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Articles and Publications

April 2016

Utilizing New Medical Technology in Today's Litigation

James Tomlinson
James Tomlinson,

Garett Harper
Garett Harper,

By Jim Tomlinson, and Garett Harper
First presented at a Transportation Law Seminar

When utilized properly, expert evidence can be a valuable tool in litigation. Experts are allowed to opine on key issues of fact at trial due to the specialized knowledge they possess in their respective fields. However, courts have increasingly scrutinized the admissibility of expert evidence in the past few decades, with the proliferation of expert evidence and the recurring problem that "many experts are no more than hired guns who tailor their reports and evidence to suit the client's needs."1This issue sparked Justice Osborne's recommendations on the use of expert evidence in civil proceedings in his report on reforming the civil justice system. Justice Osborne's report precipitated significant changes to the Rules of Civil Procedure (the "Rules") in order to minimize the unjust outcomes caused by relying on biased expert evidence.2

Although the courts are sceptical of "dubious science", the test for the admissibility of expert evidence still responds to ever-changing developments in science and technology. Consequently, defence counsel, in strategizing the long-term viability of a case, should consider whether new technologies can assist in illuminating the medical condition of plaintiffs and result in reduced future medical treatment and, therefore, reduced future care costs.

In order to introduce expert evidence counsel must first satisfy the threshold requirements of admissibility set out by the Supreme Court of Canada in R. v. Mohan: relevance, necessity, absence of an exclusionary rule, and a properly qualified expert. The court must find that the expert evidence is necessary and provides information likely to be outside the experience and knowledge of a judge or jury.4

Part I: The Expert Prior to Trial

When handling matters involving complicated medical prognoses, the benefits of retaining an expert more often than not outweigh the cost. However, there are numerous factors to consider in retaining an appropriate medical expert. The chosen expert should be comfortable with medical technologies in order to allow them to assist the court and alleviate any potential concerns.

Number of Experts

After determining that expert evidence is necessary, the issue then centres on how many experts to retain in order to effectively advocate a position. Complex matters such as serious personal injury cases often require numerous expert witnesses.3

Limitations are also placed by section 12 of the Evidence Act, which limits the number of expert witnesses a party may call, without leave, to three.5 In Burgess v. Wu the Ontario Superior Court found that section 12 of the Evidence Act limits a party to three expert witnesses in total rather than expert witnesses per issue.6

Despite the limits imposed on the number of experts by the Evidence Act, a trial judge has discretion to allow more than three experts to be called at trial. In order to avoid the uncertainty of being constrained to three experts at trial, changes were made to the Rules; Rule 56.06.8 permits the number of experts allowed to testify to be determined prior to trial.7

In Burgess the Court set out the following factors to be considered when parties exceed the three experts limit:

  1. Whether the opposing party objects to leave being granted
  2. The number of expert subjects in issue
  3. The number of experts each side proposes to have opine on each subject
  4. How many experts are customarily called in cases with similar issues?
  5. Will the opposing party be disadvantaged if leave is granted because the applying party will then have more experts than the opposing party?
  6. Is it necessary to call more than three experts in order to adduce evidence on the issues in dispute?
  7. How much duplication is there in the proposed opinions of different experts?
  8. Is the time and cost involved in calling the additional experts disproportionate to the amount at stake in the trial?8

Thus courts are more likely to abandon the three experts rule where expert opinions do not repeat or where the experts' qualifications diverge.

Duty of an Expert

The duty of an expert is to use their specialized knowledge and experience to provide unbiased and independent assistance to the court in reaching factual conclusions. To combat the risk that an expert witness assumes the role of an advocate, Rule 4.1 of the Rules prescribed a duty on expert witnesses that is owed to the Court, to provide evidence that is "fair, objective and non-partisan" within their respective areas of expertise.9

However, the Supreme Court of Canada stated that:

"For expert testimony to be inadmissible, more than a simple appearance of bias is necessary. The question is not whether a reasonable person would consider that the expert is not independent. Rather, what must be determined is whether the expert's lack of independence renders him or her incapable of giving an impartial opinion in the specific circumstances of the case."10

In view of the duty set out in Rule 4.1, Rule 53.03 was amended to further eliminate expert bias.11 Experts are also required to execute a "Form 53" which acts as the expert's acknowledgment of their duty to the Court.12 (See Appendix 1)

It is imperative to consider the duty of an expert before selecting appropriate experts.

