Court File and Parties

COURT FILE NO.: CR-23-00000005 DATE: 2024/05/24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Applicant Respondent – and – Brian Nadler Respondent

Counsel: Robin Flumerfelt and Matthew Humphreys, for the Applicant Brian H. Greenspan, for the Applicant Naomi M. Lutes, for the Applicant Anna Zhang, for the Respondent

HEARD: April 24, 25, 26, 30, May 1, 2, 21, 2024

Ruling - Expert Opinion Evidence

Publication is banned pursuant to s. 517 (1) and 520(9) of the Criminal Code with respect to the evidence of the offences alleged against the RESPONDENT. Counsel may circulate these reasons, use them in court, and they may be published in Westlaw and similar legal publishing services.

A publication ban restricts the publication, broadcast or transmission of evidence taken at a pre-TRIAL MOTION until the accused is discharged or the JURY COMMENCES DELIBERATIONS.

Phillips J.

[1] Dr. Brian Nadler is charged with four counts of first-degree murder arising from the way he provided medical treatment to Mr. Albert Poidinger, Ms. Lorraine Lalande, Ms. Claire Briere and Ms. Judith Lungulescu. Dr. Nadler was working as a physician on the COVID-19 ward at the Hawkesbury General Hospital (HGH) during a particularly acute phase of the pandemic in March 2021. All four patients died within hours of each other on or about March 25, 2021.

[2] This is my ruling about the admissibility of proposed Crown expert opinion witness Dr. Mark Crowther. The anticipated evidence is presumptively inadmissible. The Crown bears the onus of rebutting that presumption on a balance of probabilities in accordance with the well-known criteria established in R. v. Mohan as recently refined by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co. 2015 SCC 23.

[3] It will be useful to begin by briefly setting out some facts relevant to the deaths and some evidence relating to the investigation of each one so as to understand the genesis of these charges.

[4] Albert Poidinger was 89 years old. He was admitted to the HGH on February 10, 2021, after a multi-week period of increasing confusion with delusions. Initially his worsening symptoms were thought to be secondary to a urinary tract infection and he was treated with antibiotics. Mr. Poidinger was evaluated by psychiatry and internal medicine and he was given a diagnosis of a "major neurocognitive disorder with delusional features". Recommendations were made and medications were prescribed to help manage his symptoms but his condition persisted. On March 3, 2021, in consultation with his substitute decision makers, Mr. Poidinger's focus of care was switched to palliative, or what the HGH calls "Category 4”.

[5] Category 4 refers to “comfort care only” which means no resuscitation, no transfer to the intensive care unit and discontinuation of investigative tests such as blood work. More specifically, it was decided that Mr. Poidinger's care was to be focussed on relieving distressing symptoms, maximizing comfort and quality of life and to allow for a natural death.

[6] After improving enough to be considered for discharge to a long-term care facility, Mr. Poidinger tested positive for COVID-19 on March 16, 2021. He was transferred to the COVID-19 ward whereupon he came under the care of Dr. Nadler.

[7] While he was initially asymptomatic, Mr. Poidinger began to suffer from his COVID-19 infection and by March 20, 2021 had developed fever and weakness. On March 23, 2021, his condition deteriorated further. For example, the medical records document that he was having frequent falls, requiring supplemental oxygen and was eating less. His heart rate, temperature and respiratory rate were all elevated and his oxygen saturation was decreased. On March 24, 2021 at about 5 p.m. Mr. Poidinger was found on the floor by his bed with an elevated temperature (subsequent post-mortem examination would reveal that he had sustained a fractured neck). On March 25, 2021, a nursing note made at roughly 7 p.m. indicates that Mr. Poidinger's clinical status had worsened over the course of the day. Nurses further reported that his eyes were continuously closed even as he responded to voices and his respiratory rate was too fast.

[8] Whether a miscommunication occurred will be sorted out at trial but, reportedly, on March 25, 2021 at about 9 p.m., Dr. Nadler informed family members that Albert Poidinger had died.

[9] Hearing this news, and on a basis that is now very contentious, the nursing staff formed a view that Dr. Nadler had prescribed medications that had hastened Mr. Poidinger's death. They reported their concerns to another physician, Dr. Michael D’Aquila, who reported them to the HGH Chief of staff, Dr. Julie Maranda. Without talking to Dr. Nadler, Dr. Maranda called the police and reported that a doctor at her hospital was murdering patients. Police immediately attended and Dr. Nadler was arrested for Mr. Poidinger's murder while still at his bedside.

