NEWMARKET COURT FILE NO.: CV-14-117930-00
DATE: 20211118
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Estate of Milicent Agola Owala, by the Estate Administratror Vivian Awuor Oawal, Vivian Awuor Owala, Andy Ochieng Owala, Michelle Atieno Owala, Prisca Akelo Ogweno, by her Litigation Guardian Vivian Awuor Owala, Lawrence Otila Ogweno, by his Litigation Guardian Vivan Awuor Owala, James Odero Ogwendo, by his Litigation Guardian Vivan Awuor Owala, and Felix Ogweno Ogweno, by his Litigation Guardian Vivan Awuor Owala
Plaintiffs
– and –
Southlake Regional Health Centre, Dr. David Makary, Nicole (Nikki) Watts, and Abigael (Abby) Boakye
Defendants
Miguna Miguna for the Plaintiffs
Gordon Slemko and Jonathan Gutman for the Defendants Southlake Regional Health Centre, Nicole (Nikki) Watts and Abigael (Abby) Boakye and Paul-Erik Veel and Jessica Kras for the Defendant Dr. David Makary
HEARD: July 30, 2021
RULING REGARDING PLAINTIFFS' MOTION TO STRIKE THE EVIDENCE OF DR. IAN PREYRA
WOODLEY, J.:
Introduction
[1] The Plaintiffs' bring this motion to strike the evidence of Dr. Ian Preyra, MD, MBA, FRCPC, an emergency physician expert, who was called by the Defendant Dr. David Makary to opine upon the standard of care applicable to Dr. Makary and causation.
[2] The Plaintiffs' allege that Dr. Preyra was biased on the basis that his spouse, Dr. Catherine Grenier, enjoys privileges and has worked as an emergency physician at the Defendant Hospital, Southlake Regional Health Centre ("Southlake").
[3] In accordance with the directions provided by the Court and on consent of the parties, this motion was argued at the end of trial, to be determined and released at the same time as the Reasons for Decision for trial.
Overview
[4] The trial of this action began on March 29, 2021, virtually, in accordance with the Covid-19 pandemic protocols of the Superior Court of Justice.
[5] Due to the availability of counsel and witnesses, the trial had several breaks and pauses with the evidence concluding on June 4, 2021 with the re-calling of the defence expert witness, Dr. Preyra.
[6] Dr. Preyra had previously been qualified and had testified as an expert witness on the standard of care applicable to Dr. Makary and causation.
[7] During the third day of his cross-examination, Dr. Preyra disclosed that his spouse, Dr. Catherine Grenier, has privileges as an emergency physician at Southlake being the same hospital that Dr. Makary and the Defendant nurses, Nicole Watts, and Abigael Boakye provided care to Millicent Agola Owala.
[8] This disclosure by Dr. Preyra came as a complete surprise to all counsel involved.
[9] Following disclosure, Dr. Preyra was cross-examined and re-examined on his spouse's relationship with Dr. Makary, the defendant nurses, and Southlake. Further questions were posed regarding the commencement of Dr. Grenier's privileges at Southlake, the dates and times of her shifts, whether Dr. Grenier knew or had worked with any of the defendants, and whether Dr. Preyra discussed with Dr. Grenier his expert opinion and/or the events that form the subject matter of the litigation.
[10] Following the conclusion of Dr. Preyra's testimony, plaintiffs' counsel obtained a copy of Dr. Grenier's privileges and shifts file from Southlake and Dr. Preyra was re-called for cross-examination on the documents.
Issues
[11] The sole issue on the motion is whether Dr. Preyra's expert opinion evidence should be struck. The specific concerns raised can be framed as follows:
a. Is Dr. Preyra a properly qualified expert? and
b. Is Dr. Preyra's evidence admissible?
Law and Analysis
The Legal Test for Admissibility
[12] As noted by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 82, at para. 19, the legal test for admissibility of expert evidence has two components.
[13] In the first stage, as articulated by the Supreme Court in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, the proponent of the evidence must persuade the trial judge that the proposed expert opinion is:
i. relevant;
ii. necessary;
iii. not barred by any other exclusionary rule; and
iv. given by a properly qualified expert.
[14] In the second stage, the trial judge must engage in a gatekeeping function in which the trial judge balances the potential risks and benefits of admitting the evidence to determine whether the potential benefits justify the risks: White Burgess at para. 24.