It is imperative to consider the duty of an expert before selecting appropriate experts. They must be willing to comply with procedural rules and law, as the codification of this duty has made courts even more intolerant of experts who appear to be "hired guns".

The Expert Report

(i) Applicability of Rule 53.03 of the Rules of Civil Procedure

A failure to comply with the provisions of Rule 53.03 may prohibit an expert from testifying at trial. The determination of whether Rule 53.03 is applicable is reliant on the type of expert witness. In Westerhof v Gee Estate, the Court of Appeal established:

"A witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:

  1. The opinion to be given is based on the witness's observation of or participation in the events at issue; and
  2. The witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.13

The Court exempted non-party experts from compliance with expert report requirements, due to the fact that these experts have not been retained to provide expert evidence pursuant to Rule 53. In addition, the Court reasoned that the increased use of experts only increases the cost of litigation and delays proceedings.14

(ii) Preparation and Use of Expert Reports

In preparing an expert report, counsel must look not only to Rule 53.03(2.1)15, which sets out a list of information that reports must include but should also consider the Court of Appeal's decision in Marchand v. The Public General Hospital Society of Chatham.16

Marchand stands for the proposition that a party should not be unfairly surprised by expert evidence on an issue that was not raised in an expert's report.17 Counsel must advise their expert to include all material conclusions in their report. Material conclusions include any new technology that the expert intends to rely on in support of his or her testimony at trial. The opposing party should have adequate notice of expert evidence, which will be relied on at trial, particularly as new technologies may receive additional scrutiny from the court.

...counsel should caution their expert to avoid the use of overly technical language in conveying their expert opinion.

However, as impressive as scientific findings derived from new technologies may sound, counsel should caution their expert to avoid the use of overly technical language in conveying their expert opinion.

(iii) Rule on the Ultimate Issue

Although new medical technologies can greatly aid the court in determining an issue of law, experts should avoid ruling on the ultimate issue. The ultimate issue is a legal determination to be resolved by the trier of fact, for instance whether a party is liable or whether that party is entitled to damages. In accordance with the ‘ultimate issue rule', a witness cannot provide opinions or arrive at conclusions, which reflect the ultimate issue in the matter.

However, there is both case law prohibiting expert evidence from touching upon the ultimate issue and case law, which allow experts to fairly closely approach the limits of the ultimate issue. As the evidence offered by expert witnesses gets closer to answering the ultimate issue, this evidence will be subjected to increasing scrutiny by the Courts.18

In Chan v. Erin Mills Town Centre Corporation, the Ontario Superior Court allowed expert evidence that approached the ultimate issue. The plaintiff was a polio survivor who slipped and fell in a Loblaws store and fractured his one functional left leg. The main issue in the action centred on the relationship between the slip and fall and the onset of a progressive neuromuscular condition known as Post Polio Syndrome ("PPS"). Loblaws brought a motion to exclude the opinion evidence of the plaintiff's neurologist expert, who linked the incident to the onset of PPS. In assessing the necessity of the expert's evidence in assisting the trier of fact, the Court cited Sopinka J. who stated that necessity was not to be judged by too strict a standard.19In Mohan Sopinka J. cited Kelliher (Village of) v. Smith, "[t]he subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge."20 The Court in this case found that the neurologist's evidence satisfied the necessity requirement, as PPS, its risk factors and its relationship to trauma are outside common knowledge and experience.21

Defence counsel should nonetheless be wary that if expert evidence approaching the ultimate issue is deemed unnecessary to assist the trier of fact, the expert's report, in its entirety or portions of it could be omitted from evidence, resulting in an undefended aspect of the claim at trial.