[10] Once Dr. Nadler had been removed from HGH by police, Dr. D’Aquila took over the COVID-19 ward. It was immediately discovered that Mr. Poidinger was not, in fact, deceased.

[11] I consider it worth noting that, Dr. D’Aquila, in possession of Mr. Poidinger's medical chart, including a detailed history of what medications he had been given, did not order an immediate cessation of opioids or other drugs and nor did it occur to him or anyone that an opioid overdose antidote like Naloxone was called for. In the result, Dr. D’Aquila made only negligible changes to now-in-custody Dr. Nadler's orders.

[12] Albert Poidinger did indeed pass away on March 26, 2021, at 0048 hours.

[13] A post-mortem examination of Mr. Poidinger’s body was performed by Dr. Linnea Duke of the Eastern Ontario Regional Forensic Pathology Unit on March 31, 2021. In addition to a full assessment of all systems, organs and tissues, Dr. Duke considered the medications that Mr. Poidinger had been given. In her opinion, all medications were administered at levels that were not supratherapeutic. While she "cannot exclude the possibility that these medications exacerbated his already deteriorating clinical condition", Dr. Duke found that the results of the post-mortem examination, including all ancillary testing, “do not support the conclusion that this man died of mixed drug toxicity". In the end, Dr. Duke concluded that Mr. Poidinger's death was caused by a pulmonary infection from the COVID-19 virus, noting that his baseline medical conditions, including hypertension, dilated cardiomyopathy and diabetes are conditions that increase the risk of mortality from COVID-19.

[14] It was apparently because Dr. Duke had left the door open for the "possibility" that the regimen of medications prescribed by Dr. Nadler had exacerbated an already deteriorating medical condition and thereby hastened death that the authorities chose to have the Poidinger death reviewed by another expert. Dr. Mark Crowther was chosen to review the treatment given to Mr. Poidinger as well as 5 other patients of Dr. Nadler who had died around the same time. Dr. Crowther is a hematologist who is a Professor and Chair of the Department of Medicine at the McMaster University Faculty of Health Sciences.

[15] Dr. Crowther formed the opinion that in Mr. Poidinger's case, and in respect to three of the other 5 patients, it was the administration of narcotics and sedatives that caused death. Dr. Crowther proposes that the post-mortem examinations performed by the forensic pathologists are flawed because they were too narrowly focussed. In his opinion, the fact that the forensic toxicology analyses did not find supratherapeutic levels of medications is not determinative since the administration of medications to a person in the dying process can themselves cause death by respiratory depression "in a predictable and dose dependable fashion".

[16] It is my understanding that it is on the basis of Dr. Crowther's opinion that the Crown's case is constructed. In a nutshell, the prosecution proposes that the post-mortem forensic pathology opinions are misleading because they fail to properly consider each patient's overall treatment history and the full scope of the interventions by Dr. Nadler. Once such holistic analysis is performed as Dr. Crowther performed it, submits the Crown, a case for murder is made out four times over.

[17] I will now set out some of the circumstances relevant to understanding the deaths of the remaining three alleged victims.

[18] Lorraine Lalande was a 79 year old woman with progressive dementia. Her medical history also included poorly controlled diabetes, high cholesterol and a cerebral artery stroke. Ms. Lalande was admitted to the HGH on February 18, 2021 for increasing confusion, recurrent falls, and inability to manage activities of daily living. During her admission, there was an outbreak of COVID-19 in the hospital and on March 17, 2021 she tested positive for the virus. Although initially symptom-free, she eventually developed signs and symptoms of COVID-19 infection. Her medical condition continued to deteriorate and on March 24, 2021, she was transitioned to Category 4 comfort/palliative care. On March 24, 2021, at 2130 hours, her last medications were given in accordance with Dr. Nadler's direction. She was found to be without vital signs at 00:15 hours on March 25, 2021 and was pronounced dead 5 minutes later.

[19] A post- mortem examination of Ms. Lalande's body was performed on March 30, 2021 by forensic pathologist Dr. Charis Kepron. Consistent with the policy where Dr. Kepron works at the Eastern Ontario Regional Forensic Pathology Unit, her opinion and report were peer reviewed.