First Stage: Threshold Admissibility
[15] Although, the real issue to be determined by me is whether Dr. Preyra is a "properly qualified expert", it is necessary for Dr. Preyra to satisfy all requirements of the test articulated in Mohan, to be qualified as an expert.
Relevance
[16] Relevance is determined by the tendency to make a fact in issue more or less likely than it would be without that evidence (R. v. Abbey, 2009 ONCA 624, [2009] O.J. No. 3534, at para. 82 ("Abbey")). Evidence is relevant "where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence": R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47.
[17] The proponent of the evidence, which in this case is Dr. Makary, needs to demonstrate relevance on a balance of probabilities. In the present case, having heard and reviewed the evidence of Dr. Preyra, I confirm that I am satisfied that the "relevance" of his evidence has been thoroughly demonstrated.
Necessity
[18] Expert opinion evidence is sometimes necessary as it provides specialized knowledge or training that would assist the trier of fact gain access to useful information or draw relevant inferences.
[19] Necessity is demonstrated where the expert provides opinion evidence on a subject-matter upon which ordinary people are unlikely to form a correct judgment. If, however, "on the proven facts a judge or jury can form their own conclusions without help, then the opinion of [an] expert is unnecessary". (See Mohan, at p. 23, Abbey, at p. 42 and R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 45).
[20] The caselaw has established that in a medical negligence claim where the loss is allegedly caused by a breach of standard of care, the claim must be supported by expert evidence and must be provided by a physician in the same field as the Defendant. (See Kurdina v. Gratzer, 2010 ONCA 288, at para. 2; see also Piatkowski et al v. Drakos, 2021 ONSC 4531, at para. 56; Fish v. Shainhouse, [2005] O.J. No. 4575, 143 A.C.W.S. (3d) 379).
[21] Further, aside from the clearest of cases, the absence of expert evidence to support the claim is fatal to the litigation. (See Piatkowski et al v. Drakos, 2021 ONSC 4531).
[22] In the present case, the Plaintiffs' seek damages for alleged medical negligence arising from the care and treatment provided to the deceased Millicent Owala. The allegations include breach of standard of care by the Defendant doctor. Expert medical evidence is required to both prove and (in the present case) to defend the claim.
[23] Dr. Preyra is the only expert witness called by the Defendant doctor to opine on the standard of care applicable to emergency physicians. The necessity of Dr. Preyra's evidence has been thoroughly demonstrated in this case.
Absence of an exclusionary rule
[24] Typically, opinion evidence falls within one of the exclusionary rules of evidence law. However, the Courts have found that there is value in admitting expert opinion evidence where determination of the issues requires a specialized skill and expertise. The Courts have also found that such expert evidence is necessary in circumstances such as the present case provided that the opinion evidence proffered be limited to matters where the proposed individual is considered an expert. (See Brown v. Her Majesty the Queen, 2019 ONSC 3411, at para. 15).
[25] Having heard and considered the evidence relating to Dr. Preyra's education, qualifications, and experience, it is evident that he is an expert in emergency medicine qualified to provide opinion evidence as to the standard of care applicable to emergency physicians and causation. As there does not appear to be any exclusionary rule that would prohibit Dr. Preyra's evidence, this element is satisfied.
Properly qualified expert
[26] The main concern raised by the Plaintiffs' on this motion relates to Dr. Preyra's duty to the court and his willingness and capacity to comply with this duty. As the Court directed in White Burgess, this analysis is best addressed under the "qualified expert" element of the Mohan framework: at para. 53. Therefore, the main issue on this motion is whether Dr. Preyra is a properly qualified expert.
[27] In the present case, the Plaintiffs' submit that Dr. Preyra's evidence should be struck on the basis that Dr. Preyra is biased, lacking in objectivity, lacking in impartiality, and failed to disclose a disqualifying conflict of interest. More specifically, the Plaintiffs' submit that the bias arises as Dr. Preyra's spouse Dr. Catherine Grenier was a staff emergency physician at Southlake from September 27, 2018, to present while Dr. Preyra was acting as an expert witness for Dr. Makary, who also had privileges at Southlake.
[28] The Defendant doctor submits that that motion should be dismissed as the law is clear that the tangential nature of the relationship in this case – that the expert's spouse has privileges and has worked some shifts in the emergency room where the Defendant physician previously worked – is not the type of relationship that could possibly give rise to a qualifying bias. As for the issue of disclosure, Dr. Preyra reasonably believed that there was no conflict to disclose and was correct in this belief. In any event the timing of Dr. Preyra's first report dated February 6, 2018, which set out his substantive opinion demonstrates that his wife's subsequent work at Southlake had absolutely no bearing on his opinion in this case.