Counsel should be particularly cautious to avoid opining on the ultimate issue in cases with novel expert evidence. The court in R. v. Meyer cited Mohan in stating, "Where expert evidence is novel, courts are to be particularly guarded since unreliable opinions on ultimate issues pose a greater danger to the integrity of findings."22

(iv) Scope of Production of Expert Files

The relationship between counsel and expert in the preparation and use of expert reports is a contentious issue. In 2015 the Court of Appeal, in the seminal case Moore v. Getahun, set out central principles surrounding the preparation and use of expert reports.23

The Court of Appeal found it appropriate for counsel and expert witnesses to consult in drafting expert reports. The Court elaborated,

"Reviewing a draft report enables counsel to ensure that the report (i) complies with the Rules of Civil Procedure and the rules of evidence, (ii) addresses and is restricted to the relevant issues and (iii) is written in a manner and style that is accessible and comprehensible."24

Draft reports and notes of consultations with expert witnesses are protected by litigation privilege but the Court stated that disclosure may be necessary in certain circumstances.

Draft expert reports, notes, and consultations regarding the report must be disclosed in two scenarios:

  1. If an expert is being called at trial, the Rules entitle the opposite party on discovery to obtain the expert's findings;25
  2. Where the party seeking production of draft reports and notes can establish "reasonable grounds to suspect that counsel communicated with an expert witness in a manner likely to interfere with the expert witness's duties of independence and objectivity"26

As a result of the decision in Moore and the amendments to the Rules, experts must be made aware of issues of privilege. As the contents of expert files are producible at discovery or trial, counsel should emphasize to their expert at the outset of the retainer that they must be well reasoned in arriving at conclusions. It may be prudent for an expert to ensure that their draft report is similar to their final report in order to minimize challenges to substantial changes made. Counsel should ensure that experts are always aware that they may be required to testify at trial on the contents of their reports.

Further, counsel should not make available to their expert other expert reports that they intend to claim privilege over. In Browne (Litigation Guardian of) v. Lavery, the Ontario Superior Court concluded that an expert report by one expert sent to another expert who is to be called at trial falls within the scope of production.27

Practically, the Advocates' Society recommended that counsel should enter into an agreement with opposing counsel to limit disclosure of draft reports and communications with experts in order to eliminate escalated demands for productions. However, in some cases the contents of an expert's file may be useful to demonstrate a lack of objectivity or independence.28

Answers should not be rehearsed with the expert; instead counsel should go through full practice runs.

Preparing an Expert for Trial

Counsel should meet with the expert and explain not only the strategy that they intend to use on questioning but their overall strategy for trial. Answers should not be rehearsed with the expert; instead counsel should go through full practice runs.

In order to prepare an expert for direct examination, counsel should review with the expert the facts along with the expert's qualifications, opinions, assumptions, alternative explanations, strengths, weaknesses, and the opinions of opposing experts.29

In order to prepare their expert for cross-examination, counsel should determine if the expert has made inconsistent previous statements by reviewing their previous statements and publications.30

Part II: The Expert at Trial

The trial judge's role is to act as gatekeeper in deciding whether or not to admit expert opinion evidence.

Qualification of an Expert

In order to satisfy the requirements of admissibility, an expert must first be qualified at trial before evidence is given. The expert qualification process involves questioning the expert on various aspects including his or her training, employment, institutional affiliation and publications.31

Counsel should carefully conduct due diligence and select a medical expert with superior expertise within their field. For instance, if functional magnetic resonance imaging is deemed helpful in illuminating the plaintiff's brain injury, it is imperative to ensure that the expert has participated in reputable studies on the technology at respectable centres. Selecting an appropriately qualified expert at the retainer stage will not only qualify the expert at the initial stages of trial but give the expert's testimony more weight when the Court is making a determination on an ultimate issue.

It may be strategically advantageous to engage in the formal qualification process even though opposing counsel consents to the determination that the witness is qualified. The court may give more weight to the expert evidence if the degree of the expert's qualification is first presented. This is particularly effective when there is a jury. Instead of merely confirming expertise through the expert's curriculum vitae counsel should actively question the expert on his or her training. Qualifying the expert on a question and answer basis links the matters addressed to the relevance of the witness's testimony.32

Direct Examination of an Expert

The purpose of direct examination is to convince the Court to attribute authority to an expert and their opinions.

The expert should avoid the use of technical language, but if required, they should explain the concept, as the goal of the exercise is to convince the trier of fact.33 In order to prevent a challenging cross-examination, limitations and information that may have alternative explanations should be addressed on direct examination.34

The expert should clearly define the new medical technology and communicate their opinion in terms easily understood by a layperson...