[20] In addition to examining Ms. Lalande's body both visually and microscopically, Dr. Kepron considered what was conveyed to her about Ms. Lalande's medical history and her course in hospital. Dr. Kepron weighed toxicological evidence about what medications were operative in Ms. Lalande's system at the time of her death. In Dr. Kepron’s opinion, the substances in question were not present at levels that would be considered supratherapeutic. Her conclusion on that front, that the substances in question were administered within a therapeutic range, was arrived at through her own experience-informed judgment as well as a report to that effect from a toxicologist from the Centre of Forensic Sciences (CFS). In Dr. Kepron's ultimate opinion, the cause of Ms. Lalande's death was COVID-19 viral pneumonia in association with pulmonary emphysema, neurodegenerative and cerebrovascular disease, insulin- dependent diabetes mellitus and a diffuse astrocytoma of the right cerebral hemisphere (otherwise known as a brain tumour).

[21] Claire Briere was 80 years old. She had a significant medical history with pulmonary fibrosis, hypertension, chronic kidney disease and gastro-oesophageal reflux disease. She presented to the HGH on March 4, 2021, complaining of increasing shortness of breath. It was believed that she was experiencing an exacerbation of her pulmonary fibrosis and had perhaps developed a pulmonary thromboembolism. After some treatment, preparations were being made to discharge her when a COVID-19 outbreak was declared and she tested positive for the virus on March 19, 2021. Ms. Briere remained clinically stable for several days then went into respiratory distress on March 23, 2021. She continued to deteriorate and died just after midnight on March 25, 2021.

[22] A post-mortem examination was performed by Dr. Kepron of the Eastern Ontario Regional Forensic Pathology unit on March 30, 2021. Dr. Kepron’s opinion and accompanying report were subject to peer review. Dr. Kepron was advised that concerns had been raised by police that Dr. Nadler may have administered medications that hastened Ms. Briere’s death. After examining Ms. Briere’s entire body both visually and microscopically as well as considering the patient history and the toxicological results of blood testing for the presence of opioids and other medications, Dr. Kepron formed the opinion that Ms. Briere’s death was caused by COVID-19 pulmonary disease in association with pulmonary emphysema and hypertensive heart disease. Dr. Kepron observed that although toxicology testing revealed the presence of hydromorphone, morphine, amitriptyline and acetaminophen, all those medications were present at or below their respective therapeutic ranges.

[23] Judith Lungulescu was 93 years old. In 2021, she was a resident at a retirement home in Hawkesbury. Ms. Lungulescu had a history of dementia, anemia, hypertension, chronic kidney disease and recent onset of atrial fibrillation. On January 2, 2021, she was taken to the HGH emergency room after an apparent fall. On January 7, 2021, she was observed to be short of breath and was diagnosed with pneumonia. Her overall condition gradually declined. On March 13, 2021, she tested positive for COVID-19. Soon, after consultation with her daughter, it was decided to pursue "Category 4" comfort care only. Ms. Lungulescu declined further and died on March 25, 2021.

[24] A post-mortem examination of Ms. Lungulescu's body was performed by Dr. Alfredo Walker of the Eastern Ontario Regional Forensic Pathology Unit on March 29, 2021. As is the practice of that unit, Dr. Walker's report was peer reviewed. In addition to Ms. Lungulescu's body, Dr. Walker considered the entirety of her medical history and experience in hospital, including the effect of the medications she had been given by Dr. Nadler.

[25] In Dr. Walker's opinion, the cause of Ms. Lungulescu's death was COVID-19 pulmonary disease, along with ischemic and bi-valvular heart disease as well as Alzheimer's and Cerebrovascular disease. Importantly, Dr. Walker reports that “holistic interpretation" of the results of the toxicological analyses does not indicate that Ms. Lungulescu died as a consequence of either the independent or synergistic toxicity of the drugs she had been given. As he put it: "specifically, the results do not support that death had resulted from administration of high doses of dilaudid (hydromorphone), versed (midazolam), scopolamine (hyoscine) or other medications”.

