Court File and Parties

2023 ONSC 4097 Court File No.: CV-4405-00 and CV-18-4440-00 Date: 2023 05 09

Ontario Superior Court of Justice

B E T W E E N:

KENISHA DESMOND Plaintiff Lisa Bishop, for the Plaintiff

- and -

EVAN HANNA and RONETYA YOUSUF Defendants Keith Smockum, for the Defendants

Heard: May 15, 2023

- and -

B E T W E E N:

SHIAN HENRY Plaintiff Lisa Bishop, for the Plaintiff

- and -

EVAN HANNA and RONETYA YOUSUF Defendants Keith Smockum and S. Desai, for the Defendants

Heard: May 15, 2023

NOTE: Not to be Uploaded to any Public Database or Released Publicly Until the Jury has Rendered its Verdict.

Trial Ruling #1: Re: Leave to Plaintiff to Call More Than Three Medical Experts Under s. 12 Evidence Act

Trimble J.

The Motion

[1] This trial is a personal injury trial arising from a motor vehicle accident. The parties estimate that it will take approximately 8 weeks, before a jury.

[2] After we selected the jury yesterday, the Plaintiffs moved for leave to call more than three experts, each.

[3] The Plaintiffs wish to call the following experts: a. Dr. Neal Wesitreich, Psychiatrist b. Dr. Angela Mailis, Chronic Pain Specialist c. Dr. Michael West, Orthopedic Specialist d. Dr. Romeo Vitelli, Psychologist e. Ms. Yvonne Pollard, Future Cost of Care f. Ms. Kristin Demaline, Economic Loss Expert

[4] Re: Ms. Desmond: a. Dr. Steve Blitzer, Chronic Pain Specialist b. Dr. M. Uri Wolf, Psychiatrist c. Dr. Veronica Kekosz, Physiatrist d. Dr. Michael West, Orthopedic Specialist e. Dr. Romeo Vitelli, Psychologist f. Ms. Yvonne Pollard, Future Cost of Care g. Ms. Kristin Demaline, Economic Loss Expert

[5] The Defence opposes calling all of the medical experts. They have no issue with respect to the economic experts or occupational therapists.

[6] All experts are medical-legal experts - “hired guns” - retained expressly for the trial of this action. None of the impugned expert are treating physicians.

The Positions of the Parties

[7] The Plaintiffs assert that the experts are all necessary for the proper presentation of the Plaintiffs’ case and that there is no overlap in their anticipated testimony. Each speaks from his or her own specialty, without overlap between those specialties.

[8] The Defence asserts that the number of experts the Plaintiffs wish to call at trial are duplicative, and that it is unnecessary to have more than one expert give evidence in a particular area.

The Law

[9] Section 12 of the Evidence Act, R.S.O. 1990, c.E.23 provides that a party is entitled, as of right, to call three experts. Leave is required for more.

[10] The criteria for granting leave to call more than three experts include: (a) Whether the opposing party objects to leave being granted; (b) The number of expert subjects in issue; (c) The number of experts each side proposes to have opine on each subject; (d) How many experts are customarily called in cases with similar issues; (e) Whether the opposing party will be disadvantaged if leave is granted because the applying party will then have more experts that the opposing party; (f) Whether it is necessary to call more than three experts in order to adduce evidence on the issues in dispute; (g) How much duplication there is in the proposed opinions of different experts; and (h) Whether the time and cost involved in calling the additional experts is disproportionate to the amount at stake in the trial. (see: Burgess (Litigation guardian of) v. Wu [2005] O.J. No. 929, S.C.J.).

[11] While the Plaintiffs have the right to put their case forward as they see fit, this right is not without restriction. Justice D. Ferguson said in Gorman v. Powell, [2006] O.J. No. 4233 (S.C.J.): Longer trials caused by calling unnecessary experts use up scarce resources and deny early trials to other litigants. To ignore the policy underlying s. 12 is contrary to the modern philosophy of civil litigation which is set out in Rule 1.04…to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[12] Section 2 of the Evidence Act is restrictive, intended to limit the number of experts who testify at a trial. Simply because an expert has authored a report that complies with the requirements under the Rules of Civil Procedure, R.R.O. 1990, reg. 194 does not automatically entitle a party to call that individual to give expert opinion at trial. The evidence must be necessary and not repetitive of other testimony from other experts (see: Hoang v. Vicentini, 2012 ONSC 1066 (S.C.J.), para 11 to 12).

