FACTUM OF THE APPELLANT, DR. TAJEDIN GETAHUN

Transcription

1 Court File No. C58338 COURT OF APPEAL FOR ONTARIO BETWEEN: BLAKE MOORE Respondent (Plaintiff) - and DR. TAJEDIN GETAHUN,THE SCARBOROUGH HOSPITAL-GENERAL DIVISION, DR. JOHN DOE and JACK DOE FACTUM OF THE APPELLANT, DR. TAJEDIN GETAHUN Appellant (Defendants) August 6, 2014 LENCZNER SLAGHT ROYCE SMITH GRIFFIN LLP barristers Suite Adelaide Street West Toronto ON M5H 3P5 J. Thomas Curry (25740V) Tel: (416) Fax: (416) tcurry@litigate.com Jaan E. Lilles (495980) Tel: (416) Fax: (416) jlilles@litigate.com Lawyers for the Defendant (Appellant), Tajedin Getahun

2 TO: PAPE BARRISTERS PROFESSIONAL CORPORATION Barristers 1 Queen Street East Suite 1910 Toronto, ON M5C 2W5 Paul Pape Tel: (416) Fax: (416) Tel: (416) Fax: (416) Lawyers for the Plaintiff (Respondent), Blake Moore AND TO: BEARD WINTER LLP Lawyers 130 Adelaide Street West Suite 701 Toronto, ON M5H 2K4 John A. Olah Tel: (416) Fax: (416) Lawyers for the Intervener, Canadian Defence Lawyers Association AND TO: AIRD & BERLIS LLP Barristers & Solicitors 181 Bay Street Suite 1800 Toronto, ON M5J 2T9 Courtney Raphael Tel: (416) Fax: (416) Lawyers for the Intervener, The Canadian Institute of Chartered Business Valuators

3 3 AND TO: McCARTHY TETRATJLT LLP 66 Wellington Street West Suite 5300, P.O. Box 48 Toronto, ON M5K 1E6 William D. Black Tel: (416) Fax: (416) Lawyers for the Intervener, The Holland Access to Justice in Medical Malpractice Group ("The Holland Group") AND TO: PALIARE ROLAND ROSENBERG ROTHSTEIN LLP Barristers 155 Wellington Street West 35th Floor Toronto, ON M5V 3H1 Linda Rothstein Tel: (416) Jean-Claude Killey Tel: (416) Tel: (416) Fax: (416) Lawyers for the Intervener, The Advocates' Society AND TO: OATLEY, VIGMOND Personal Injury Lawyers LLP 151 Ferris Lane Suite 200 Bailie, ON L4M 6C1 James L. Vigmond Tel: (705) Fax: (705) Lawyers for the Intervener, Ontario Trial Lawyers Association

4 4 AND TO: HENEIN HUTCHINSON LLP 235 King Street East 3rd Floor Toronto, ON M5A 1J9 Marie Henein Tel: (416) Fax: (416) Lawyers for the Intervener, The Criminal Lawyers' Association

5 Court File No. C58338 COURT OF APPEAL FOR ONTARIO BETWEEN: BLAKE MOORE Respondent (Plaintiff) - and DR. TAJEDIN GETAHUN,THE SCARBOROUGH HOSPITAL-GENERAL DIVISION, DR. JOHN DOE and JACK DOE FACTUM OF THE APPELLANT, DR. TAJEDIN GETAHUN Appellant (Defendants) PART I NATURE OF THE APPEAL 1. This is an appeal from the Judgment of the Honourable Justice Janet Wilson dated January 14, 2014, by which she found the Appellant, Dr. Tajedin Getahun liable in negligence for damages caused to the Respondent, Blake Moore ("Mr. Moore). Mr. Moore developed a compartment syndrome that the Trial Judge found had arisen from the application of a cast to his fractured right wrist in the emergency department of the Scarborough Hospital on November 12, This appeal raises important legal issues concerning expert opinion evidence and trial practice that have attracted attention from across the Ontario Bar. The legal errors committed by the Trial Judge led her to make incorrect findings of credibility, distorted the evidentiary record and deprived Dr. Getahun of a fair trial. Under the circumstances, a new trial is required.

6 2 PART II - OVERVIEW 3. The trial of this medical negligence action took eight days, including argument. Two other attendances were required to deal with issues raised by the Trial Judge concerning certain exhibits after the matter was reserved. There were two issues to be decided at trial; whether the plaintiff could prove a breach of the standard of care and causation. The standard of care issue turned on the application of a plaster cast to the full circumference of the wrist as opposed to a bi-valved (or split) cast or splint. The causation issue turned on whether the compartment syndrome was caused by the type of cast used or the original injury. The quantum of damages was agreed prior to the start of trial. 4. As such trials go, this case was not overly complex. Despite that, the issues between the parties were lost among rulings and decisions that disregard the tenets of conventional trial practice and rules of evidence. 5. Virtually all of the matters of which the Appellant complains here arose from directions and rulings made by the Trial Judge acting on her own initiative. While counsel for the plaintiff were bystanders during many of the arguments that led to the impugned rulings, counsel for the defendant wasn't so fortunate they were unfairly criticized and some of their positions were inaccurately represented by the Trial Judge. 6. Apart from the profound and negative effect on Dr. Getahun as a party to the proceeding, confidence in the civil justice system is undermined when decisions of our Courts depart from substantive and procedural law. 7. The legal errors raised on appeal can be grouped into four categories. First, the Trial Judge made significant legal errors in her approach to the expert opinion evidence called by the