[26] As I have mentioned, Dr. Crowther takes a very different view of the causes of death of Mr. Poidinger, Ms. Briere, Ms. Lalande and Ms. Lungulescu than the forensic pathologists. In Dr. Crowther's view, there is much to be made in respect of the nature and dosages of the various medications administered by Dr Nadler. Dr. Crowther contends that Dr. Nadler acted intending to shorten the life of the four individuals in question. He asserts that "All four patients received doses of opioids and other sedatives that were significantly larger than those medically indicated" and that "Any of these four patients might have survived to hospital discharge if they had not received care from Dr. Nadler", and that "their death was directly contributed to by a combination of excess sedative administration..."

[27] I observe that not only is Dr. Crowther in disagreement with the forensic pathologists, several other witnesses called on this "experts voir dire" insist that his opinion is completely wrong. Dr. James Downar, a Professor of palliative care at the University of Ottawa, Dr. Marco Sivilotti, a Professor of Medical Toxicology at Queen's University and Dr. Laura Hawryluck, an intensive care physician and Professor of Critical Care Medicine at the University of Toronto, all testified to their vehement disagreement with Dr. Crowther's opinion.

[28] I point this out only to create an opportunity to say this: I intend to handle this part of things with great care. First, I must keep in mind that the fact that experts disagree is for the jury to deal with not me. In other words, I must resist getting drawn into analysing which expert opinion I find most compelling, in an attempt to decide the battle between Dr. Crowther on one side and Dr. Duke, Dr. Kepron Dr. Walker, Dr. Downar, Dr. Sivilotti and Dr. Hawryluck on the other. The question of whether Dr. Crowther’s expert opinion is admissible is not to be decided on relative terms, on the basis of how his opinion stacks up when compared to the opinions of others. At the same time, however, I find the other opinions to be useful when I consider the sort of expertise that is applicable to the particular circumstances of this case. In my view, this question of the sort of expertise that is called for in a given instance can materially affect the determination of whether a proposed witness is “properly qualified”.

[29] I turn now to what I see as the main heading of the required analysis, whether Dr. Mark Crowther is a properly qualified expert.

[30] The concept of "properly qualified expert" is necessarily flexible and case-specific. It is not as simple as just determining whether someone is extraordinarily educated or experienced in a general or approximately relevant way. The qualifications of experts must be assessed with focus, in relation to what issue or issues the expert is proposed to provide evidence about. The connectedness of the expertise to the material issues in a trial drives the expert's probative value and thus bears heavily on the question of admissibility. I find this disciplined focus to be particularly important when dealing with an impressive medical doctor, as here. Of course Dr. Crowther is qualified and has impressive expertise. The question is whether he is properly qualified - that is to say whether he has expertise in the specific subject matter about which his evidence is proposed to be tendered.

[31] The core of the Crown's proposition is that while narrowly focussed analyses could result in innocent conclusions about the deaths here, more holistic analyses point to the opposite. As the prosecutor said in submissions, the best expert for this case would be a "hospitalist", a medical practitioner who could speak in a comprehensive way that fully contextualizes the treatment decisions made by the accused.

[32] I agree that context is all-important. The context of this case involves the March 2021 treatment of COVID-19 in a palliative care hospital setting involving the use of opioids to address subjectively perceived pain and other forms of distress.

[33] Dr. Crowther is an accomplished hematologist. He is not a forensic pathologist or a toxicologist. He does not practice pathology, has no training as a forensic pathologist, has no Royal College accreditation, qualification or certification in pathology and has never conducted an autopsy.

[34] Similarly, Dr. Crowther is not Royal College certified in palliative care, is not affiliated with any professional association related to palliative care, has no publications in palliative care, has no teaching experience in palliative care, has not recently attended a course on palliative care and could not remember the details of any palliative care lectures he attended over the last two or three years. Simply put, Dr. Crowther lacks experience providing palliative care services. While he has "worked very closely" with the palliative care team, has "been involved in discussions" about when palliative care principles should apply, and shares hematology patients with the palliative care team, he does not provide palliative care services or administer palliative medications. In the last year, he could only recall one or two occasions where he prescribed palliative medications, and only after consulting and receiving advice from the palliative care team.

[35] In my judgment, the evidence falls short of establishing that Dr. Crowther has expertise applicable to the circumstances of this particular trial regarding the treatment of COVID-19 patients or the COVID-19 virus generally. He is neither an immunologist, infectious disease expert, nor an acute care specialist. I agree that Dr. Crowther was vague in explaining what his experience was in treating COVID-19 patients. His experience appears to be more of a consultative nature for the treatment of COVID-19.

