The Sequence of Plaintiff Witnesses - Ismail v. Fleming, 2018 ONSC 6311 (CanLII)

January 11, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

The Sequence of Plaintiff Witnesses - Ismail v. Fleming, 2018 ONSC 6311 (CanLII)

Date of Decision: October 22, 2018
Heard Before: Justice I.F. Leach

This motion arises from a 2009 car accident that is currently subject of a civil jury trial. The car accident occurred when the defendants’ vehicle made a left turn across the path of the plaintiff’s vehicle.  The two vehicles collided “in a T-bone fashion”, with the front of the plaintiff’s vehicle colliding with the side of the defendants’ vehicle.

In relation to the defendants’ objection to the plaintiff’s proposed calling of physiotherapist Gloria Gilbert as the plaintiff’s first witness at trial, prior to the plaintiff herself then being called as the plaintiff’s second witness at trial, I made the following ruling, for reasons to follow:

 “Subject to the plaintiff excluding herself from the courtroom during Ms Gilbert’s testimony and agreeing to govern herself by the provisions of the anticipated witness exclusion order, (in accordance with the undertaking in that regard given by plaintiff counsel), the plaintiff may call Ms Gilbert as her first witness at trial, with the plaintiff to follow as her own next witness.”

The defendants objected to that proposed sequence of witnesses, taking the position that the interests of justice would be served best by the plaintiff being called as her first witness.  In support of their objection, and oral submissions of defence counsel in that regard, the defendants tendered a statement of law and a number of authorities.

In responding to the objection, plaintiff counsel did not tender any responding statement of law or authorities, but did make responding oral submissions.  In the course of doing so, plaintiff counsel indicated and/or effectively confirmed the following:

1. Ms Gilbert was the only trial witness plaintiff counsel intended to call in advance of the plaintiff herself testifying at trial.  In other words, plaintiff counsel contemplated calling Ms Gilbert as the plaintiff’s first witness, with the plaintiff herself then being called as her second witness.
2. Second, although Ms Gilbert had professional qualifications as a physiotherapist with experience in the management of pain,  she would be presented to the jury only as a fact and “participating expert” witness, as defined by our Court of Appeal in Westerhof v. Gee, 2015 ONCA 206 (CanLII), [2015] O.J. No. 1472 (C.A.), and not as a “litigation expert” in respect of which compliance with Rule 53.03 would be required.
3. Third, in order to allay any possible concern that Ms Gilbert testifying before the plaintiff would circumvent the purposes of a standard witness exclusion order, (which would be requested at the outset of trial), the plaintiff would exclude herself from the courtroom during Ms Gilbert’s testimony, and agree to be governed by the provisions of that anticipated witness exclusion order.

The position of the defendants was as follows:

1. They acknowledged that a litigant generally has a broad right to present his or her case as the litigant thinks best.
2. In this case, however, the defendants submitted that it was essential for the plaintiff to testify first.  In that regard:
   1. The defendants emphasized that a central premise of the plaintiff’s claim for damages is that she initially suffered “soft tissue injuries”, and now suffers from related “chronic pain” and/or “chronic pain syndrome”, as a result of the underlying motor vehicle accident.  In the absence of “organic” or objectively confirmable injuries, a determination of whether or not the plaintiff’s claim for damages has merit accordingly will depend in very large measure on acceptance of the plaintiff’s subjective complaints, assertions and descriptions of pain and disability.
   2. In the circumstances, the defendants argued that having the plaintiff testify first was critical to “setting the stage” appropriately, in terms of providing jurors with context and foundation that would help jurors better understand and make sense of other evidence in the case.  In particular, it was said that the jury needed to hear from the plaintiff about her injuries and conditions before hearing evidence from health care practitioners with respect to such injuries and conclusions and/or prognoses arising out of those injuries.
   3. Requiring the plaintiff to testify before health care practitioner witnesses also was said to be preferable because it would permit health care practitioner witnesses to give opinions “based on the plaintiff’s final evidence” at trial.  Moreover, cross-examination of such witnesses would be difficult without prior confirmation of what that final evidence would be.
   4. The defendants noted that requiring the plaintiff to testify first also would avoid complications and concerns arising from the plaintiff being present during the testimony of prior witnesses; concerns that otherwise would need to be addressed in some other fashion; e.g., an order excluding the plaintiff from the trial prior to her giving testimony.
   5. Finally, it was submitted by defence counsel that allowing Ms Gilbert to testify in advance of the plaintiff raised concerns because Ms Gilbert had not only treated the plaintiff as a physiotherapist, but also assisted the plaintiff, (during and after the provision of such treatment), with referrals to a number of other specialists, some of whom were overlapping in nature.  It was suggested that plaintiff counsel essentially was trying to open the plaintiff’s case with the testimony of a person who effectively acted as “case manager”, to “set the path, groundwork or framework” for the various forms of treatment that the plaintiff received following the accident.  That was said to be objectionable for three reasons:

â–ª First, there were thought to be further documents of Ms Gilbert, (e.g., “invoices” outlining when and what services Ms Gilbert had provided to the plaintiff), which had been requested but not yet produced.  It was suggested that delaying the testimony of Ms Gilbert would allow such concerns to be fairly addressed and such productions to be made. 

â–ª Second, it was submitted that Ms Gilbert improperly would be testifying about matters beyond the scope of her expertise.

â–ª Third, it was said that allowing a witness in the position of Ms Gilbert to testify first, effectively providing the jurors with an overview of the plaintiff’s treatment history, with the plaintiff thereafter testifying “under the umbrella of Ms Gilbert”, might unfairly create a certain impression of the plaintiff before the jurors had the ability to form their own impressions in that regard.

In the submission of the defendants, a ruling requiring the plaintiff to testify first at trial, (made pursuant to the inherent and ultimate discretion of a trial judge to control the process of the court), therefore would promote the search for the truth, efficiency and fairness, while avoiding other potential concerns.   In that regard, it was emphasized that plaintiffs testifying first was the “preferable practice” in personal injury actions, and “soft tissue” cases in particular.

The position of the plaintiff was as follows:

1. Plaintiff counsel emphasized their general discretion to present the plaintiff’s case in the manner plaintiff counsel considers advisable, and in this particular case, plaintiff counsel thinks it best to lead with testimony from a health care practitioner, (presented as a fact witness and participating or treating expert, as opposed to a litigation expert), who can speak knowledgably about chronic pain, and treatment of the plaintiff’s perceived chronic pain, before the plaintiff herself testifies.
2. In particular, plaintiff counsel is concerned that, if the jury was presented with the plaintiff’s testimony in a vacuum, prior to hearing any other testimony clarifying the nature of chronic pain, and receiving any instruction from the court as to the nature, realities and corresponding legitimacy of chronic pain confirmed by the Supreme Court of Canada in Nova Scotia (W.C.B.) v. Martin, 2003 SCC 54 (CanLII), [2003] 2 S.C.R. 504, jurors might unfairly form a negative impression of the plaintiff based simply on the absence of ongoing organic/objective injuries.  If that should happen, plaintiff counsel says it not only may be difficult to overcome that initial negative impression, (e.g., through subsequent evidence and instructions providing the jury with further information and education after the plaintiff has testified), but that subsequent plaintiff witnesses unfairly may be perceived by the jury in the same negative manner.  In the circumstances, plaintiff counsel would have preferred to lead with the anticipated testimony of Dr Ogilvie-Harris, (an orthopaedic surgeon with apparent expertise in relation to chronic pain and chronic pain syndrome), or the testimony of another physician, but Ms Gilbert was the only health care practitioner available to testify during the first scheduled week of trial.     
3. As a “participating expert” rather than a “litigation expert”, the testimony of Ms Gilbert concerning her findings, conclusions and recommendations would not really be contingent on the plaintiff’s testimony at trial, and Ms Gilbert was capable of providing a helpful overview as to the manner in which the plaintiff may have been referred to other health care providers.
4. In the submissions of plaintiff counsel, allowing the plaintiff to call one witness in advance of the plaintiff herself was a relatively modest concession to the plaintiff’s general entitlement to present her case in the manner the plaintiff thought best.