7 3 Appellant that led to a negative assessment of that evidence. The errors include a misplaced criticism of counsel for the Appellant below for her interaction with an expert witness at the time of the preparation of a report provided under Rule 53 of the Rules of Civil Procedure, a negative assessment of that expert's evidence on that ground, and the misuse by the Trial Judge of inadmissible evidence to assess the credibility of the expert witnesses called by the Appellant. 8. Second, the Trial Judge erred when she interfered in the presentation of the evidence in relation to the case for the Appellant at trial. The effect of this error was to render the trial unfair. 9. Third, the Trial Judge erred when she admitted prejudicial hearsay statements of a deceased witness under the res gestae exception to the hearsay rule. Fourth, the trial judge erred in her analysis of the issue of causation. PART III - THE FACTS 1. THE UNDERLYING EVENTS 10. On the afternoon of Saturday, November 12, 2005, Blake Moore crashed his motorcycle into a parked SUV while being videotaped stunt-riding. As a result, he sustained injuries, including to his right wrist. He was taken by ambulance to the Emergency Department at the Scarborough General Hospital where he was seen initially by an Emergency Room physician and then by Dr. Getahun, the Orthopaedic Surgeon on call. Moore v. Getahun, 2014 ONSC 237 at para. 1; Compendium, Tab 3, p. 12 {Reasons].

8 4 11. After obtaining x-rays confirming a fracture of the right wrist, Dr. Getahun performed a closed reduction of the injury to place the bones in alignment. 2 Dr. Getahun then applied a padding and a full circumference plaster cast on the plaintiff's wrist and forearm. 12. A second set of x-rays confirmed that the reduction was successful, however a part of the wrist, the lunate facet, was broken into many pieces, or comminuted. Dr. Getahun recommended to Mr. Moore that he undergo a surgical reduction and external fixation using metal hardware to hold the joint in place during the recovery period, together with a possible bone graft to repair the injury Dr. Getahun offered to perform the surgery that night but Mr. Moore declined. He and his father were concerned about Dr. Getahun's relative experience and the scope of the proposed surgery that may have included a bone graft. They wished to obtain a second opinion from Dr. Orsini, an Orthopaedic Surgeon at North York General Hospital who had previously treated a family rnember Since it was a Saturday afternoon, the best that the Moores could do was to try to see Dr. Orsini on Monday morning. Dr. Getahun advised the plaintiff and his father that they could decide about surgery over the next week and that if they were unable to obtain a second opinion, to return to the hospital on Wednesday, November 16, 2005 and he or his partner would perfoliir the surgery.5 2 Reasons, at para. 2; Compendium, Tab 3, p Reasons, at paras ; Compendium, Tab 3, p Reasons, at paras. 132, 140;. Compendium, Tab 3, p. 32, 33 5 Reasons, at paras ; Compendium, Tab 3, p. 32.

9 5 15. Prior to discharging Mr. Moore, Dr. Getahun examined the circulation in the arm to ensure the cast was not too tight and provided him with instructions, including in a written pamphlet, which Mr. Moore acknowledged he read.6 He explained that the injury would result in pain and swelling for two to three days but to return to the hospital if he had increased pain or swelling.7 The pamphlet made the same points At the time of discharge Mr. Moore was prescribed Tylenol 3, which he took.9 Mr. Moore slept through the night but on awakening at 7:30 a.m. he noticed an increase in the pain and swelling. As a result, Mr. Moore and his father attended at the North York General Hospital Emergency Department. Mr. Moore was registered as a patient there at 11:26 a.m. 17. Mr. Moore was assessed by Nurse Wilson at 11:55 a.m. who documented a rating of 4 on the Canadian Triage Acuity Scale, the second lowest level of urgency. Nurse Wilson testified this rating reflected her assessment of the low level of Mr. Moore's level of pain and discomfort. The Trial Judge rejected her evidence and her record Dr. Russell Tanzer assessed Mr. Moore in the Emergency Department at approximately 1:15 p.m. and ordered an x-ray of the wrist, while the cast remained in place. Dr. Tanzer testified and the Trial Judge accepted, that he suspected compartment syndrome. He neither 6 Reasons, at para. 147, Compendium, Tab 3, p. 34. 'Reasons, at para. 154, Compendium, Tab 3, p Exhibit 1-2D, Compendium, Tab 7A, p Reasons, at para. 162, Compendium, Tab 3, p Reasons, at para. 171.

10 6 noted this fact nor immediately removed the cast.11 The experts agreed that compartment syndrome is exceedingly rare, arising in only 1.4% of cases like this When Mr. Moore returned from the x-ray at approximately 1:45 p.m., Dr. Tanzer split the cast open and called the Orthopaedic Surgeon on call, who happened to be Dr. Orsini. 20. Dr. Orsini saw Mr. Moore initially sometime after 2:00 p.m.. Dr. Orsini on his initial attendance noted that there was passive stretch pain, a sign consistent with compartment syndrome. Mr. Moore was not taken to the Operating Room by Dr. Orsini until after 6:00 p.m Dr. Orsini performed a procedure to open the foreaunr and an external fixation of the underlying fracture. Dr. Orsini's opinion was that Mr. Moore did have a compartment syndrome. His operative report notes that "the muscles seem to be viable, red, bleeding and contractile" an indication that the muscles were not damaged by necrosis, which is relevant to causation THE TRIAL Day Dr. Orsini died subsequent to his treatment of the plaintiff and after he had prepared a report for Mr. Moore on the liability issues. The trial opened with a motion brought by the plaintiff for a ruling that the reports prepared by Dr. Orsini were admissible at trial. 11 Reasons, at paras , 180; Compendium, Tab 3, p ; Transcript, October 17, 2013, p. 11, In ; Compendium, Tab 6A, pp Reasons, at para. 383; Compendium, Tab 3, p Reasons, at paras. 185, 188, 193, Compendium, Tab 3, pp Reasons, at para. 196, Compendium, Tab 3, pp