Of significance, the goal of admitting expert evidence is to effectively communicate a position to the trier of fact. Thus where new medical technology is used to support expert evidence, just as good counsel will consult their expert not to use overly technical language in their expert reports, it is imperative that this precaution is extended to expert testimony at trial. The expert should clearly define the new medical technology and communicate their opinion in terms easily understood by a layperson, with consideration given to their target audience of judges and juries.

Cross-Examination of an Expert

The purpose of cross-examination is to undermine the credibility of an expert and their opinions, as well as gain helpful admissions. Challenging the opinion of an expert witness on cross-examination is often much simpler than challenging the qualifications of that witness.

There are three primary methods of undermining an expert witness on cross-examination:

  1. Challenging the expert's own report;35
  2. Challenging the extent of the expert's qualification;36
  3. Distinguishing the expert's research and analytical methods from predominant practice in his or her field.37

Leading questions may be employed on cross-examination, which typically only elicit a "yes" or "no" response. Thus counsel should advise their experts that they should explain their answers, when appropriate, as science is rarely black and white. Experts should listen clearly to questions of opposing counsel and restrict their answers to the purview of the question and more importantly to their area of expertise.38

New Medical Technology and Techniques as Expert Evidence

New medical developments are constantly enhancing the world of science but also have the ability to play a significant role in our legal system. Medical advancements, such as functional magnetic resonance imaging ("fMRI") and hip resurfacing can greatly influence a judge or jury's consideration of expert testimony. The judicial system is however slower to accept new medical developments, as the courts do not possess scientific expertise.

(i) Novel Science Inquiry

If the new technology or technique is perceived as novel science, it must satisfy the standards set out in the American case, Daubert v Merrell Dow Pharmaceuticals, which has been adopted by Canadian courts. The expert evidence must be deemed sufficiently reliable, in other words scientifically valid to the court in order to be admitted into evidence.

Canadian courts take into consideration the following Daubert factors:

  1. Whether a technique can be (and has been) tested;
  2. Whether the technique has been subjected to peer review and publication;
  3. The known or potential rate of error of a particular scientific technique, and the existence and maintenance of standards controlling the technique's operation; and
  4. Whether there is general acceptance in the relevant scientific community.39

However, general acceptance in the relevant scientific community is only one of the factors requiring special scrutiny. The Supreme Court of Canada stated:

"A case-by-case evaluation of novel science is necessary in light of the changing nature of our scientific knowledge: it was once accepted by the highest authorities of the western world that the world was flat."40

The Daubert factors have wide application however they are not conclusive.41 The trier of fact need not be satisfied of all four factors in admitting sufficiently reliable expert evidence.

(ii) Treatment of New Technology by the Courts

New technologies, which have made quick leaps in the scientific community, undergo special scrutiny by the court, as complex scientific evidence can mislead and be given improper weight by the trier of fact.

Advanced Neuroimaging Techniques

In the realm of personal injury litigation, one of the most common types of neuroscientific evidence presented is evidence of traumatic brain injuries ("TBI"), conditions which can result in substantial damage awards for plaintiffs.

Functional Magnetic Resonance Imaging

The ability to measure the extent of a plaintiff's pain could alter the landscape of assessing damages in personal injury cases.

In the quickly developing field of neuroscience, fMRIs can measure neural activity in specific regions of the brain, which correlate to specific behaviours and even pain. The ability to measure the extent of a plaintiff's pain could alter the landscape of assessing damages in personal injury cases. To date, fMRIs only provide a real-time picture of the human brain and nervous system thus it is difficult to establish from a legal stance whether pathology will progressively get worse, better or remain the same. Given the "real-time" nature of this technology, it cannot assist the Courts with assessing causation. The use of fMRI to detect abnormal brain functioning has not yet been explored by the common law in Canada.