With the above background and positions in mind, I turned to my assessment of the defendants’ particular objection to the plaintiff’s contemplated sequence of calling witnesses.

Analysis

In my view, general observations and principles applicable to determination of such disputes concerning the order of trial witnesses include the following:

1. In the usual course of most trials dealing with personal injury claims, the plaintiff is called as the first witness for the purpose of “setting the stage” for evidence to follow.  The orderly presentation of a case normally will suggest that approach as the preferable practice.
2. However, it must be remembered that a litigant generally has the right to have his or her case submitted to the trier as his or her counsel thinks advisable, in the interests of his or her client.  A trial judge should not lightly interfere with that right, effectively taking conduct of a litigant’s case into the judge’s own hands, and out of the hands of counsel.
3. Pursuant to his or her general obligation to maintain control over a trial proceeding, a trial judge nevertheless has jurisdiction to order that a plaintiff advancing a personal injury claim testify first, at the outset of trial, before the presentation of evidence from treating health care practitioners.  For example:
   1. the court may believe the plaintiff is such a key witness that he or she should tell his or her story as best he or she can at the outset of trial, to assist the trier in making sense of the evidence, avoid confusion and arrive at a just verdict; and/or
   2. the court may accept that cross-examination of expert witnesses may be too difficult without prior testimony from the plaintiff to lay the proper foundation for opinion-related questioning.
4. However, the making of an order requiring a plaintiff advancing a personal injury claim to testify first, before any evidence of health care practitioners is adduced, lies within the discretion of the trial judge.  It is not a general rule of absolute application.  Each case must be dealt with on its own merits.
5. In that regard, it should be remembered that the plaintiff in a personal injury action may not always be the best person to provide initial background to a case at trial.  For example:
   1. a claimant may not always understand his or her impairment, or be capable of expressing it as well as a health care professional; and/or
   2. the prior testimony of a health care practitioner may help a trier understand and appreciate possible impairments affecting a claimant’s ability to testify, and/or the manner in which the claimant may testify.
6. Similarly, it should be remembered that prior testimony of the plaintiff, in the trial of a personal injury claim, realistically may not be necessary to prepare or lay the foundation for effective cross-examination of a plaintiff’s health care providers or other expert witnesses.  In particular, given the amount of prior disclosure now required by the Rules of Civil Procedure, (including rights of oral discovery examination, rights to one or more independent medical examinations, rights to production of notes and records compiled by treating health care practitioners, and rights to reports prepared by “participating experts” or “litigation experts” testifying at trial), defendants to a personal injury claim usually are well aware of the facts upon which health care practitioners rely in forming their respective opinions.
7. Moreover, if plaintiff counsel chooses to call a participating expert or litigation expert before a plaintiff, and subsequent testimony of the plaintiff reveals relevant and probative facts which were unknown to that expert, the trier may find that expert’s opinion less reliable.  If anyone is prejudiced in such circumstances, as the result of plaintiff counsel’s choice, it may be the plaintiff.

Applying such general observations and principles to the facts of this case, I was not satisfied that the circumstances justified interference with plaintiff counsel’s desire to call Ms Gilbert as the plaintiff’s first witness, immediately before calling the plaintiff to testify on her own behalf.

A number of particular considerations factored into that determination.

First, in contrast to other cases where an order requiring the plaintiff to testify first was made, plaintiff counsel in this matter was not suggesting that the trier hear from many health care practitioners, other experts and/or lay persons before the plaintiff testified.  Plaintiff counsel in this case instead suggested and requested only a relatively modest deviation from the usual practice of having a plaintiff testify first; i.e., to hear from just one witness before the plaintiff herself entered the witness box.