[29] It is trite law that an expert witness has a duty to the court to give fair, objective and non-partisan opinion evidence, and that this duty prevails over any obligation owed by the expert to a party: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 4.1.01(1)(a) and 4.1.01(2). An expert must be aware of this duty and be able and willing to carry it out.
[30] A trial judge's approach to an expert's duties and the admissibility of their evidence was outlined by the Supreme Court in White Burgess, at para. 34, where the Court directed:
a proposed expert's independence and impartiality goes to admissibility and not simply to weight and there is a threshold admissibility requirement in relation to this duty. Once that threshold is met, remaining concerns about the expert's compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role.
[31] In addition, the Court, citing Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, held:
It is well established that an expert's opinion must be independent, impartial and objective, and given with a view to providing assistance to the decision maker. However, these factors generally have an impact on the probative value of the expert's opinion and are not always insurmountable barriers to the admissibility of his or her testimony. Nor do they necessarily "disqualify" the expert. For expert testimony to be inadmissible, more than a simple appearance of bias is necessary. The question is not whether a reasonable person would consider that the expert is not independent. Rather, what must be determined is whether the expert's lack of independence renders him or her incapable of giving an impartial opinion in the specific circumstances of the case. (Emphasis added.) [Citations omitted.]
[32] The burden is on the party opposing the admission of the evidence to show that there is a realistic concern that the expert's evidence should not be received because the expert is unable and/or unwilling to comply with that duty: White Burgess, at para. 48. If a realistic concern is shown, the party seeking to have the expert admitted has the burden to establish on a balance of probabilities that the expert should nonetheless be allowed to give evidence: White Burgess, at para 48; R. v. Abbey, 2017 ONCA 640, 350 C.C.C. (3d) 102.
[33] The Court in White Burgess, at para. 49, described the circumstances that could lead to an expert's opinion being inadmissible as:
a. A direct financial interest in the outcome of the litigation;
b. A very close familial relationship with one of the parties; and
c. Situations in which the proposed expert will probably incur professional liability if his or her opinion is not accepted by the Court.
[34] The Court in White Burgess, at para. 49, also held that a "mere employment relationship with the party calling the evidence will be insufficient to render a proposed expert opinion inadmissible".
[35] Notably, the Court in White Burgess at para. 49, emphasized that the threshold is not onerous. Instances where this threshold is not met resulting in the inadmissibility of the evidence, rather than going to weight, will be rare.
[36] Turning to the evidence and argument in the present case, the Plaintiffs rely, inter alia, upon the following facts to exclude Dr. Preyra's evidence:
a. Dr. Preyra was retained in January 2018; delivered his first expert report on February 6, 2018; signed Rule 53 on February 13, 2018; and delivered his subsequent reports on January 29, 2019, March 3, 2021, and March 18, 2021.
b. Dr. Preyra's first report lists information reviewed by him but does not indicate that he had "discussed the case with third parties, specifically his spouse who was at all material times a staff physician" at Southlake.
c. Dr. Preyra's spouse, applied for privileges at Southlake on August 1, 2018; was granted privileges on September 28, 2018; and has worked numerous shifts since November 2018 up to April 2021.
[37] The Plaintiffs submit that Dr. Preyra's spouse, Dr. Grenier, "would have contact with the Defendants capable of extracting information about this proceeding from Southlake in a manner that would place Dr. Preyra in a conflict of interest".
[38] The Plaintiffs further submit that during cross-examination Dr. Preyra deliberately gave "flagrant and deliberate falsehoods" regarding the commencement of Dr. Grenier's privileges and the dates of her shifts intended to mislead this Court.
[39] The Plaintiffs argue that contrary to Dr. Preyra's testimony, Dr. Grenier's privileges and shift records disclosed that Dr. Grenier had worked substantially more shifts over a lengthier period than admitted. The Plaintiffs submit that when Dr. Preyra was re-called following production, he "initially admitted to having given false information before plunging into long convoluted, evasive and unreasonable explanations of the obvious contradictions and inconsistencies".
[40] Moreover, the Plaintiffs claim that Dr. Preyra's attempt to explain the inconsistencies provides further evidence of Dr. Preyra's inability to provide independent, unbiased, and objective evidence in accordance with his duty as an expert.
