Expert Witness Testimony Ruled Inadmissible - Boone v. O’Kelly, 2020 ONSC 6932 (CanLII)

December 02, 2020, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Heard Before: BEAUDOIN J
Date of Decision: November 18, 2020

EXPERT EVIDENCE: court finds that defence expert evidence is not reliable; evidence of the expert is inadmissible; Rule 53.03 violated; procedural violations; inconsistent testimony;

Background:

The plaintiff suffered injuries during a surgical procedure to remove a filter in their heart artery . The medical history of the patient is complicated. Prior to the incident the plaintiff was living independently in almost all aspects of daily life. Following the incident the plaintiff requires constant care and is confined to a wheelchair. The plaintiff who is 57 brought this action as a claim for damages for injuries sustained during the procedure when his heart was punctured, resulting in paralysis of the lower extremities.

The plaintiffs in the case seek to exclude the defence expert witness Dr. AB entirely. The defendants argue that the plaintiff’s pre-incident history was complex and that the plaintiff would have found himself in this condition eventually regardless of the incident.

Analysis:

Justice Beaudoin reviewed the case, the law and the evidence. He concluded that the evidence provided by the expert witness was not fair, objective nor reliable. The evidence was more prejudicial in nature than probative. For the following reasons Justice Beaudoin concluded that Dr. AB failed in his duties to provide the fair, objective and reliable evidence required and his evidence was not admitted:

• Dr. AB did not comply with rule 53.03 of evidence surprising the plaintiffs with evidence which was not referred to in defence counsel’s opening statements
• Dr. AB changed his mind at trial on his medical opinion without providing satisfactory explanation. He indicated his revised opinion was not based on new evidence
• The revised opinion was not communicated to plaintiffs, nor was a supplemental report served as required by rule 53.03(3)9a).
• The procedural failure had a direct bearing on the only issue at trial – the assessment of damages
• Dr. AB attempted to justify his opinion in many ways and indicated part of his persistent tendency to distinguish and answer previously given.
• DR. AB showed a pattern of ‘dogmatically sticking’ to an answer until being caught in a verifiable contradiction which began early in the trial.
• Defence counsel stated they would not rely on Dr. AB’s new opinion indicating their expert was confused. Justice Beaudoin noted the defense failed to explain how this confusion gave the expert testimony any reliability.

Conclusion:

Justice Baudouin concluded that “I cannot conclude that Dr. AB was intentionally biased.  Given that his opinion is based, in large part, on documents that the defendants’ counsel selected and sent to him, I find that there is an inherent bias, from the beginning, in Dr. Burns’ opinion and evidence. Dr. Burns did not recognize the problem with the approach taken:  he failed to adopt his standard practice; and he did not seek out any additional information that could have enhanced the reliability of his opinion. In the end, Dr. Burns either misinterpreted or misrepresented key documents and simply assumed the validity of assessments performed by other professionals.”

On this basis Dr. AB’s opinion and evidence were given no weight and not admitted. It was excluded in its entirety.

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