[36] Is Dr. Crowther a hospitalist? I shall begin my answer to that question by revealing that I am uncomfortable with the very term “hospitalist”. It seems to be an American invention with no accepted definition. There is no such designation recognized by the regulatory body for Ontario physicians that would allow for anyone to objectively qualify as one by way of any clear criteria. The best the Crown could do was to define a hospitalist as a doctor who works in a hospital, who monitors treatment, orders tests and examines patients. While that is fair enough, it seems like an overbroad “catch-all” definition that runs risk of creating expertise that is not properly rooted or established upon an actual foundation. I cannot see how a hospitalist would have insight into the cause of a particular patient’s death akin to a forensic pathologist, for instance. Equally, I have difficulty seeing how a hospitalist, as defined by the Crown, could appreciate the pharmacokinetics and other effects of particular medications as would a toxicologist whose specialty is focussed on that very thing. The problem is, the designation by the court of a particular doctor being a “hospitalist” and thus able to view the landscape from some sort of higher plane than those with actual deep expertise in particularized fields runs risk of putting judicial gloss on a witness who is not actually properly situated to opine in the fields in question, separately or in aggregate.

[37] I must be careful not to get too hung up, however, on credentials and the nomenclature attributed to this or that position in the medical field. There is no required status or credential that one must possess to opine about cause of death, for instance. Sometimes, the circumstances are such that a general practitioner or even a nurse or paramedic could opine about that issue. That said, no one would such suggest that the circumstances here are so straightforward as to allow for that sort of possibility. The evidence and issues in this case are nuanced and complex, requiring deep and focused expertise. The question remains: is Dr. Crowther an expert who is properly positioned to opine in a holistic way on Dr. Nadler's treatment of the patients listed on this indictment? I come to a negative answer on that question.

[38] I got the sense through his evidence that, like a lot of accomplished professionals who have risen through the ranks to positions of leadership in administration, education and research, Dr. Crowther is more than a bit removed from the trenches. I was struck by the difference in the evidence he gave about COVID-19 and its treatment with that of Drs. Hawryluck, Downar and Sivilotti, three physicians who were clearly seized with bedside COVID-19 care throughout the pandemic in a sustained and focused way. Dr. Crowther spoke repeatedly about participating in “rounds”, a process that I understood to mean his involvement in a group of more senior doctors who would circulate to mentor, consult, advise and guide. The essence of his COVID-19 experience seems to be of a nature of a consultant rather than a full-time and focused medical grappler with the disease. His grasp of palliative care principles was only mostly correct, according to Crown palliative care expert Dr. Leonie Herx. For instance, Dr. Crowther did not know that shutting off a dying patient’s pacemaker is sometimes done in the end-of-life care setting to ease the prolongation of suffering.

[39] I have a few times now referred to Dr. Crowther as a hematologist. That seems to be a fair assessment of the focus of his life’s work. However, I worry in the circumstances that by calling him a hematologist I may seem dismissive or disrespectful. I mean to do nothing of the sort. The man’s professional accomplishments are nothing short of awe-inspiring.

[40] In fact, in a very real sense, Dr. Crowther's extensive curriculum vitae is a problem. He is most impressive. He has distinguished himself in his field and he has with obvious justification been put in various important educational and leadership positions throughout his admirable career. Dr. Crowther presents in the witness box as highly articulate, self-assured, engaging and compelling, kind of like an elder statesman of medicine. Even though it seems odd to hold a witness' formidable credentials against him, this is a case where significant risk exists that the proposed expert's general impressiveness will give his opinion evidence undeserved weight as a result of signal-boost from the illustriousness of his achievements and the gravitas with which he accordingly presents himself. It is not that Dr. Crowther does not have expertise. It is that his expertise does not fit this case, given its particular circumstances and issues, and his opinion will likely get unfairly augmented by the extent of his impressive, but fundamentally inapplicable achievements.

[41] In the unique and particular circumstances of this case, the Crown has failed to establish that Dr. Mark Crowther is a properly qualified expert. Dr. Crowther’s anticipated expert opinion evidence is inadmissible.

Justice Kevin B. Phillips Released: May 24, 2024