11 23. Counsel for Dr. Getahun objected to the liability reports being made exhibits on the basis that the reports were hearsay, Dr. Orsini was unavailable to be cross-examined, and the reports were not admissible under Section 52 of the Evidence Act as they dealt with liability issues The Trial Judge ruled that Dr. Orsini's opinions on the standard of care and causation were not admissible. Those aspects of his report that concerned additional facts or observations were ruled admissible and so the report dated July 27, 2006 was filed in a redacted form On the morning of the first day of trial, the Trial Judge requested copies of the expert reports be provided to her and be made exhibits at the trial when the witnesses testified. Neither counsel wished to have the reports made exhibits, but did not object to providing the reports to the Trial Judge to aid her following the evidence. 17 The use of the expert reports was an issue that concerned the Trial Judge and informed her approach to the key issue of the expert opinion evidence through the rest of the trial. Day Over the objection of counsel for Dr. Getahun, Mr. Moore's father was permitted to testify about opinions Dr. Orsini expressed to him after the surgery. Dr. Orsini told Mr. Moore that Dr. Getahun had "butchered his son", was negligent and caused the plaintiff's injury. 18 The Trial Judge ultimately ruled these statements were admissible as part of the res gestae but not for the truth of the statements Reasons, at para. 17, Compendium, Tab 3, p Transcript, October 15, 2013, p. 39, ln. 27 p. 46, ln. 19, Compendium, Tab 6B; pp Transcript, October 15, 2013, p. 97, ln. 24 p. 99, In. 10, Compendium, Tab 6C, pp Reasons, at para. 200, Compendium, Tab 3, pp Reasons, at paras , 204, Compendium, Tab 3, pp. 16, 45.

12 8 27. At the end of the day the Trial Judge again asked for copies of the expert reports.2 Day Dr. Tanzer testified about his interaction with Mr. Moore. Although he was not an Orthopaedic Surgeon, had not prepared a report on the issue and no notice had otherwise been given to Dr. Getahun, Dr. Tanzer was allowed, subject to argument to take place at the end of the trial, to express his opinion whether the standard of care had been met by Dr. Getahun and the cause of Mr. Moore's compartment syndrome In response to a suggestion from Mr. Moore's counsel that he may seek again to admit Dr. Orsini's reports, the Court indicated for the first time that the opinions contained in Dr. Orsini's reports were in fact admissible as part of the res gestae The Trial Judge again requested copies of the expert reports and counsel for both parties provided copies of their reports to the Trial Judge as aids and not as part of the evidentiary record In the discussion that followed, the Court learned that the plaintiffs expert, Dr. Richards had prepared his eighth report that had just that day been provided to counsel for Dr. Getahun. The Trial Judge suggested that the experts meet together to attempt to narrow the factual issues Transcript, October 16, 2013, p. 133, ln ; Compendium, Tab 6D, p The evidence was received over the objection of counsel for Dr. Getahun, and eventually ruled inadmissible in the Reasons for Judgment. 22 Transcript, October 17, 2013, p. 172, ln. 10 p. 173, ln. 10, Compendium, Tab 6E, pp Transcript, October 17, 2013, p. 173, ln. 19 p. 190, ln. 13, Compendium, Tab 6F, pp Transcript, October 17, 2013, p. 181, ln. 18 p. 182, ln. 17, Compendium, Tab 6F, pp ; Although the suggestion was not pursued by the Trial Judge, she later criticized counsel for Dr. Getahun for rejecting the idea. In fact, counsel for Dr. Getahun had not rejected the proposal.

13 9 32. In the course of the discussion about the late report from Dr. Richards, two other issues emerged. One was the ability of the Trial Judge to use the expert reports as evidence in the case and the other was the manner in which facts developed during the course of the evidence of witnesses taken at trial could be put to the experts in obtaining their opinions During the discussion about the supplementary report of Dr. Richards, the Court raised an issue whether the expert reports could be admitted for the truth of their contents. Counsel were agreed that the reports were aids and not evidence, a position the Trial Judge described as "so passe" The Trial Judge repeated her suggestion of a meeting between the experts.27 Counsel for Dr. Getahun indicated that counsel would consider and discuss the suggestion. Counsel for Mr. Moore did not consider that a meeting was necessary as the issues had been significantly narrowed An issue arose whether the expert reports required editing before they were given to the Trial Judge but she confirmed that redacted versions were not required as the reports were being provided solely as an aid.29 On that basis, the Trial Judge received the expert reports exchanged by the parties. 25 As to the latter, the Trial Judge confused the issue of opinions on issues not found in the expert's report and the ability of counsel to examine an expert witness to address different version of the facts touching on opinions that have been given in a report. The issue is properly addressed by the use of hypothetical questions; see Khan v. College of Physicians and Surgeons of Ontario, [1992] O.J. No (C.A.) at para. 106, Appellants Book of Authority, Tab Transcript, October 17, 2013, p. 180, ln. 12, Compendium, Tab 6F, p " Transcript, October 17, 2013, p. 182, In. 26 p. 183, ln. 8, Compendium, Tab 6F, pp Transcript, October 17, 2013, p. 183, ln. 9 27, Compendium, Tab 6F, p Transcript, October 17, 2013, p. 189, ln , Compendium, Tab 6F, p. 163.

