Do Juries Have Capacity to Understand Concept of Chronic Pain - Ismail v. Fleming, 2018 ONSC 6780 (CanLII)

November 24, 2020, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Date of Decision: November 13, 2018

Heard Before: Justice I.F. Leach

PLAINTIFF’S MOTION TO STRIKE JURY NOTICE: should jury be removed on the basis that a judge would better understand the concept of chronic pain; decision that a properly instructed jury is well capable of comprehending the concepts presented

The plaintiff in this personal injury action claimed substantial damages said to have resulted from a 2009 motor vehicle accident, in respect of which liability has been admitted. In particular, she alleged that she developed persistent and recurring chronic pain, depression, sleep disruption, fatigue, and cognitive difficulties which rendered her incapable of working and substantially interfered with her daily activities of living. She also had substantial claims for general damages, future care costs, and future income loss.

The defendants dispute the assertions that the plaintiff has been disabled by the accident-related injuries and challenge the quantum of damages sought. A lengthy civil trial ended with a declaration of a mistrial.

At the start of trial, the jury were excused from time to time to allow for the argument and adjudication of five preliminary motions including a motion brought by the Plaintiff to have the jury removed on the basis that a judge would better understand the concept of chronic pain than a jury. Justice Leach dismissed the motion on the following basis.

Justice Leach reviewed the general principles for such a decision, along with the parties’ respective arguments which were as follow:

• Plaintiff counsel argued that the jury notice filed by the plaintiffs should be struck on the grounds of complexity and injustice. Plaintiff counsel focused in particular on the suggested inability of a civil jury to understand and accept the reality of chronic pain, and an expectation of injustice that accordingly would flow from allowing the plaintiff’s claims to be tried by a civil jury.
• Defence counsel argued that there was nothing unusual or sufficiently complex about this case to warrant a finding that the circumstances met the high standard for denying the defendants their important substantive right to trial by jury. In particular, it was emphasized that the case turned fundamentally on determinations of credibility and that jurors are well equipped to make such credibility assessments.

Justice Leach also went on to note that the evidentiary concerns raised by the defendants with the plaintiff's sworn affidavit were entirely valid. Justice Leach noted the affidavit was “obviously laden with impermissible argument and opinion. Given their extensive nature, I do not intend to repeat their wording in detail here.” Many of the assertations in the affidavit were argument and opinion.

Justice Leach noted that the application of general principles of jury trials is inherently a case specific exercise. Neither the length of the trial nor the concepts or experts’ opinions to be dealt with would make it impossible for a jury to decide the case nor to allow a fair trial to occur.

Justice Leach also noted that trial judges are presumed to know the law and have the ability to explain it to jurors. In this particular case, the jury is not required to determine whether chronic pain is real, but whether this individual Plaintiff suffers chronic pain, noting that the Plaintiff’s lawyers have conflated proving chronic pain exists with proving their client suffers chronic pain.

Justice Leach stated that:

a.From my perspective, apart from the questionably detailed and extended manner of its presentation, (addressed in my reasons for declaring a mistrial), there was little if anything of substance to distinguish this particular case from many if not most negligence claims routinely addressed by jury trials in this province. In particular, as the evidence unfolded, it did not appear to be very different from the kind of evidence commonly dealt with by civil juries in medical and personal injury cases.

b. To the extent testimony was provided by health care practitioners who were participating and/or litigation experts, in my view those witnesses presented their evidence in a manner that was clear and entirely comprehensible by lay persons.

c. The manner of questioning, conducted by very experienced counsel, also made the substance, focus and apparent relevance of witness evidence very easy to follow.

d. Prior to the declaration of mistrial, plaintiff counsel themselves were indicating that, to present a sufficient and persuasive case, they belatedly had come to the conclusion it was necessary to present only six of the 20-27 witnesses contemplated during successive judicial pre-trials, or six of the 18 witnesses contemplated by the draft calendar filed with the court at the outset of trial. Various suggested theories of causation and dimensions of plaintiff suffering, (such as those relating to Post Inflammatory Brain Syndrome to be described by the plaintiff’s expert neurologist, and those to be addressed by the plaintiff’s expert speech pathologist), were abandoned altogether. In other words, plaintiff counsel themselves belatedly indicated, in effect, that much of the ostensible complexity suggested at the outset of trial, (e.g., because of the number and variety of witnesses and the nature of their anticipated testimony), had fallen away during the course of the trial.

e. During the course of the trial, I regularly observed the jury to look for signs of inattention and/or confusion, and there were none. To the contrary, they appeared to be dedicated, and took their responsibilities seriously. Each one had organized his or her reference copies of the various exhibits, and immediately retrieved and opened such exhibits to relevant tab and page references being mentioned by counsel. Each of the jurors also intermittently took notes and/or added personal markings to their respective reference copies of exhibits. While it will never be known with certainty what the particular jurors in this case may have decided, had the trial proceeded to a verdict, they seemed remarkably engaged; e.g. to the point of appearing visibly moved during certain portions of the plaintiff’s testimony.”

Justice Leach concluded the decision with “In other words, the view I formed at the outset of trial in relation to this motion therefore not only remained unchanged, but was reinforced by what happened as the trial unfolded. My view was and remained that the jury, properly instructed, would have been in as good a position as I to decide the relevant factual issues based on the evidence, none of which seemed beyond the jury’s comprehension.

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