In Mackenzie v. Sidhu, the plaintiff brought a negligence claim for damages related to injuries sustained in a motor vehicle accident. The plaintiff suffered neuronal damage to the superficial nerve of her left leg. She suffered from pain and weakness to her lower back and left leg. She lost physical strength and conditioning that she was unlikely to regain. The plaintiff sought to admit the expert evidence of a neurologist with an expertise in chronic pain management. The Court ultimately accepted the neurologist's diagnosis that the plaintiff suffered chronic myofascial disorder as a result of the accident. However, the Court was unable to determine if the plaintiff, as an individual with chronic pain, was "susceptible to neuroplastic change and the development of an increased sensitivity to pain."42 The Court confirmed the lack of jurisprudence surrounding fMRI, stating, "Pending further research it is hoped that in future, techniques such as functional MR imaging (fMRI) may help to determine susceptibility to these changes and demonstrate them objectively when they are present."43

Similar to the treatment by the Courts of fMRI evidence, the usefulness and efficacy of fMRI evidence has been deemed "less well-established" by the scientific community.44 There is currently insufficient evidence that fMRI evidence can be used to diagnose TBI at the individual patient level.45 The American College of Radiology Head Injury Institute ("ACR Head Injury Institute") set out the main challenges for developing validated diagnostic tools to interpret advanced neuroimaging techniques within a single patient instead of within research studies:

"1) lack of large-scale, age-stratified normal data with available advanced neuroimaging techniques by using standardized protocols developed with consensus by clinical and research communities, 2) lack of clear patterns of injury that are predictive of clinical and neuropsychological deficits, and 3) poor definition of standard approaches to account for technical differences between clinical scanners that may introduce artifactual false-positives or -negatives into an assessment."46

However, the ACR Head Injury Institute spoke optimistically of the future of fMRI evidence:

"fMRI methods demonstrate great potential for evaluating brain subsystems that may underlie TBI-associated behavioral and cognitive impairment, including the detection of whole-brain changes in functional connectivity across a variety of brain networks, as well as more focused task-specific changes in functional activity among targeted brain subregions."

Diffusion Tensor Imaging

The use of Diffusion Tensor Imaging ("DTI") to detect brain injury has not been explored by Canadian courts. DTI is a relatively new magnetic resonance imaging technique that estimates the direction of water diffusion along muscle and neural tracts and examines white matter present within the central nervous system.

With respect to mTBI, DTI is seldom useful in diagnosing the condition. The Journal of American Academy, Psychiatry and the Law concluded, "Careful analysis of the DTI in mTBI literature, guided by Daubert criteria, suggests that, presently, the admission of DTI evidence in mTBI litigation is seldom appropriate." DTI may not be able to be used as evidence to establish mTBI until there are standardized techniques, error rates are eliminated, and its usefulness is more generally accepted within the scientific community.47

Although the efficacy of DTI in diagnosing mTBI is less well-established for individual patients, research data from group analyses lends credence to the use of DTI to diagnose other forms of TBI. The ACR Head Injury Institute reported, "Currently, there is evidence from group analyses that DTI can identify TBI-associated changes in the brain across a range of injury severity, from mild to severe TBI. Evidence also suggests that DTI has the sensitivity necessary to detect acute and chronic TBI-associated changes in the brain, some of which correlated with outcomes."48 Counsel should consult their medical expert to determine the usefulness of DTI in diagnosing different forms of brain injury.

Currently, fMRI and DTI can be used to refine and support well-established imaging techniques obtained in the course of litigation...

Currently, fMRI and DTI can be used to refine and support well-established imaging techniques obtained in the course of litigation, such as CT scans and MRIs.

Positron Emission Tomography: Established Techniques with New Applications

Even if a technique has been generally accepted by the scientific community, it will still attract scrutiny by the court if its application has not proven reliable in diagnosing certain conditions. Similar to MRIs, positron emission tomography ("PET") scans can show areas within the brain that activate in response to pain.