14 10 Day Dr. Robin Richards, the expert Orthopaedic Surgeon called on behalf of Mr. Moore was the first scheduled witness on the fourth day of trial. Prior to hearing his evidence, and based on her review of the reports that had been provided to her, the Trial Judge requested that the witness be excused so that she could raise an issue with counsel about the scope of the opinion evidence that would be led from Dr. Richards. 37. What concerned the Trial Judge was that Dr. Richards had only commented on one standard of care issue, the application of a full cast.3 A lengthy exchange followed on the proper scope of Dr. Richard's evidence and whether he was entitled to give evidence on the issue of discharge instructions, he having not raised it in any of his eight reports. The Trial Judge was concerned to have the scope of Dr. Richards' opinion expanded to deal with an issue she herself perceived as having arisen from the facts Counsel for Dr. Getahun raised an objection that the Trial Judge was raising a theory of liability that had never been identified by Dr. Richards.32 In response, the Court addressed a different question. The Trial Judge wanted the expert witness to be able to comment on the facts arising during the course of the trial, a point that counsel for Dr. Getahun didn't dispute so long as it didn't offend the requirement to have been disclosed in an expert report. 33 The Trial Judge also mistakenly suggested that counsel for Dr. Getahun had objected to a meeting of the expert witnesses Transcript, October 21, 2013, p. 2, ln. 5 p. 3, ln. 12, Compendium, Tab 6G, pp Transcript, October 21, 2013, p. 2, ln. 7 p. 34, ln. 18, Compendium, Tab 6G, pp Transcript, October 21, 2013, p. 3, ln. 15 p. 7, ln. 24, Compendium, Tab 6G, pp Transcript, October 21, 2013, p. 7, ln. 26 p. 10, ln. 7, Compendium, Tab 6G, pp Transcript, October 21, 2013, p. 13, ln. 7 9, Compendium, Tab 6G, pp. 181.

15 The issue of the care provided by Dr. Getahun prior to the application of the cast was not an issue that Dr. Richards had ever raised. The Trial Judge's intervention was to seek his opinion from the witness box on an issue she thought required opinion evidence to address The Trial Judge pointed to what she perceived as deficiencies in the expert reports she had read, mainly Dr. Richard' reports. Counsel for Dr. Getahun again agreed that Dr. Richards could address issues of fact arising in the course of the trial, and give his opinion on the issues addressed in his report After a brief adjournment, the trial resumed when counsel for Mr. Moore deteiniined that Dr. Richards had no criticism of Dr. Getahun's care other than the application of the full cast Dr. Richards testified that Dr. Getahun had breached the standard of care by using a full circumferential cast in the circumstances. On cross examination, he was impeached by a report he had written in the case that said a full circumferential cast was acceptable if it was very wellpadded.38 He initially denied making that statement but conceded that he had and tried to distinguish the facts on the basis that this cast was found to be tight.39 He never suggested that the language of the report was a mistake, let alone a typographical error. Nor did counsel for the plaintiff at trial lead that evidence from the witness, or make that argument at trial. 43. Dr. Richards testified about the timing of the onset of the compartment syndrome in this case. He said that at the time of the surgery the muscles had not become necrotic, the state of 35 Transcript, October 21, 2013, p. 19, ln , Compendium,Tab 6G, p Transcript, October 21, 2013, p. 19, ln. 22 p. 22, ln. 4, Compendium, Tab 6G, pp Transcript, October 21, 2013, p. 34, ln. 24 p. 35, ln. 8, Compendium, Tab 6H, pp This evidence was significant because Dr. Getahun had described using two rolls of padded material prior to applying the plaster cast. See Transcript, October 22, 2013, pp , Compendium, Tab 61, p Transcript, October 21, 2013, p. 124, ln. 14 p 130, ln. 22, Compendium, Tab 6J, pp

16 12 tissue death. Added to the other symptoms and signs observed by Mr. Moore and others, and knowing the manner in which compartment syndrome develops, this evidence of the timing of the onset of the condition and relationship to the cast was important. Day Dr. Getahun testified about his interaction with Mr. Moore and explained that in the Hospitals at which he had been trained, full circumferential casts were used for the type of fracture suffered by Mr. Moore. He described applying padding and that the cast was not tight when Mr. Moore was discharged. He also explained his advice to the patient and his father on discharge, including in relation to their request to obtain a second opinion and follow up.41 Day Dr. Ronald Taylor was the first of two expert witnesses called by Dr. Getahun and the only one who practiced full time as an orthopedic surgeon in a community hospital setting.42 He supported Dr. Getahun's use of a full cast in this situation. He also expressed his opinion that the cause of the compartment syndrome was the fracture itself, although it could have been aggravated by the cast prior to its removal In accordance with the discussions that had occurred during the evidence of Dr. Richards, Dr. Taylor was asked questions in his examination in chief that incorporated some of 40 Transcript, October 21, 2013, p. 152, ln. 15 p. 158, ln. 24, Compendium, Tab 6K, pp Transcript, October 22, 2013, p. 80, ln. 7 p. 90, ln. 15, Compendium, Tab 6L, pp Transcript, October 23, 2013, p. 29, ln. 19 p. 31, In. 12, Compendium, Tab 6M, pp Transcript, October 23, 2013, p. 104, ln. 23 p.107, ln. 28, Compendium, Tab 6N, pp

17 13 the evidence heard at the trial. Counsel for Mr. Moore objected, on the basis that the witness should be confined to the facts he had known at the time he gave his report The Trial Judge agreed that the questions were appropriate but then stated that she believed the defence had taken a different position during the course of Dr. Richards' evidence. She and counsel for Dr. Getahun had an exchange that reveals that the Trial Judge did not understand the difference between the expert witnesses being asked questions that incorporate the facts developed at trial that relate to their opinion evidence expressed in reports exchanged in advance of trial, and the opening of new issues or fields of opinion that had not been disclosed previously. She suggested that counsel for the defendant was taking a different and unfair position now that their witness was in the box. She was incorrect Prior to cross-examination counsel for Mr. Moore obtained Dr. Taylor's file and it was reviewed over the lunch break. 49. Dr. Taylor was cross-examined in part on the draft reports found in his file. Dr. Taylor explained the process of drafting and revising his reports and indicated he had sent a draft of one of his two reports to counsel for Dr. Getahun for review.46 The Trial Judge picked up the issue of the draft reports and expanded the scope of the inquiry. 50. The Trial Judge interjected to request copies of the material being examined upon, focusing on the issue of what had been provided to counsel for Dr. Getahun: 44 Transcript, October 23, 2013, p. 87, ln. 23 p. 88, ln. 9, Compendium, Tab 60, pp Transcript, October 23, 2013, p. 89, ln. 21 p. 91, ln. 8, Compendium, Tab 6P, pp ; Transcript, October 23, 2013, p. 91,1n. 22 p. 95, In. 16, Compendium, Tab 6Q, pp Transcript, October 23, 2013, p. 115, ln. 28 p. 123, ln. 1, Compendium, Tab 6R, pp

