier was also a member of the PAC during this time. The minutes of the December 17, 1975 meeting indicate the STU programs, including the most controversial of them where hallucinogenic drugs were used on patients, were discussed and advised on by the PAC with Dr. Quinsey’s full participation: “F-Ward Program: The Medical Advisory Committee have supported the existing program and approved the use of the remaining thirty-six (36) vials of LSD.”

[21] Dr. Quinsey’s involvement with evaluating the STU programs that are at the heart of the Plaintiffs’ claims continued throughout the latter half of the 1970s. In a memo dated July 10, 1979, Dr. Quinsey, as a member of the PMHC Inter-Unit Committee, reported to the meeting of unit heads on the group therapy programs at Oak Ridge. Group therapy was the core of the STU programs at issue in this litigation. In this memo, Dr. Quinsey can be seen fulfilling his function of reporting to the administrative committee which oversaw all of the PMHC units, including the STU.

[22] Not only did Dr. Quinsey have responsibility for evaluating and reporting on the STU programs, but he also developed a serious academic interest in researching the programs at issue here. In a scholarly publication entitled, “Assessments of the Dangerousness of Mental Patients Held in Maximum Security”, 2 Int’l Journal of Law and Psychiatry 249 (1979), Dr. Quinsey used the work he did at PMHC as the platform for his discussion of approaches to be taken to persons in the position of the Plaintiffs in this action. Indeed, the article makes it clear that the subjects of his study are the persons who were subjected to the very programs about which the Plaintiffs complain in this law suit. Describing the STU at Oak Ridge, Dr. Quinsey writes, at p. 397:

Twenty-two patients were studied for a 5-month period. During this time their program was largely self-contained and patient led. The program included long term interactions between pairs of patients, government by patient committees, the administration of drugs such as LSD and scopolamine in a therapeutic context to patient volunteers, and marathon small group interactions in an environment isolated from the rest of the world.

[23] That description, published by Dr. Quinsey in 1979 while Director of Research at the very institution at issue in this litigation, could have come from the Defendants at any stage of this action. It mirrors the way in which Dr. Maier described the STU programs in his testimony at trial. It reflects the fact that although Dr. Quinsey was not involved in the day-to-day management of the STU programs, he was involved in the institution in which they took place and had a distinct involvement in studying and evaluating them on behalf of that institution. Although he is not named as a personal Defendant in this action, Dr. Quinsey is really no more of an independent expert than Dr. Maier himself would be.

[24] Counsel for the Defendants argues that Dr. Quinsey left PMHC in the latter half of the 1980s to take up a position at Queen’s University and never went back. The suggestion is that this distance in time has effectively dissociated Dr. Quinsey from any potential bias in favour of his former employer, and has provided him with the objectivity necessary to reflect on the Oak Ridge experiences in a way that will provide helpful expertise to the court.

[25] I note, however, that Dr. Quinsey’s time at PMHC was formative for much of his subsequent work as an academic. His curriculum vitae contains an impressively lengthy list of publications in academic and professional journals dealing with various topics in psychology. He has helpfully sorted these publications into categories in an effort to identify those that deal in some way with his earlier career at Oak Ridge. By his own estimate, his research and writing that involves Oak Ridge or Oak Ridge patients to an “appreciable degree” is about 25% of his overall published work; another 25% has at least some reference to Oak Ridge.

[26] In other words, fully half of Dr. Quinsey’s career, including the 3 decades that have passed subsequent to his leaving his position at PMHC, have been involved with evaluating, reflecting on, and professionally engaging with the experiences that he encountered while working there. The work that Dr. Quinsey did in evaluating the STU programs early in his career has not faded; indeed, it has reverberated through the years as a central theme in his later academic career.