In Wolfin v. Shaw, the Court excluded the evidence of a psychiatrist who endeavoured to use the results of a positron emission topography ("PET") scan to diagnose mild traumatic brain injury ("TBI"). The plaintiff had a PET scan performed on him, which did not conform to the operational procedure suggested by the relevant authority in the field. The protocol applied to the plaintiff was for psychiatric patients participating in a research study.49

In Wolfin the Court found that "the functional abnormalities identified by PET scans are nonspecific and cannot be used to establish cause and effect relationships in patients with mild traumatic brain injury."50 Although at the time PET scans were not considered a novel technology, its use was not generally accepted for the diagnosis of mTBI. The protocol used was deemed experimental, as medical literature had not accepted the use of PET scans, the plaintiff signed a research protocol, and the plaintiff's medical team had not sought PET investigation prior to litigation.51

The evidence was ultimately found inadmissible, as the plaintiff failed to discharge his burden of establishing the reliability of the PET scan. The degree of uncertainty of PET scans was deemed unacceptable given the likely effect upon the trial and the trier of fact. The plaintiff's clinical history was not factored into the analysis of the PET scan, such the plaintiff's prior depression, the time that he last took medication, and the duration of and effect of his medications.52

PET scans are no longer considered a novel technology. However, in Wolfin, the Court did not accept its use for diagnosis of mild TBI ("mTBI"). The ACR Head Injury Institute later examined research studies on the possible utilization of PET to investigate TBI and concluded that more work was required to transform PET into a useful clinical tool.

Neuroimaging techniques such as fMRI, DTI, and PET have not had much success being admitted into evidence in the diagnosis of mTBI. As these technologies evolve, this evolution may soon lend more credence to these technologies in the eyes of the court. Practical factors must be considered before employing new techniques in litigation. For instance, the cost of utilizing new technologies and techniques will often be much greater than a traditional medical assessment. Defence counsel must weigh the substantial cost of using these techniques against the weight that it may lend expert testimony.

Orthopaedic Techniques

In the specialty of orthopaedics, hip resurfacing has gained traction as an alternative technique to traditional total hip replacement.

In the specialty of orthopaedics, hip resurfacing has gained traction as an alternative technique to traditional total hip replacement. With traditional hip replacements, the femoral head and neck are removed and the socket is replaced with a cup typically made of either metal, ceramic or plastic. A stemmed prosthesis is then inserted within the thigh bone. On the other hand, hip resurfacing leaves the femoral neck and head attached, preserving the bone, which is then reshaped to accept a metal cap. A shorter stemmed prosthesis is then inserted.

Hip resurfacing has various advantages. The preservation of bone results in fewer complications and further hip surgeries in the future, which is conducive to young and active individuals. Other benefits include shorter hospital stays, recovery and return to work times, and an increased ability to perform daily tasks. In addition, hip resurfacing results in significantly lower hip dislocation rates in comparison to traditional hip replacements.53

In Schmitt v. Thomson, the plaintiff sued for damages arising from a motor vehicle accident. She suffered severe injury to her left leg with pain from her outer hip to her knee. The plaintiff was 27 years old at the time of the accident and worked as a waitress. At the time this case was decided, joint replacement technology was not considered a viable solution given the plaintiff's young age and the short life expectancy of the artificial joint. An orthopaedic surgeon testified that the plaintiff would develop degenerative arthritis and would likely require a total knee replacement in the future. The plaintiff was awarded $180,000 in general damages, $243,200 in future care costs, and $450,000 in future wage loss.54 Three decades ago, advancements in joint replacement technology restricted the life expectancy of replacements to 5 to 10 years.55 In Schmitt if technology had advanced far enough to accommodate an immediate knee replacement, the Court would likely have reduced the plaintiff's damage awards for future care and wage loss.

More recently, advancements in technology have increased the life expectancy of artificial joints. In 2012, the Court in Tompkins v. Bruce deemed joint replacement to be a viable course of action. The plaintiff was 50 years old when he was involved in a motor vehicle accident. After the accident, the plaintiff underwent a left hip replacement, which improved his condition significantly. However, the hip replacement technology made it difficult to stretch the plaintiff's hip properly in order to alleviate pain, for fear of dislocation. The Court found that hip replacements lasted 15 years and it was reasonable to expect that the plaintiff would require a second hip replacement in the future. Due to the permanent damage to the plaintiff's knee and hip and the possibility of resulting deterioration, the Court awarded the plaintiff $200,000 in general damages. The plaintiff was awarded $425,000 in future loss of income and $87,450 in future care costs.56