[13] The path of least resistance - to admit evidence then compensate for its weaknesses by attaching less weight - is an abdication of the gatekeeping function of the judge (see: Dulong v. Merrill Lynch Canada (2006), 80 O.R. (3d) 378 (Ont. Sup. Ct.)). The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties can go at the end of the day to weight rather than admissibility (see: R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600).

[14] The Plaintiff must establish the four admissibility criteria from R. v. Mohan, [1994] 2 S.C.R. 9: a. relevance; b. necessity in assisting the trier of fact; c. the absence of any exclusionary rule; and d. a properly qualified expert.

[15] Relevance is a question of law decided by the trial judge. Necessity refers to the assistance to the court in determining an issue that the court lacks expertise to determine absent the expert. The evidence must not be disqualified by an exclusionary rule. The expert must be qualified, and the expertise acquired through study or experience (see: Davies v. The Corporation of the Municipality of Clarington, 2016 ONSC 1079, at para. 15).

Analysis

[16] The use of experts in personal injury cases has run amok. The strategy appears to be to lead evidence from every possible specialty to the effect that the Plaintiff is injured or disabled. Litigation costs continue to climb. Litigation becomes more and more inaccessible. The guidance provided by Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 that a party cannot expect to call every witness they want in a civil trial even if that witness may have relevant evidence to give the court, is being ignored. As Karakatsanis J. said in Hryniak at para. 24: However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. The full trial has become largely illusory because, except where government funding is available, ordinary Canadians cannot afford to access the adjudication of civil disputes. The cost and delay associated with the traditional process means that, as counsel for the intervener the Advocates’ Society (in Bruno Appliance) stated at the hearing of this appeal, the trial process denies ordinary people the opportunity to have adjudication. And while going to trial has long been seen as a last resort, other dispute resolution mechanisms such as mediation and settlement are more likely to produce fair and just results when adjudication remains a realistic alternative.

[17] The obligation of the Court is to prevent the introduction of duplicative evidence that tends to lengthen the trial unnecessarily. This trial is projected to take 8. The trial judge must ask “is this expert’s evidence necessary”? Will it add anything to what is before the Court? Alternately, is it merely “piling on?” (see: Davies, supra, para 25, 27, 29).

[18] Further, in a jury case, the Trial Judge must also ask whether the duplicative evidence will assist the jury it its task?

Application of Principles

[19] In this motion, the only issue is whether I should grant leave to the Plaintiffs to call more than three medical specialists each under s. 12 of the Evidence Act. The defence does not have an issue with the economic experts or occupational therapists.

[20] I have had the benefit of an extensive medical brief and brief of C.V.s with respect to each of the Plaintiffs.

[21] The onus is on the plaintiff to establish the necessity of calling more than three experts; that is, they must establish the relevance and admissibility of the evidence and that they require more than three experts. The plaintiffs have not met their onus.

1) Ms. Desmond

[22] There is unnecessary overlap and duplication between the experts in the following groups of experts. I grant leave to call one doctor from each group.

a) Dr. Blitzer, Dr. Kekosz, and Dr. West

[23] Dr. Blitzer’ specialty is in emergency medicine and trauma, chronic pain management, and rehabilitation. Dr. West’s specialty is in orthopedic surgery. He has extensive training in that respect in rehabilitation as well. Dr. Kekosz is a physiatrist, a discipline focussing on physical and rehabilitation medicine, the evaluation and management of patients with neuromusculoskeletal injuries including whiplash, mild traumatic brain injuries, chronic soft tissue pain syndromes, and work-related in injuries.

[24] All three doctors reach the same diagnoses with respect to injuries to Ms. Desmond’s cervical spine, trapezius muscles, thoracic spine, lumbar spine/low back, knees and shoulders. All diagnosed chronic pain in these areas.

[25] In my view their opinions are wholly duplicative. Any differences in their specialties are not so significant as to warrant a separate opinion from each.

[26] All three diagnosed posttraumatic headaches, anxiety, stress, depression, sleep interruption. Dr. Blitzer adds a loss in concentration and cognition. Dr. Kekosz adds adjustment disorder with mixed anxiety and mild depression, but in doing so appears to be merely reporting on the consensus in the medical file.

[27] Based on their C.V.s, none of these experts is qualified to make these psychiatric/ psychological diagnoses.

b) Dr. Wolf and Dr. Vitelli

[28] Dr. Wolf is a psychiatrist with a specialty is in geriatric psychiatry with certification in behavioural neurology and neuropsychiatry subspecialties. He has a full-time appointment in psychiatry at the Baycrest geriatric health Institute and the Baycrest memory and related disorders clinic. He also maintains a general adult psychiatry practice.