18 14 THE COURT: What I want to know, what was sent to Lerners for comments in these various drafts? THE WITNESS: Well it's true I made several copies. I handwrite them and scan them and correct make corrections for grammatical errors, and I... THE COURT: Well, sir, what I am trying to understand, what was sent to Lerners for copies for comments? THE WITNESS: Oh. THE COURT: The scanned copies of the handwritten one? THE WITNESS: No. The handwritten ones were for my own personal use. They weren't sent to anybody The Trial Judge then requested that Dr. Taylor put his file in chronological order and requested information from counsel for Dr. Getahun as to their dealings with the witness: THE COURT: Okay, well, what I would like to have is what you have in chronological order, and I would like to know what you sent to Lerners for comments and what comments you got back, what that was all about. S o... MR. REGAN: Should we take a just a 15 minute break here Your Honour, see if we can do it quickly, or just carry on? THE COURT: Yes well, no what I am understanding of drafts of his reports went to Lerners before they were released and I am not I do not know if I am understanding that correctly. MR. REGAN: I don't know if I'm understanding that either, Your Honour, exactly what occurred. What I was going to do it just take one report, go through how that was done... THE COURT: I would like to know whether drafts were sent to Lerners and comments were made and changes were made, for obvious reasons. MR. REGAN: All right. Your Honour, if I could have ten minutes, I'll go through that file, I'll put one of these things in order... THE COURT: Okay. MR. REGAN: with the help of this doctor. THE COURT: And maybe Lerners can also help us with that discussions were between Lerners and the expert with respect to draft reports. We will take ten minutes Transcript, October 23, 2013, p. 118, ln. 16 p. 119, ln. 7, Compendium, Tab 6R, p Transcript, October 23, 2013, p. 121, ln. 8 p. 122, ln. 14, Compendium, Tab 6R, pp

19 Upon resuming the Court directed counsel for the plaintiff to conduct his crossexamination in another area until the papers were copied and organized by the Registrar.49 Upon the Registrar's return, the Trial Judge suggested Mr. Moore's counsel come back to the issue of the draft reports As counsel for Mr. Moore resumed his cross-examination on this issue, the Trial Judge weighed in herself directly: THE COURT: You had said in your evidence earlier that you sent to Lerner copies of some of the documents for comments? THE WITNESS: Yes. THE COURT: So, that what we are interested in knowing, is this pile of document which we have now marked as Exhibit 13, what did you send Lerner for comment? THE WITNESS: Well, it would have been the final draft. If they made comments, it would be a typo or grammatical error, or something like that that needed to be corrected.5i 53. Dr. Taylor said he made some minor corrections and revisions as a result of a telephone call with counsel for the defendant, but didn't know exactly what was changed. Counsel for Mr. Moore indicated to the Court that he did not intend to pursue this line of cross-examination any further unless the Court wished him to The cross-examination of Dr. Taylor continued on substantive matters to its conclusion. There was no re-examination. The Court then examined Dr. Taylor at length on his draft report: MR. REGAN: Yes. All right, those are my questions, Your Honour. MS. HUNTER: I have no re-examination. 49 Transcript, October 23, 2013, p. 122, ln. 21 p. 123, ln. 1, Compendium, Tab 6R, pp Transcnpt, October 23, 2013, p. 133, ln. 26 p. 141, ln. 12, Compendium, Tab 6S, pp Transcript, October 23, 2013, p. 139, ln , Compendium, Tab 6S, p Transcript, October 23, 2013, p. 141, ln. 9 12, Compendium, Tab 6S, p. 270.

20 16 THE COURT: Well, I have a couple of questions arising out of the notes and documents that were provided. Can you provide those to the witness please, Madame Registrar? COURT REGISTRAR: Certainly, Your Honour. TI-IE COURT: If you look, doctor, your handwritten notes? THE WITNESS: Yes. THE COURT: On and it appears that in my copies it's out of order on but it appears there is a note, dated September 6th, '13, if I am reading that correctly. Mine is the second last page. THE WITNESS: Oh, okay. THE COURT: Have you got that? THE WITNESS: I think so, yes. THE COURT: And it looks to me, it says "September 6th, '13", and it says, "9:30 to 11:00"? THE WITNESS: Maybe I don't second last page? MR. REGAN: Last page, Your Honour. MS. HUNTER: I think it's the last... THE COURT: No, maybe mine is in the wrong order. The second last page. MS. HUNTER: We have it as the last page. THE COURT: Okay, the last page. It should be the second last page. It is the last page. They are out of order. Have you got that, doctor? THE WITNESS: It's... THE COURT: The last page of the handwritten notes. THE WITNESS: Oh the handwritten notes. Okay. Sorry. Yes. September 6th, '13. THE COURT: And it says September 6th, '13. THE WITNESS: Yes. THE COURT: It says 9:30 to 11:00. THE WITNESS: Yes.

