Halifax Personal Injury Lawyer Blog

http://www.apmlawyers.com/lawyer-attorney-1790130.html"Novel" Science in the Courtroom

In 1994 the Supreme Court of Canada in the landmark decision R v Mohan settled the following general criteria for the admissibility of expert opinion evidence:

1) The evidence is relevant to some issue in the case;

2) the evidence is necessary to assist the trier of facts;

3) the evidence does not violate an exclusionary rule; and

4) the witness presenting the evidence is a properly qualified expert.

In R.J.D.D. the Supreme Court issued a warning about the wholesale admission of expert evidence. The SCC established the role of the court as one of "gatekeeper" for the admission of novel expert evidence.

I have posted before about the difficulties in proving brain injuries and some of the myths associated with minor traumatic brain injury: What is a Mild Traumatic Brain Injury? and 8 Myths of Traumatic Brain Injury

New Advances in Brain Injury Research

As medical science advances and new tools and tests are being created which help medical professionals diagnose potential brain injuries. See for example Brain Injury Claims: New Blood Test May Help Brain Injury Victims

However, whether or not those tools and tests can actually be used in court to prove the existence of brain injury is open to debate.

Brainwaves Reports Not Admissible

A recent decision from British Columbia addressed the admissibility of QEEG reports in a brain injury claim. QEEG stands for "Quantitative ElectroEncephaloGram". It is a digital measurement of electrical patterns at the surface of the scalp which primarily reflect cortical electrical activity in the brain. Put simply, a QEEG maps "brainwaves."

In Bialkowski v. Banfield the court ruled that while QEEG reports may be admissible in appropriate case the plaintiff in that case did not provide sufficient evidence to establish the reliability of the evidence.

Justice Bracken ruled the plaintiff’s neuropsychologist was not properly qualified to introduce the QEEG evidence.

The relevant findings are as follows:

[3] Electroencephalography (“EEG”) is a means of recording the electrical activity of the brain. Typically, electrical signals are received through 19 electrodes placed on certain areas of the scalp by attaching the electrodes to a cap that fits snugly over the patient’s head. The electrical activity is then recorded either on paper, or digitally on a computer. The clinician can then visually examine the recorded data to analyze the patterns of activity.

[4] QEEG is a relatively new neuroimaging technique. It uses computer assisted analysis of EEG tests. The raw EEG data is digitized and analyzed by means of a mathematical algorithm. It is said that the computer analysis is capable of extracting more information from the raw EEG data and enables the clinician to observe more subtle anomalies than can be seen with the eye on standard visual analysis. Using another program the digitized data is then compared to a normative database to determine if the data are consistent with what is normal for a comparable group of individuals…

[58] While there may be cases where QEEG evidence will be accepted as part of expert opinion in Canadian Courts it should only be through a neurologist who is trained and qualified in EEG testing and analysis. In my view, only a trained electroencephalographer who has the skill, knowledge and training to recognize the potential for error is qualified to give opinion evidence of QEEG analysis.

[59] On the evidence presented in this case, I find the QEEG evidence to be novel science and not sufficiently reliable for admission into evidence on the principles established in J.L.J. andMohan. I conclude it will not assist the trier of fact. As science progresses this may change and the evidence may meet the test of reliability so as to be admissible at some point in the future. As was noted in Seifert, the fact that expert evidence conflicts does not, by itself, make it inadmissible. Coburn, et al, recognize this in the conclusion of their report at p. 23, where it is stated:

Used cautiously and with appropriate recognition of its limitations, QEEG offers the clinician an accurate laboratory test to aid in the detection and differential diagnosis of several common neuropsychiatric disorders. …

Additional uses of QEEG showing promise but not yet sufficiently developed for routine clinical application include the prediction of medication efficacy and the prediction of the clinical cause of a disorder.

There is nothing in that conclusion to suggest it will become clinically useful in diagnosing traumatic brain injury in the near future; however, it remains open for such evidence to be offered through an appropriate expert if and when it satisfies the evidentiary requirements of Canadian Courts.

[60] The evidence of QEEG analysis given by Dr. Malcolm is rejected as not being offered by a qualified expert. QEEG does not meet the requisite reliability threshold and is still novel science.

Door Still Open?

The ruling leaves open the possibility that properly qualified experts, for example neurologists, could introduce evidence in the appropriate cases.

Continue reading "Using QEEG Test Results in Brain Injury Claims - Bialkowski v. Banfield " »

Expert evidence forms the core of any personal injury claim. In almost every personal injury case the plaintiff must provide scientific evidence, usually if the form of testimony from teatingg doctors and other health care providers about issues surrounding causation of the plaintiff’s injuries.

Personal injury claims often boil don to a so-called "battle of the experts" and the judge or jury is forced to decide which evidence they feel is more reliable or reasonable.

Interpreting Scientific Evidence Challenging

Recently Justice Thomas Cromwell of the Supreme Court of Canada delivered the Macfadyen Lecture on “The Challenges of Scientific Evidence”.

One of the topics Justice Cromwell discussed was the role of the trial judge as a “gate keeper” to ensure the accuracy of the expert evidence presented to the court.

Justice Cromwell specifically expressed concern about the lack of expert impartiality.

“One area of concern has been the lack of objectivity and independence of experts. For example, the Goudge Report noted that Dr. Smith failed to understand his duty of impartiality. He testified that he has received no training or instruction in this regard. Indeed he thought his role was to advocate for the Crown and to “make a case look good”.”

Defence Medical Exams: Hired Guns?

Justice Cromwell’s concerns are well founded. Our court rules allows for so-called "Independent Medical Examinations". Any time a plaintiff puts his or her physical well being at issue, the defendant is entitled to require the plaintiff to be examined by a medical expert (or experts) of the defendant’s choice.