[41] The Defendant doctor submits that Dr. Preyra is an established emergency room physician and the current Chief of Staff at Joseph Brant Hospital in Burlington. He is involved in the regulation of the medical profession through his work as a peer assessor for the College of Physicians and Surgeons. He is an examiner of medical students seeking to become physicians for the Royal College of Physicians and Surgeons. He regularly teaches medical students and residents. He is also certified as an investigative coroner in the Province of Ontario. In short, Dr. Preyra has exemplary credentials to provide opinion evidence as to the standard of care applicable to an emergency room physician and causation in this case.
[42] The Defendant doctor notes that this was Dr. Preyra's fist time testifying as an expert in a civil proceeding and that Dr. Preyra was qualified on consent of the parties to provide opinion evidence. Dr. Preyra was also qualified by this Court to opine on the standard of care applicable to Dr. Makary as an emergency room physician and causation. Moreover, it is noteworthy for the purposes of this motion that Dr. Preyra was not qualified to opine on any matters relating to the Plaintiffs' claims against Southlake or the Defendant nurses nor did he so opine in his reports or oral testimony.
[43] The Defendants submit that Dr. Preyra delivered his first report on February 6, 2018 which set out the substance of his opinion on two issues:
a. Whether Dr. Makary met the standard of care of an emergency room physician; and
b. Whether any alleged breach of the standard of care by Dr. Makary caused Ms. Owala's death.
[44] The three further reports dated January 9, 2019, March 3, 2021, and March 18, 2021, that responded to comments from Dr. Fonberg and Dr. Fitchett. However, the substance of his opinion did not shift between his initial report and his subsequent reports.
[45] The Defendants submit that Dr. Preyra has never met Dr. Makary and has no relationship of any kind with Dr. Makary. Dr. Preyra has never worked at Southlake and there is no evidence that he knows either of the Defendant nurses. Simply stated, Dr. Preyra has no relationship of any kind with any of the Defendants in this case.
[46] The Defendants note that Dr. Preyra's spouse, Dr. Grenier, is also an emergency room physician who works at several hospitals but her primary hospital is Trillium Health in Mississauga. Dr. Grenier occasionally works at Southlake.
[47] Dr. Grenier began working at Southlake several months after Dr. Preyra delivered his first report. Dr. Grenier is not an employee of Southlake but an independent contractor with privileges at Southlake.
[48] In the present case, Dr. Makary ceased working in the Southlake emergency department in 2015 – three years before Dr. Grenier began. There is no evidence that Dr. Makary and Dr. Grenier have ever met or communicated or have any kind of relationship.
[49] The Defendant doctor submits that Dr. Preyra testified that there was a period of almost two years when Dr. Grenier didn't work at Southlake. I note that Dr. Preyra's testimony in this regard was supported by Dr. Grenier's shift records.
[50] The Defendant doctor further submits that the Plaintiffs written argument regarding several portions of Dr. Preyra's testimony is misleading and a mischaracterization of Dr. Preyra's evidence and Dr. Grenier's privileges file and that Dr. Preyra was forthright and transparent on the issue of Dr. Grenier's privileges and shifts once the issue was raised. During cross-examination Dr. Preyra readily agreed that Dr. Grenier's shift schedule be produced so that his evidence could be more accurate.
[51] Dr. Preyra confirmed during cross-examination that he did not discuss this case with Dr. Grenier, nor did he receive or disclose any personal health information nor any Southlake confidential information. Dr. Preyra confirmed that he had not advised either the Court or counsel who retained him that his spouse worked at Southlake.
[52] Dr. Preyra testified that when he was retained and prepared his initial report that Dr. Grenier was not working at Southlake. I note that Dr. Preyra's testimony in this regard is supported by Dr. Grenier's privileges file and shift records. Although Dr. Grenier began to work at Southlake during the course of his retainer Dr. Preyra did not consider there could even be the perception of conflict in this case or he would have advised his counsel.
[53] The Defendant doctor submits that when Dr. Preyra was re-called following production of Dr. Grenier's file that the cross-examination showed that while Dr. Preyra's recollection of some of the precise dates was off – the substance of his evidence about Dr. Grenier's work was accurate. I concur with this submission.
[54] The Defendant doctor submits that the Plaintiffs' allegation that Dr. Preyra was deliberately providing false information to mislead the court is inaccurate and unfair. Prior to being first cross-examined on the issue of his spouse's privileges and shifts at Southlake, Dr. Preyra had not considered the issue or reviewed any records. His evidence was broadly consistent with the records produced. I also concur with this submission.