21 17 THE COURT: Was that a meeting with the lawyers? THE WITNESS: Yes. THE COURT: And was that to review your draft report of August 271h? THE WITNESS: It would have been, I guess, yes. THE COURT: So, and the comments that are made, there is two pages of comments going through the four pages of your report. Are those comments that were made and suggestions made by the lawyers of what to put in your report? THE WITNESS: Yes. THE COURT: Was there a similar meeting with respect to your first report with the lawyers? I do not have notes of that. THE WITNESS: I don't I can't say. I mean, my recollection was it was this is pretty well, like this is just I think pretty well it's just sort of grammatical stuff and stuff that made it unclear. THE COURT: So, you cannot remember whether there was a meeting with the lawyers to review the draft of your first report? THE WITNESS: Well, I think I usually review it, but just for you know corrections of grammatical things and making sure that it was sort of having somebody, yeah. I like my reports as well as I can make them to be reasonable, comprehensible and grammatically correct. Quite often do them so often, I can miss very obvious things that need to be corrected. THE COURT: Do you have I do not know whether there is did you receive letters of instructions from Lerners with respect to your retainer? That has not been produced. That normally is what I usually see. THE WITNESS: There are letters from Lerners, yes. They are not with this file. MR. REGAN: Is there another file? THE COURT: Is there another file? MS. HUNTER: We would certainly have copies in our file and we have no issue with producing them. We don't have them here in the court today but we can certainly produce those. THE COURT: Okay. THE WITNESS: That's what I thought, that there would be copies available.

22 MR. REGAN: Your Honour, if there's another file, I would like to see that file. THE WITNESS: Another file of? MR. REGAN: Whatever these documents are that you have, you said there's another file, or not with this file, so... THE WITNESS: Well, I didn't say another file. I said there were letters from lawyer from Lerners and I haven't included them in my notes, because I thought they would be reproducible from other sources. Well, I thought Lerners would have copies of those. MS. HUNTER: And as I say, we do, and we will produce them Arising from the Trial Judge's examination, counsel for Mr. Moore requested that the witness re-attend the following day with any other material relevant to the matter. The Trial Judge continued her pursuit of this issue and asked several questions of counsel for Dr. Getahun about the existence of other meetings: THE COURT: Okay. And then my second question is, was there a similar kind of meeting to review the draft of the first report with the witness? It may have been a phone call, it may not have been a face to face meeting and if so, are there minutes of that or there is a record of that?" 56. The Trial Judge then requested that counsel for Dr. Getahun bring all instructing letters that were provided to Dr. Taylor and any record of conference calls from their files to allow an assessment of Dr. Taylor's evidence that only minor changes were made.55 She directed Dr. Taylor should return the next day and the Court would open early to allow counsel to try to sort out answers to the questions she had raised in her inquiry Transcript, October 23, 2013, p. 173, ln. 22 p. 197, ln. 1; Compendium, Tab 6T, pp Transcript, October 23, 2013, p. 180, ln ; Compendium, Tab 6T, p Transcript, October 23, 2013, p. 182, ln. 10 p. 183, ln. 22, Compendium, Tab 6T, pp Transcript, October 23, 2013, p. 195, ln. 14 p. 196, ln. 10, Compendium, Tab 6T, pp

23 19 Day Dr. Taylor returned to Court at 9:30 the following morning. Counsel for Dr. Getahun provided a copy of all of the instructing letters sent to Dr. Taylor and confirmed that only one draft report had been sent to them. The Trial Judge insisted that all of the instructing letters be marked as Exhibits over the objections of counsel for Dr. Getahun. As a consequence of the Trial Judge's questioning of the witness, counsel for Dr. Getahun re-examined Dr. Taylor on the changes made to his report subsequent to the conference call. Each of the changes was minor, consistent with the witness's evidence the day before. He confirmed that his opinion was not influenced by counse Counsel for Mr. Moore was given the right to cross-examine the witness again. At the conclusion of the cross-examination, the Trial Judge took up the issue anew: THE COURT: Okay and do I understand your evidence that the notes referred to the two page notes reflect the discussion that you had with counsel for an hour and a half by telephone and my question is, was there discussion and agreement of what changes were going to be made to your report? THE WITNESS: Well, most of the changes were new paragraph here, a colon and sort of thing. THE COURT: Just answer my question, please. THE WITNESS: Well, the see, I can't remember that for sure, because I mean, I would have written the changes down as we went through it and looked at it and this is, you know, needs some work and this doesn't and this isn't clear and, but there was also the changes that were made when I took sections from the report and translated them into places like because we had reorganized it. That was a suggestion, reorganizing it, so clinical relevance and general considerations and clinic relevance Transcript, October 24, 2013, p. 13, ln. 13 p. 45, In. 28, Compendium, Tab 6U, pp Transcript, October 24, 2013, p. 73, ln. 12 p. 74, ln. 10; Compendium, Tab 6V, pp

24 The defence also called Dr. George Athwal, an Orthopaedic Surgeon who obtained his fellowship from the Royal College of Physicians and Surgeons of Canada in June of His professional and academic accomplishments were described in detail and on any objective measure, are impressive At the conclusion of the re-examinations of Dr. Athwal on his qualifications the Trial Judge asked a series of questions, including his age and whether the witness had been qualified as an expert previously. Although the plaintiff conceded the witness's ability to give opinion evidence, the Trial Judge appeared to consider his qualifications as an academic predominated and wondered whether he was to address the liability issues One point Dr. Athwal made was that there were regional differences in the standard of care when it came to casting of fractures like the one in issue. London, Ottawa and Kingston were described as medical centres where full casts were the approach.61 As a specialist he said he received patients with the same fracture who had full casts placed on by community hospital orthopedic surgeons. That was one real life example of the standard of care in action. No objection was taken to that evidence Dr. Athwal was not cross-examined by counsel for the plaintiff on any inconsistencies between his expert report and his oral testimony and the Trial Judge did not address any such 59 Transcript, October 24, 2013, p. 84, ln. 7 -p. 114, ln. 16, Compendium, Tab 6W, pp ; Exhibit 18, Day 6, Compendium, Tab 7, pp. 403, Transcript, October 24, 2013, p. 126, ln. 1-9, Compendium, Tab 6X, p See in contrast to this how the Trial Judge treated Dr. Richards qualifications, see Transcript, October 21, p. 46, ln. 10, Compendium, Tab 6Y, p. 363, where the Trial Judge accepted the witness as qualified before counsel for Dr. Getahun was invited to comment. Dr. Taylor's expertise was also given close scrutiny by the Trial Judge, see Transcript, October 23, 2013, pp and 46-47, Compendium, Tab 6Z, pp Transcript, October 24, 2013, p. 149, ln p. 150, ln. 10, Compendium, Tab 6AA, pp Transcript, October 24, 2013, p. 193, ln p. 194, In. 10, Compendium, Tab 6BB, p