Second, the particular witness plaintiff counsel wanted to call first, in advance of the plaintiff giving testimony, was to be presented as a “participating expert” rather than a “litigation expert”, as those terms have been defined by our Court of Appeal in Westerhof v. Gee Estate, supra.  In particular, plaintiff counsel confirmed in advance that there was no intention of presenting Ms Gilbert as a witness whose evidence would require compliance with Rule 53.03.  To the extent Ms Gilbert would be a witness with special skill, knowledge, training or experience, who treated the plaintiff but was not engaged by or on behalf of a part to the litigation, her testimony as a traditional “fact” witness might include opinion evidence offered for the truth of its contents, without complying with Rule 53.03, so long as the opinion given was based on her observation of or participation in the events at issue, and she formed the opinion given “as part of the ordinary exercise of her skill, knowledge, training and experience while observing or participating in such events”.[9]  [Emphasis added.]  In the circumstances, Ms Gilbert’s contemplated fact and opinion testimony inherently would not depend on the testimony to be given by the plaintiff at trial.

Third, from the documentation provided to me as exhibits for identification, it seemed clear that the defendants have been provided with ample indications of what Ms Gilbert intends to say, and the facts on which she based her opinions and recommendations.

Fourth, I was not persuaded that Ms Gilbert’s possible broader “case management” involvement in the case, (for lack of a better term), beyond the treatment she provided as a physiotherapist, was a reason militating against her being called as the plaintiff’s first witness.  To the contrary, it seemed reasonably arguable that Ms Gilbert might very well have abilities beyond those of the plaintiff, in terms of providing the jury with an organized initial overview of the plaintiff’s broader treatment experience, thereby helping the jury to place subsequent witnesses and testimony in proper context. 

Fifth, I similarly was not persuaded that any suggested lingering production issues, in relation to Ms Gilbert’s records, should be viewed as an impediment, at this stage of the litigation, to Ms Gilbert testifying in advance of the plaintiff.  The Rules of Civil Procedure provide parties with ample tools to pursue full and complete disclosure in advance of trial.  In my view, if the defendants felt disclosure from Ms Gilbert was lacking, (i.e., in terms of “invoices” she may have rendered in relation to the services she provided vis-à-vis the plaintiffs), the issue should have been pursued before plaintiff counsel was seeking to call the plaintiff’s first witness.

Sixth, to the extent defence counsel may have concerns about Ms Gilbert attempting to testify about matters beyond the scope of her expertise, in my view those are concerns that can and should be addressed during the course of Ms Gilbert’s testimony.  They are not relevant to the preliminary determination of whether Ms Gilbert should be permitted to testify as the plaintiff’s first witness, before the plaintiff herself then testifies.

Seventh, although the ability of a trial judge to order the exclusion of a party from his or her own civil trial may be limited, in my view the plaintiff’s undertaking to absent herself from the courtroom during Ms Gilbert’s testimony, and to be bound by the provisions of the anticipated witness exclusion order, provided adequate assurance that the important concerns underlying such an order, (i.e., the need to prevent witnesses from consciously or subconsciously tailoring evidence to conform with that of any previous witness), would be sufficiently addressed.  

Eighth, plaintiff counsel offered a reasoned preference for his professional decision to call Ms Gilbert as the plaintiff’s first witness, in advance of the plaintiff herself.  To the extent he thinks doing so will leave the jury with a more favourable initial impression of the plaintiff and/or the plaintiff’s case, I see no compelling organizational reason why I should interfere with his preferred course of presentation.  Certainly, I do not think defence counsel’s apprehension of the plaintiff thereby receiving a more favourable initial impression vis-à-vis the jury constitutes such a reason.  To the contrary, in my view that underscores why a trial judge should not descend lightly into the litigation arena to interfere with a party’s desired presentation of his or her case.  Moreover, it is repeatedly emphasized to jurors that they are not to decide a case until they have heard all of the evidence, (as well as closing submissions and final instructions from the trial judge), such that the initial impressions of any party or witness eventually will be tempered by consideration of the evidence in its entirety.

Conclusion

For such reasons, I decided to make the substantive ruling set forth above allowing Ms Gilbert to be called as the plaintiff’s first witness at trial, (prior to the plaintiff herself then being called as the second trial witness), subject to the plaintiff abiding by the undertaking given in relation to the anticipated witness exclusion order.

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