V. Dr. Quinsey’s report and testimony

[27] In this hybrid form of trial, the expert witnesses have each produced written reports which have been introduced into evidence and which make up the bulk of their evidence in chief. The first page of Dr. Quinsey’s expert report, which I have seen as part of this voir dire, sets out the mandate he was given by Defendants’ counsel:

I was asked to provide my opinion concerning:

1. The reasonableness of how the STU Program functioned from the mid-sixties until the late seventies.

2. Whether the STU Program at Oak Ridge caused harm to Eric Bethune, William Brennan, Stephen Carson, Stanley Kierstead, Douglas McCaul, Leeford Miller, and James Motherall.

[28] As the Supreme Court indicated in White Burgess, para 49, there is a threshold determination which I must make in carrying out my gatekeeping function as trial judge as to whether a proposed expert witness is “able and willing to carry out his or her primary duty to the court.” This is in addition to satisfying myself that the proposed expert meets the Mohan criteria of relevance, necessity, absence of an exclusionary rule, and qualifications of the expert. This second step involves a discretionary decision by the trial judge, as set out by the Supreme Court and re-iterated by the Court of Appeal in Bruff-Murphy, para 36:

The second component is a ‘discretionary gatekeeping step’ where ‘the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks’: [White Burgess] para. 24. It is a cost-benefit analysis under which the court must determine whether the expert evidence should be admitted because its probative value outweighs its prejudicial effect.

[29] In my view, Dr. Quinsey is not able to pass this threshold test. I say this without any disrespect to his professional credentials, which are excellent, or to his sincerity in attempting to provide the court with the best analysis that he can of the programs. However, he played too integral a role in the very acts which the Defendants are now compelled to defend to be an independent, objective expert witness.

[30] The former Director of Research, responsible at the time for Oak Ridge’s own in-house evaluation of the programs at issue, cannot become an independent assessor of the same programs with the passage of time. The probative value of his report and potential testimony is rather low since his objectivity as an expert is in serious doubt; that, in turn, makes the prejudicial value of his evidence substantially higher than the probative value and effectively disqualifies him from giving expert evidence at trial.

[31] Counsel for the Plaintiffs goes on to submit that there is a further problem with admitting Dr. Quinsey’s report and testimony into evidence, in that like the expert testimony at issue in Bruff-Murphy, at para 47, he “goes beyond a mere lack of independence and appears to have adopted the role of advocate for the defence.” A brief perusal of Dr. Quinsey’s report suggest that indeed that may be the case. However, I need not come to any definitive conclusion in that regard, as the preliminary hurdle of qualifying him as an independent expert has not been passed.

[32] I note that in addition to the general standard of care question which Dr. Quinsey was asked by Defendants’ counsel, he was also asked to address causation issues with respect to 7 individual Plaintiffs. Of those, causation issues with respect to 5 of the Plaintiffs are also evaluated by other experts produced by the Defendants. Leeford Miller and James Motherall are the only two whose medical records were specifically evaluated by Dr. Quinsey and by no other expert witness for the Defendants.

[33] This small gap in causation evidence is not a large price to pay for excluding Dr. Quinsey’s testimony. As stated above, the effect of Dr. Quinsey, a PMHC staff psychologist, Director of Research, and associate of Dr. Maier in evaluating the programs carried on in the STU at Oak Ridge during much of the relevant period, is far too prejudicial to the Plaintiffs’ case. It is not counterbalanced by the small benefit of having an assessment of two of the Plaintiffs’ medical records for causation purposes.

VI. Disposition

[34] The question of “independence or impartiality on the part of an expert witness goes to the admissibility of the witness’s testimony, not just to its weight”: Bruff-Murphy, para 38. Under the circumstances, Dr. Quinsey’s report and testimony are not admissible as expert evidence.

[35] That said, Dr. Quinsey may well have some relevant evidence to give as a person who was witness to events in issue. Defendants’ counsel has indicated to me that the Defendants intend to call Dr. Quinsey as a fact witness even if he is not permitted to testify as expert. I see nothing wrong with proceeding in that way. Dr. Quinsey’s involvement with the STU programs through the latter half of the 1970s and into the early 1980s makes him a potentially important fact witness even as it disqualifies him as an independent expert witness.

Morgan J.

Date: October 15, 2019