25 21 issue at the time he testified. The witness agreed that if he knew Mr. Moore was to be operated on, he would have personally split the cast.63 If the patient wanted a second opinion about whether to have the surgery, then he would have used a full cast. 64 The Argument 63. Both parties filed written closing submissions and made oral argument the next day, October 26, A Court reporter was not present. 64. The closing written submissions of the plaintiff at trial do not address a number of issues that the Trial Judge eventually took up in her Reasons, including any issues about the telephone call between counsel and Dr. Taylor about his draft report, or arguments springing from facts not found in the record At the time of the closing submissions, the Trial Judge requested the parties make certain documents lettered and numbered exhibits, including the expert reports that had been exchanged. She also wanted transcripts of the evidence of the expert witnesses. The events from that day were described in a letter written to the Court by counsel for Dr. Getahun dated October 30, The Subsequent Appointments 66. On November 1, 2013 the Trial Judge requested counsel attend at Court in response to the letter of October 30, A reporter was present and a number of issues were raised about the documentary record arising from the last attendance and counsel's correspondence. During 63 Transcript, October 24, 2013, p. 182, ln. 24 p. 192, ln. 26, Compendium, Tab 6CC, pp Transcript, October 24, 2013, p , Compendium, Tab 6CC, pp Closing Submissions of the Plaintiff, Compendium, Tab 8A, pp Letter dated October 30, 2013 from Cynthia Kuehl to the Honourable Madam Justice Janet Wilson, Compendium, Tab 9A, pp

26 22 the course of that meeting the Trial Judge reiterated her request that the expert reports be admitted as exhibits and available to prove the truth of their contents. Neither side agreed to the Trial Judge's request and she did not press the matter further. Thus the expert reports delivered by the witnesses and exchanged by the parties should have been of no further use By an electronic message from her Judicial Law Clerk, the Trial Judge requested counsel file copies of all of their expert reports as lettered exhibits, along with the Google search addendum to Dr. Richards' report that she wished to make an exhibit. Further correspondence was exchanged by counsel. On December 23, 2013, about three weeks before the release of her Reasons, the Trial Judge once again summoned counsel to appear in Court to discuss the exhibits. She converted two exhibited expert reports into lettered exhibits The Trial Judge proceeded then to mark certain Google searches that were attachments to Dr. Richards' report of April 16, 2012 as Exhibit 25, over the objection of counsel for Dr. Getahun. 69 On her own initiative, she also marked all of the expert reports that had been provided to her as aids, as lettered exhibits.7 3. THE DECISION OF THE TRIAL JUDGE 69. The Trial Judge released an 87 page Judgment on January 14, She found that Dr. Getahun had fallen below the standard of care in two ways. First, by applying the full circumferential cast and second, by failing to adequately educate Mr. Moore about the risks and 67 Transcript, November 1, 2013, p. 10, ln. 8 -p. 11, ln. 24, Compendium, Tab 6DD, pp from Gillian Wright, Judicial Law Clerk, dated November 25, 2014, Compendium, Tab 9B, p. 591; Letter from Angelo Sciacca to Gillian Wright, Judicial Law Clerk, dated November 29, 2013, Compendium, Tab 9C, p. 592; Letter from Jennifer L. Hunter to Gillian Wright, Judicial Law Clerk, dated December 2, 2013, Compendium, Tab 9D, p Transcript, December 23, 2013, p. 6, ln p. 10, ln. 7, Compendium, Tab 6EE, pp Transcript, December 23, 2013, p. 1, ln p. 2, ln. 10, Compendium, Tab 6FF, pp

27 23 symptoms of compartment syndrome, an issue on which no expert opinion evidence as to the standard of care was led. The Trial Judge concluded that but for the application of the cast by Dr. Getahun, the compartment syndrome would not have developed. The Evidentiary Rulings 70. Several evidentiary rulings frame the Trial Judge's Reasons, including: (a) The admissibility of statements made in writing and orally by Dr. Orsini as res gestae; (b) The appropriate scope of the evidence of Dr. Tanzer, the emergency room physician; (c) Whether it was appropriate for counsel to review the draft expert report of Dr. Taylor; (d) Whether an expert witnesses should be limited in their evidence to the contents of their reports, or whether they can be questioned as to the facts in the case to test their opinions; and (e) Whether the evidence-in-chief of an expert witness should include their written reports? Reasons, at paras , Compendium, Tab 3, pp

