Court File and Parties

COURT FILE NO.: CV-17-567155 DATE: 20220127 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Susan McFadden and David McFadden, Plaintiffs AND: David J. Psutka, Defendant

BEFORE: D.A. Wilson J.

COUNSEL: Monica Zamfir, for the Plaintiffs Andrew Lundy, for the Defendant

HEARD via Zoom: January 25, 2022

Endorsement

[1] This is a dental negligence case which I am case managing pursuant to the One Judge Pilot Project. I ordered a timetable for the delivery of expert reports. The Plaintiffs have delivered several expert reports. In December 2021, the Plaintiffs delivered the expert report of Dr. Yanney dated December 8, 2021. At the subsequent case conference, counsel for the Defendant objected to the contents of Dr. Yanney’s report and requested a case conference at which submissions could be made about the propriety of the report and whether it should be struck at this stage. Mr. Lundy asks for an order that the report of Dr. Yanney be struck or alternatively, revised to delete any opinion evidence relating to the 1991 surgery. He also submits that I order that the Plaintiffs not be permitted to advance a new theory based on the assertion that the Plaintiff never had a silastic implant placed in her right temporomandibular (“TM”) joint.

[2] Briefly, by way of background, this action claims damages arising from the dental treatment provided by the Defendant from 2012 onwards, including surgeries undertaken in 2013, 2014 and 2015. It is alleged the treatment rendered by Dr. Psutka was negligent and as a result, the Plaintiff has suffered and continues to suffer damages. In the Fresh As Amended Statement of Claim, it states that Ms. McFadden underwent jaw surgery in 1988 by Dr. Dobrovolsky by which he removed some or all of the meniscus and implanted silastic material into the right temporomandibular jaw joint. The Plaintiff commenced being treated by the Defendant in 1991 and he performed jaw surgery in the form of an osteotomy with bone graft to correct her malocclusion. It is not alleged in the Statement of Claim that the treatment prior to 2012 was negligent.

[3] Dr. Yanney is an oral and maxillofacial surgeon who practices in Oregon. He was asked to provide his opinion of the treatment provided by Dr. Psutka from January 2012-January 2015. In his report, Dr. Yanney states that he does not believe the Plaintiff had a meniscectomy in 1988, based on his review of the imaging and reports. He states that the decision to perform the osteotomy surgery in 1991 was negligent. Dr. Yanney expresses the opinion that further imaging and treatment ought to have been done in 1991 following the osteotomy, and that an arthroscopic repair should have been done. Had this suggested path been taken, Dr. Yanney opines that the Plaintiff would not have required further surgery.

[4] Dr. Yanney goes on to offer his opinion on the surgeries performed in 2013, 2014 and 2015 and he states why he is of the view that Dr. Psutka was negligent in the performance of these surgeries.

[5] However, he offers the following opinion: “On thorough review of the patient’s records, it is clear that the patient’s suffering and severe chronic pain would have all been avoidable if proper decisions had been made and proper procedures had been done starting back in 1991. Failing to correct the patient’s situation properly in 1991 was the beginning of an unfortunate journey, which led to further improper treatment recommendations, and improper surgeries which were below the standard of care.”

[6] The role of an expert is a very important one, particularly in a professional negligence claim. The Court looks to the expert to inform us about the applicable standard of care and whether the actions of the Defendant(s) met that standard of care. Rule 53.03 of the Rules of Civil Procedure is quite specific about the contents of an expert’s report. It requires an expert to set out in a written report the nature of the opinion that was sought on each issue and the expert’s opinion on each issue along with reasons.

[7] In this case, Dr. Yanney has offered his opinion on matters that counsel did not ask him to address. What is at issue in this lawsuit is the treatment provided by the Defendant from 2012 onwards. The issue of whether the treatment rendered by Dr. Psutka in 1991 was negligent is not in issue in this lawsuit so Dr. Yanney’s opinion on that issue is irrelevant.

[8] In his review of the records, Dr. Yanney has arrived at a conclusion that is not contained in the evidentiary record thus far: that the Plaintiff did not have a silastic implant inserted in 1988 which was later removed. He offers his opinion, which is rooted in that finding, that the 2015 surgery should not have been undertaken. Ms. McFadden’s evidence at her discovery was that she had a silastic implant placed in her right temporomandibular joint and it was later removed: other doctors have noted this in their records. I am not certain why Dr. Yanney included his own conclusion in his expert report that contradicted the evidence. The Statement of Claim does not plead the hypothesis suggested by Dr. Yanney and as a result, that theory cannot be advanced in this litigation.

[9] This action was commenced in 2017, 5 years ago. That is more than sufficient time for the Plaintiffs to garner their evidence and obtain their expert opinions. The discoveries have taken place and the evidence of the Plaintiff and of Dr. Psutka are available. It is unclear to me why the report of Dr. Yanney dated December 8, 2021 was served by counsel for the Plaintiffs given that it includes irrelevant opinion evidence. In the materials counsel have each submitted a redacted form of the report of Dr. Yanney for my review.

[10] It is not the function of the Court to determine what the contents of an expert report should be. It is for counsel to put the evidence before the Court. Clearly, Dr. Yanney cannot offer opinion evidence on matters that are not before the Court for adjudication in this lawsuit. If he includes his own views of the evidence in the case as foundations for his expert opinion, that is his prerogative and these views are subject to cross examination at trial. I am not prepared to review the report of Dr. Yanney and provide my own views on what is appropriate and what is not. The issue of the treatment by Dr. Psutka and others prior to 2012 is not alleged in the Statement of Claim to have been negligent and as a result, the Plaintiffs cannot call evidence at trial on this issue. As a result, the experts retained by the Plaintiffs cannot in their written reports provide opinions on whether the treatment provided to Ms. McFadden prior to 2012 was negligent.

[11] Counsel for the Plaintiffs is directed to obtain a new report from Dr. Yanney that offers opinion evidence only on the treatment of the Defendant from 2012 onwards. Ms. Zamfir advised that she believed she would be able to obtain the report by February 28, 2022. A further case conference will take place on March 3, 2022 at 11:30 am.

Date: January 27, 2022