[29] Dr. Vitelli is a psychologist, with confidence in clinical neuropsychology and forensic psychology.

[30] Both of these doctors administered the same neuropsychological tests including the REY-15 Item test, the Beck Anxiety Inventory, the Beck Depression Inventory – II, Trauma Symptom Inventory, and Pain Patient Profile. Dr. Wolf also administered the M-FAST and Patient Health Questionnaire (looking at depression), and the GAD – 7 Self-report Questionnaire (looking at anxiety).

[31] Dr. Wolf diagnosed an adjustment disorder with anxiety and depressed mood (chronic) and somatic symptom disorder with pain (chronic). Dr. Vitelli concurred in the adjustment disorder and more broadly, diagnosed chronic pain.

[32] The opinions expressed by these two doctors are wholly duplicative. The differences in specialties between Drs. Wolf and Vitelli is not so different as to warrant receiving separate opinions. Indeed, their investigation is virtually the same, as are their diagnoses.

2) Ms. Henry

[33] There is unnecessary overlap and duplication between the opinions of Drs. Mailis, Dr. Westreich, and Dr. Vitelli. I grant leave to call one of them.

[34] Dr. Mailis is a physiatrist with an extensive C.V. in chronic pain and pain management, education, and research, to clearly with pain arising from injury or dysfunction of the nervous system. She founded the trial Western Hospital pain clinic and is one of the leaders in this field. Her opinion, however, is predominantly psychiatric. She indicates that Ms. Henry’s mechanical back pain and tension headaches are minor. Dr. Mailis opines that Ms. Henry’s psychiatric disorders of somatic symptom disorder with pain (chronic) an adjustment disorder with anxiety and depression (chronic) are her debilitating accident related disorders.

[35] At page 4 of her report Dr. Mailis says that since 1994 she has used the DSM5 classification system for diagnosis of pain conditions despite the fact that she is not psychiatrist. She provides the titles of several peer-reviewed publications which she says indicate her familiarity with the use of the DSM5 system.

[36] It is unclear to me, and no submissions were made to me, about the extent to which Dr. Mailis has acquired expertise in the use of the DSM diagnostic system or with respect to her ability to make psychiatric or psychological diagnoses, other than her assertion of this ability. On the face of it, however, such diagnoses are out of her specific field.

[37] I want to make it clear that in making the above comments I am not expressing any opinion or conclusion on whether Dr. Mailis’ opinion is admissible. I leave that for another day.

[38] I have reviewed Dr. Vitelli’s qualifications as a psychologist, above. As with Ms. Desmond, Dr. Vitelli administered to Ms. Henry a number of tests including REY-15 Item test, the Beck Anxiety Inventory, the Beck Depression Inventory – II, Trauma Symptom Inventory, and Pain Patient Profile.

[39] Based on his interview, document review, and testing, Dr. Vitelli noted that Ms. Henry experienced pain in her neck, back, shoulder, left knee, and right leg, in addition to constant ringing in her left ear, along with complaints of pain, depression, fatigue and anxiety. He diagnosed adjustment disorder with mixed anxiety and depressed mood (chronic) and chronic pain associated with psychological factors and the general medical condition. In addition, he diagnosed driving phobia.

[40] Dr. Westreich is an assistant professor in the Department of psychiatry at Sunnybrook Hospital, more specifically in the Department of Child and adolescent psychiatry where he is the director of the adolescent and young adult traumatic brain injury clinic.

[41] Dr. Westreich performed the tests that Dr. Vitelli conducted, adding a MoCA Examination and M-FAST test.

[42] Based on his interview, document review, and testing, Dr. Westreich determined that Ms. Henry was not malingering under the DSM5 malingering diagnosis but agreed with Dr. Vitelli that Ms. Henry suffered from an adjustment disorder with anxiety and mood symptoms as well as somatic symptom disorder with predominant pain. Both of these he diagnosed to be chronic.

[43] Setting aside any finding with respect to Dr. Mailis’ ability to give her psychiatric/psychological opinion, the opinions of Drs. Mailis, Westreich, and Vitelli are duplicative. While Dr. Mailis’ specialty is in physical medicine as opposed to psychiatric or psychological medicine as the other two doctors, the opinion Dr. Mailis expresses is psychiatric or psychological. Accordingly, the with the opinions being wholly duplicative, there is not sufficient difference between the specialties to make the opinions separately admissible.

Trimble J. Released: May 9, 2023