[55] In determining the issue as to whether Dr. Preyra is a properly qualified expert, I have considered the prevailing caselaw, the facts of this case, and the arguments of the parties. Having considered the matter thoroughly I have determined that Dr. Preyra has no disqualifying bias. Dr. Preyra is a properly qualified expert and that his testimony is admissible at stage one of the Mohan enquiry. In so finding Dr. Preyra to have no disqualifying bias and to be a properly qualified expert, I find the following facts to be persuasive:
a. Dr. Preyra wrote his first and most substantial opinion prior to his spouse, Dr. Grenier, obtaining privileges at Southlake;
b. Dr. Preyra's opinion did not change following the date that his spouse, Dr. Grenier, obtained privileges at Southlake;
c. Dr. Preyra has never worked at Southlake, has never met Dr. Makary, has never met Nurse Boakye or Nurse Watts, and has no relationship with the Hospital or any of the Defendants;
d. Dr. Preyra's spouse, Dr. Grenier, has never worked with Dr. Makary and there is no evidence that Dr. Grenier and Dr. Makary have ever met or communicated with one another;
e. Although Dr. Grenier has met Nurse Watts, Dr. Preyra provided no written opinion and provided no testimony at trial relating to the Defendant Southlake or the Defendant nurses;
f. The fact that Dr. Preyra's spouse has met and perhaps worked with one or both of the Defendant nurses is irrelevant and does not impact Dr. Preyra's independence as an expert witness qualified to provide opinion evidence relating to the standard of care of an emergency room physician or causation;
g. Dr. Preyra's explanation for failing to disclose that his spouse Dr. Grenier obtained privileges at Southlake following delivery of his first expert report is credible, understandable, reasonable and reliable.
h. Dr. Preyra has no recognized qualifying bias in that he has no financial interest in the outcome of the litigation, shares no familial relationship with any of the parties, and will not incur professional liability if his opinion is not accepted by the Court. The fact that Dr. Preyra's spouse obtained privileges at the Defendant hospital after he prepared his substantial opinion and has met one of the Defendant nurses is, at best, tangential and does rise to the level of a qualifying bias.
i. Dr. Preyra throughout his testimony presented as an eminently qualified expert perfectly suited to provide expert evidence regarding the standard of care of an emergency physician and causation. While the manner in which Dr. Preyra disclosed his spouse's connection to Southlake was unexpected and concerning at the time of the disclosure – having had the benefit of quiet reflection and perspective and having thoroughly reviewed the entirety of the evidence presented – I find no fault with the manner in which Dr. Preyra disclosed the information or the fact that Dr. Preyra did not consider such information to raise even a suspicion of conflict to act as an expert witness in this proceeding.
j. The overall tenor and content of Dr. Preyra's evidence and the conscientious and thoughtful manner in which he responded to all questions put to him, reflected favourably on his ability to consider the issues as an independent, unbiased, and nonpartisan expert, which I find him to be.
Second Stage: "Gatekeeping" Function
[56] Although the admissibility criteria of stage one of the Mohan test are met, as noted by the Court of Appeal in Parliament v. Conley, 2021 ONCA 45, 2021 ONCA, at para 45, "a trial judge's role as gatekeeper is not exhausted once a particular expert has been permitted to testify on the basis of their qualifications and the content of their report. Rather, the trial judge must protect the integrity of the process by ensuring that the expert does not overstep the acceptable boundaries in giving evidence. As, Doherty J.A. stated in Abbey, at para 62, it is essential that trial judges ensure both "[a] cautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted".
[57] Further, as noted by the Court in Parliament, at para 47, the fact that the expert has already been qualified as an expert by the Court does not end the enquiry: "The continuing gatekeeping role means that trial judges must not only continue to ensure that the expert's actual testimony does not overstep the appropriate scope of the expert evidence; they must also include ensuring that the expert's testimony continues to be independent in the sense that the expert does not become an advocate for the party by whom they are called".
[58] Finally, "the continuing gatekeeper role of a trial judge includes the continuation of the residual discretion to exclude evidence when they are not satisfied that the testimony's probative value exceeds its prejudicial effect: See Parliament at para 48, quoting Hourigan J.A. in Bruff-Murphy.
[59] The gatekeeping stage considers "whether the benefits in admitting the evidence outweigh any potential harm to the trial process. Where the probative value of the expert opinion evidence is outweighed by its prejudicial effect, it should be excluded." (R v. Bingley, 2017 SCC 12, [2017] 1 SCR 170, at para. 16).
