Boone v. O’Kelly, 2020 ONSC 6932 – Case Comment

Find out about a recent decision where the defendant’s expert’s evidence was excluded

This is a ruling on expert evidence by Beaudoin J of the SCJ. It determines the plaintiff’s motion to exclude the evidence of the defense’s expert witness, Dr. Burns, in its entirety. The defence sought an order dismissing the plaintiff’s motion and that, if Dr. Burns’ evidence is admitted, any concerns about it should go to weight. The ruling is a good opportunity for us to examine how the rules of expert evidence are applied.

The plaintiffs include Paul Boone (“Paul”), by his litigation guardian, and his parents, Elizabeth and Laurence Boone. The defendants included the surgeons. The case is their action for damages to Paul with respect to injuries he sustained during a heart surgery. Paul is 57 years old. On February 4, 2011, during a surgery to remove a filter that had been placed into an artery in his heart, his heart was punctured and blood flow was blocked to his spine and lower body. As a result, he was paralyzed in his lower extremities.

The background of the case is as follows. Paul was born with hydrocephalus (a condition involving the accumulation of fluid in the brain). A shunt was inserted into his spine to drain some of the fluid from his brain. At 11 years old, he developed scoliosis (curvature of the spine). He had a surgery to correct it and another surgery on his hamstring muscles. He developed kyphoscoliosis (extreme curvature of the spine). He had developmental delay. He resided with, and had some level of care from, his parents, but also had a measure of independence and was able to engage in a wide range of physical activities. On October 13, 2010, while staying at Lavonne Respite Care Centre, he had a serious fall causing a brain bleed. He had surgery to insert a filter to stop the brain bleed. He went to rehabilitation from December 2010 to January 2011. On February 4, 2011, he had the surgery in question. He thereafter was wheelchair bound, required constant care and had depression.

The main legal issue in the case is damages. The defendants admitted the issues of liability and causation. However, Paul’s damages and his parents’ FLA s. 61 claim are still in issue. The defense’s argument is that, because of Paul’s pre-existing condition, he would have found himself in this same condition within some years of the incident (the October 2010 fall).

The legal issue in the motion was whether the defense’s expert evidence should be admitted into the evidence. The plaintiffs’ position was that it should not, because it does not meet the legal requirements of expert evidence. They argued that it is not independent and impartial and that it is biased, unreliable and partisan. The defense’s position was that it should. They argued that it has significant probative value and that its probative value outweighs its prejudicial effect.

The court began its analysis by citing the expert’s duty (s. 4.1.01 of the Rules of Civil Procedure) and the requirements of expert reports (s. 53.03).

It cited the common law test, for admitting expert evidence, from R v. Mohan (SCC 1994):

• Is the expert evidence relevant?
• Is it necessary in assisting a trier of fact?
• Is there an exclusionary rule that applies to exclude the evidence?
• Is the expert properly qualified?

It cited the case White Burgess Langille v. Abbott Haliburton Co. (SCC 2015) for the proposition that the independence and impartiality of the expert are factors relevant to the second question in the inquiry. In addition, if the expert evidence is admitted, concerns about it can go to weight.

It cited additional case law that the test for admissibility of expert evidence applies at all stages, including after the expert has been qualified and is giving evidence in chief or cross-examination.

The court’s main reasons for granting the plaintiffs’ motion, and excluding the expert’s evidence, are supported by two different arguments.

The first is procedural. S. 53.03 sets out clear timelines for service of an expert report. Dr. Burns’ report was served within the timelines but his written report stated that Paul would have found himself in the same condition within 5-10 years of the incident whereas in oral testimony Dr. Burns changed it to 1-2 years, without notice and without adequate explanation for his change in opinion.

The second is methodological. The plaintiffs requested confirmation of records received by Dr. Burns prior to the preparation of his opinion. The list of documents was attached as Appendix A to his opinion. It included a Chronology written by his defense law firm for reference purposes only. Dr. Burns testified that he would have applied the same methodology in the preparation of his opinion as he would in preparation of an article or study for publication and peer review. He testified that he would not rely on a Chronology written by his defense law firm to form an opinion without referring to the source documents. On cross-examination, this last statement was proved incorrect. After a break, he revised his testimony and admitted that he did not have the pre-accident reports and that he had relied on the Chronology in preparing his opinion. He acknowledged that, in preparing his opinion, he did not follow the methodology he traditionally follows when preparing an article or study for publication.

The court concluded that (a) Dr. Burns failed in his duty to provide fair, objective and reliable evidence to the court, (b) that the probative value of his expert evidence is outweighed by its prejudicial effect and (c) it is excluded.

The takeaway lessons from this case are that the expert should review the entire medical file before writing their expert report and that any changes in opinion require proper notice and explanation.