I prefer to call these exams Defence Medical Examinations. While these defence experts are supposed to be impartial, it is clear that some defence experts see it as their job to minimize a plaintiff’s claim.

Case in point is the recent decision of Leslie v. S & B Apartment Holding Limited.

In that case, the plaintiffs suffered serious burns after a fire in their apartment building. They claimed the landlord was negligent in not having appropriate smoke detection and alarm systems in place in the building. The plaintiffs claimed to have suffered from post traumatic stress as a result of their injuries.

The defendant hired a psychiatrist by the name of Dr. Ruben who disputed that the plaintiffs suffered from post traumatic stress disorder as a result of the fire.

The plaintiffs’ treating psychiatrist used criteria established by the American Psychiatric Association documented in the Diagnostic and Statistical Manual of Mental Disorders (DSM).

Defence Expert Makes Up His Own Tests

On the other hand, the defendant’s expert, Dr. Ruben, testified that he did not use the DSM criteria. He testified that he made up his own tests to determine Global Assessment of Functioning when diagnosing patients.

Justice Scaravelli pointed out his concerns with the defence expert’s approach when he stated at paragraph 91 of his decision:

“I find that Ms. Leslie’s preexisting psychological condition was exacerbated by the accident and that she subsequently developed PTSD. As treating psychiatrist, I accept Dr. Fraser’s evidence that Ms. Leslie’s condition was improving prior to the fire. This was the result of prescribed medications and lifestyle changes on her part. In diagnosing PTSD, Dr. Fraser’s GAF score was based on DSM criteria adopted by the American Psychiatric Association. In doing so Dr. Fraser identified symptoms that arose post fire. On the other hand there is no evidence that Dr. Ruben’s own method of determining GAF has been tested or accepted in the field of psychiatry.”

It is reassuring to see the court protecting the interest of plaintiffs and rejecting the evidence of defence experts who simply make up their own tests in order to justify an opinion that is clearly not impartial.

Free Report

I have prepared a report that I provide to all my clients who have to undergo a Defence medical Exam to help them prepare. It's called "Ten Tips to Surviving Your Defence Medical Exam". If you would like a copy, contact me and I will email it to you free of charge.

A recent decision from the Ontario Superior Court had to ask (and answer) this questions.

In Babakar v. Brown the Babakars were injured in a motor vehicle accident. They were insured by State Farm Insurance. They applied for accident benefits under their own automobile policy. Their insurance company sent the Babakars to see a psychologist, an orthopedic surgeon and a physiotherapist for so called “independent" medical examinations.

Plaintiffs Cut Off

Based on the reports of the experts, State Farm cut off the Babakars’ accident benefits. (What a surprise).

The Babakars were forced to sue their own insurance company to try to recover the benefits that they were entitled to receive under their auto insurance policy.

How Were Experts Reports Prepared?

During discoveries the Babakars’ lawyer asked State Farm to ask their experts a number of questions about how their reports were prepared:

1. To ask Dr. Hoath whether pre-accident or other historical records were needed and if he ever made a request to State Farm for the records.

2. If pre-accident records were information Dr. Hoath thought he needed, why didn’t he request it? To ask Mr. McCready, when he had the report, if he ever considered sending such information to Dr. Hoath.

3. To ask Dr. Kadish what use he made of or what possible benefit to him Mr Diaz’ s Functional Ability Evaluation Report was given that Mr. Diaz says in his report he can’t tell you anything without the Functional Demands Analysis.

4. With respect to Farzana, ask Dr. Hoath why he didn’t have the pre-accident records of Dr. Sheikh, whether he thought they were necessary, did he ever ask for them? Did the adjuster, after having reviewed the report, think to send the records to Dr. Hoath or ask Dr. Hoath if the pre-accident reports were important?

5. Ask Dr. Dorman to confirm at page 3 (Tab 127) that his notation about bruising of her legs at the hospital was information that he received from Mrs. Babkar as opposed to otherwise.

6. Refusal – To ask Dr. Dorman if his answer in question no. 2 on page 8 of 9 of his report, if he is referencing Farzana’s right knee problem.

7. To ask Dr. Dorman why he was answering questions that he was not asked by the insurer to address.

Insurer Refuses to Answer Questions

The insurance company refused to ask the questions on the basis that the doctors were expert witnesses and discovery of experts is prohibited under Ontario’s Rules of Court.

State Farm was ordered to make the inquiries on an initial motion. State Farm appealed.

On appeal, Justice Lederer said that:

“An expert is not treated as an expert when his or her opinion is an approximate or immediate cause of the harm, loss or damage.”

In other words, because the experts’ conduct was the reason why the Babakars had been forced to sue, the experts were the cause of the loss that was the subject of the litigation. Therefore, the prohibition against discovery of experts did not apply.

Justice Lederer concluded that:

“These reports are not prepared to assist the court in understanding technical information that is outside the knowledge of the judge or jury. The information in the reports is used by the insurer to assist in determining whether the party claiming the benefit qualifies. If, as here, it is suggested that a determination that a party does not, or no longer qualifies, was made in bad faith, the basis upon which the determination was made is directly pertinent.”

I understand that State Farm has appealed. What Does it mean to Nova Scotia Accident Victims?

This decision is going to be relevant to claims in Nova Scotia because we have recently implemented new Civil Procedure Rules which eliminates (or severely curtails) the right to discovery of expert witnesses.

I anticipate Nova Scotia courts will interpret the prohibition on discovery of experts in much the same way since our rule is based on the same rule in Ontario.