28 24 (a) The Adinissibility of Statements of Dr. Orsini: Res Gestae 71. Consistent with her ruling on Day 3, the Trial Judge decided that the statements made in writing and orally by Dr. Orsini about the standard of care and causation were admissible as part of the res gestae, but not for their truth.72 (b) The Scope of the Evidence of Dr. Tanzer 72. The Trial Judge concluded that the decision of the Divisional Court in Westerhof v. Gee meant that Dr. Tanzer could provide evidence of his observations and conclusions but he could not provide opinions on the issues of causation or standard of care since he had not complied with Rule (c) Whether it was Appropriate for Counsel to Review Draft Expert Report of Dr. Taylor 73. The Trial Judge was critical of counsel for Dr. Getahun for reviewing and commenting on the draft of Dr. Taylor's expert report in several places in her reasons: [50] For reasons that I will more fully outline, the purpose of Rule is to ensure the expert witness' independence and integrity. The expert's primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude that counsel's prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable. [51] If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel. 72 Reasons, at paras , Compendium, Tab 3, pp ; It is apparent that Dr. Orsini's statements were considered by her and were of some influence but she did not expressly add those statements to the evidence she said she considered on the liability issues. 73 Reasons, at paras , , Compendium, Tab 3, pp

29 25 [52] I do not accept the suggestion in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC 272, 211 N.S.R. (2d) 201, that discussions with counsel of a draft report go to merely weight. The practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule as well as the expert's credibility and neutrality. [298] The practice formerly may have been for counsel to meet with experts to review and shape expert reports and opinions. However, I conclude that the changes in Rule preclude such a meeting to avoid perceptions of bias or actual bias. Such a practice puts counsel in a position of conflict as a potential witness, and undermines the independence of the expert. [299] If counsel seeks clarification or amplification after receipt of an expert's final report, all communication should be in writing, and any communication should be disclosed to the opposing party. [519] Defence counsel reviewed Dr. Taylor's draft report during a oneand-a-half-hour telephone conference call. [520] The purpose of Rule of the Rules of Civil Procedure is to ensure the independence and integrity of the expert witness. The expert's primary duty is to the court. In light of this change in the role of the expert witness under the new rule, I conclude that counsel's practice of reviewing draft reports should stop. There should be full disclosure in writing of any changes to an expert's final report as a result of counsel's corrections, suggestions, or clarifications, to ensure transparency in the process and to ensure that the expert witness is neutral. (d) Whether Expert Witnesses Should be Limited in Their Evidence to the Contents of Their Reports and Whether they can be Questioned as to the Facts in the Case 74. The suggestion that the expert witnesses should be confined to the facts set out in their reports had arisen in the context of the Trial Judge's wish to have Dr. Richards testify on a liability issue not raised in his report. The Trial Judge began her analysis of this issue by noting that she had proposed that the expert witnesses meet to "discuss amongst themselves the issues

30 26 based upon the facts that emerged during the trial to assess their opinions on liability" but that "counsel, particularly defence counsel, were reluctant to proceed in this manner" The Trial Judge set out her view of the disagreement about the evidence to be given by Dr. Richards: [59] In the alternative, I suggested to counsel that, if the experts did not meet or discuss matters amongst themselves, after the plaintiff's fact witnesses had testified, it would be helpful to put to each of the expert witnesses an agreed statement of fact or a statement containing factual differences prepared by both counsel to assess the expert opinion expressed in the medical reports in light of the evidence called at trial. The purpose of putting to each expert the facts as disclosed in the trial would be to ascertain whether the facts disclosed in the evidence in any way changed the expert's previous opinions on standard of care and causation as expressed in the reports. [60] Defence counsel strongly objected to this approach and asserted that the defendant was entitled to know the case he had to meet before testifying. If the experts, particularly Dr. Richards, were asked about issues or facts not specifically contained in their reports related to liability, defence counsel required an amended report from the plaintiff s expert and a trial adjournment to obtain further defence expert reports. The plaintiff did not want an adjournment. Therefore, based upon defence counsel's objections, the plaintiff's counsel agreed that Dr. Richards would limit his testimony in chief to the four corners of his reports. 76. The Trial Judge concluded that Dr. Richards, as a result of defence counsel's objections, had restricted his testimony to the four corners of the report. She criticized counsel for Dr. Getahun for not adhering to the same principle in the examination of their witnesses: [68] Interestingly enough, defence counsel did not follow the same rules when it came to questioning their own experts. Notwithstanding their position limiting the scope of Dr. Richards' evidence, I allowed defence counsel to explore facts and issues not directly contained in the defence expert reports that were latent in their reports, with a possible right of reply evidence by Dr. Richards. 74 Reasons, at para. 53, Compendium, Tab 3, p. 20.

31 27 [70] I disagree with defence counsel's submissions strictly limiting Dr. Richards' evidence to the content of his written reports. I agree with their more liberal approach in questioning their own expert witnesses. (e) Should the Evidence in Chief of an Expert Witness Include their Written Reports? 77. The Trial Judge expressed her view that expert reports should foiiii part of the evidence in chief of expert witnesses. Having found that her approach was consistent with the spirit of Rule 53.03, she concluded the defence counsel's position detracted from the pursuit of neutral and clear expert evidence. She again attributed the refusal to having the reports marked to Defence counsel exclusively. 78. The Trial Judge deteimined that she could not impose a requirement that the expert reports be made exhibits and called for the matter to be considered by the Civil Rules Committee or a higher Court. 79. Without hearing argument on the point, she concluded that she could use the letter exhibited expert reports to evaluate the credibility of the defence expert witnesses: [73] In any event, in light of defence counsel's insistence, I considered only the viva voce of the expert witnesses for its truth. However, where there was a conflict between the evidence at trial and the contents of the expert report, or if there were omissions in the expert report compared to the evidence given at trial, I conclude that the contents of the expert's report were admissible and relevant to assess the reliability and credibility of the expert's opinion. [Emphasis Added] 80. As a result, the Trial Judge used the lettered exhibits in her assessment of the weight to be given to the evidence of the two expert witnesses called by Dr. Getahun Reasons, at paras , 302, 315, Compendium, Tab 3, pp. 56, 57, 59.