[60] This stage takes into consideration the relevance, necessity, reliability, and absence of bias as outlined in White Burgess, and the potential helpfulness of the evidence.
[61] In the present case, as discussed above, Dr. Preyra's evidence is relevant, necessary, reliable, and absent of disqualifying bias. Further, Dr. Preyra has great knowledge and experience which renders his opinion useful, helpful, and necessary to the court in determining the issues.
[62] As for the prejudicial effect of the testimony, the Plaintiffs argue that facts relied upon by Dr. Preyra in forming his expert opinion are incendiary and unreasonable and are contradicted by credible material evidence before the court. In support of this argument the Plaintiffs rely on evidence that was filed with the Court during the course of the trial, some of which is admissible and some of which is not.
[63] The thrust of the Plaintiffs' argument is that Dr. Preyra made errors in assessing the evidence and these errors expose bias on his part and/or expose frailties in his opinion evidence. Specifically, the Plaintiffs take issue with the following evidence:
a. Dr. Preyra maintained that he was 100% certain that Ms. Owala and her family had not disclosed her aortic valve disease to the Coroner; and
b. Dr. Preyra maintained that he was certain that: Ms. Owala had never presented with chest pain at Southlake prior to October 17, 2013; had never disclosed her aortic heart disease to Southlake; that Dr. Makary had no access to her previous health records because they were not in Southlake's electronic health records; that Ms. Owala had never sought treatment for her aortic valve disease; and had never disclosed it to any other physician subsequent to her diagnosis in 2003.
[64] The Plaintiffs' argument that the basis of Dr. Preyra's opinion is based on falsehoods and a misconstruing of the evidence to the extent that the opinion is unduly prejudicial and/or evidences disqualifying bias, is not accepted by me.
[65] Unlike Parliament, this trial does not involve a jury and there is no danger that the fact finder will "readily accept an expert's opinion as a convenient basis upon which to resolve its difficulties": at para 44 quoting R. v. Marqurad, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at p. 248.
[66] Nor is there a danger that the fact finder will "be unable to make an effective and critical assessment of the evidence" or "abdicate its fact-finding role", as noted by Doherty J.A. in Abbey at para 90.
[67] I have had an opportunity to thoroughly review all testimony and all evidence properly admitted as evidence on this trial. I am perfectly poised to determine the facts in this case without abdicating my role as a fact finder to any of the expert witnesses who testified at this trial.
[68] In my view, the Plaintiffs' argument in this regard must fail.
[69] The probative value of Dr. Preyra's evidence outweighs any potential inherent prejudicial effect, none of which has been identified by me. Dr. Preyra's opinion evidence will assist in determining the appropriate standard of care applicable to Dr. Makary and on the issue of causation. The "gatekeeping" function of the court favours the admissibility of Dr. Preyra's evidence.
Additional Argument Raised by the Plaintiffs to Strike Dr. Makary's Evidence
Rule 53 – Acknowledgment of Expert's Duty
[70] In addition to the arguments raised alleging disqualifying bias, the Plaintiffs also argue that Dr. Preyra's failure to sign the Rule 53 Acknowledgment until one week following delivery of his first report is an incurable irregularity which should result in his first report and all testimony connected with the report in being expunged.
[71] Pursuant to Rule 53.03 of the Rules of Civil Procedure a party who intends to call an expert witness at trial shall, no less than 90 days prior to the pre-trial, serve on every other party to the action, a report, signed by the expert containing the information listed in subrule 2.1.
[72] Subrule 2.1 provides that various information shall be contained in the expert report including an acknowledgment of expert's duty (Form 53) signed by the expert. However, there is no requirement that Form 53 must be signed prior to or at the same time as the expert report. Further, no evidence was presented to establish that Dr. Preyra's expert report dated February 6, 2018, was not served together with Form 53 which was duly signed by Dr. Preyra on February 13, 2018. The mere fact that Form 53 was signed one week following the date of the report in no way invalidates the expert report or the testimony of the expert witness at trial. The expert is bound by Form 53 and his obligation to the court as an expert.
[73] The Plaintiffs' submission in this regard is entirely rejected by me.
Conclusion
[74] For the foregoing reasons, the plaintiffs' motion to strike the evidence of Dr. Ian Preyra is dismissed. Dr. Preyra is confirmed as an expert witness qualified to opine on the standard of care applicable to Dr. Makary as an emergency room physician and on causation.
Justice S.J. Woodley
Released: November 18, 2021