In VD v. Ontario (Health Insurance Plan), the appellant appealed a decision which denied payment for the cost of hip resurfacing surgery performed outside of Canada. The appellant was injured in a motor vehicle accident 10 years earlier and suffered a fracture dislocation to his left hip. He had concerns with the traditional total hip replacement procedure, as his age and activity level would necessitate revision surgeries every 10 to 15 years. In order to determine whether the hip resurfacing surgery was an insured service under the Health Insurance Act, the Health Services Appeal and Review Board had to determine whether the treatment was considered experimental and therefore excluded as an insured service.57

The Board, in VD found that the procedure was not generally accepted as experimental in Ontario. The Board looked at medical literature on hip resurfacing, which confirmed that the procedure was not new. Hip resurfacing has merely advanced in recent years through the use of new prostheses and developments such as improvements in design, composition and implantation techniques. Further recommended study on the technique did not in itself indicate that hip resurfacing is experimental. The Board stated that refinements to established techniques were customary within the field of medicine. The Board did not find that the existence of more traditional total hip replacement techniques meant that hip resurfacing was experimental. The Board found hip resurfacing generally accepted within Ontario as suitable for an individual with the appellant's medical circumstances, as there was considerable evidence in support of hip resurfacing for younger and more active patients such as the Appellant.58

Although the courts have not considered the utility of hip resurfacing, tribunals have deemed that hip resurfacing is not an experimental procedure. With advancements in hip resurfacing lowering hip revision surgery rates, decreasing recovery times, and increasing capacity to perform daily tasks, plaintiffs will be constricted in their ability to recover increased damage awards.


Expert medical evidence can be an invaluable tool in defending claims. When appropriate, counsel should consult their expert and determine whether medical advancements would provide better alternatives than conventional technologies for future care, recovery and long-term prognosis. The use of new medical techniques may be beneficial in refining established imaging techniques obtained in the course of litigation. The expert should opine on relevant medical advancements in their expert report and on examination. New technologies can hold great weight in the eyes of the trier of fact and can provide a mechanism to reduce the plaintiff's damages at trial. Appropriate cases will likely be complex matters where the plaintiff is claiming substantial damages and the benefits of using a new technology or technique validates its potentially substantial cost.

Techniques, such as accident reconstruction technology that were once considered novel are now widely used in the courts as a tool for scientific analysis. Thus new techniques should not be discounted merely because they have not been used in court. There is promise in not only medical literature but in jurisprudence that in the future new techniques such as fMRI, DTI, and hip resurfacing will be given similar weight by the courts relative to established techniques such as CT scans and MRIs. Advancements are constantly being made in the field of medicine. New technologies have wide implications and may assist in shedding new light on the medical condition of the plaintiff thereby reducing their damages.

Appendix I


  1. My name is ______________________. I live at ______________, in the City of

    __________of ______________.

  2. I have been engaged by or on behalf of the _________________ to provide evidence in

    relation to the above-noted court proceeding.

  3. I acknowledge that it is my duty to provide evidence in relation to this proceeding as follows:

    (a) to provide opinion evidence that is fair, objective and non-partisan;

    (b) to provide opinion evidence that is related only to matters that are within my area of expertise; and

    (c) to provide such additional assistance as the court may reasonably require, to determine a matter in issue.

  4. I acknowledge that the duty referred to above prevails over any obligation which I may owe to any party by whome or on whose behalf I am engaged.

Date: _______________________

Signature: ____________________


NOTE: This form must be attached to any report signed by the expert and provided for the purposes of subrule 53.03(1) or (2) of the Rules of Civil Procedure.


1 The Honourable Coulter Osborne, Civil Justice Reform Project: Summary of Findings and Recommendations (Toronto: Ontario Ministry of the Attorney General, 2007) at para 33 (the Osborne Report").
2 Ibid.
3 Ibid at para 68.
4 [1994] 2 SCR 9 [Mohan].
5 Evidence Act, RSO 1990, c E 23, s 12.
6 [2005] OJ no 929 (SCJ) (WL) [Burgess].
7 Rules of Civil Procedure, RRO 1990, Reg 194,r 56.06(8).
8 Supra note 6 at para 35.
9 Supra note 7 at r 4.1(1).
10 Mouvement laíque québécois v Saguenay (City), 2015 SCC 16.
11 Supra note 6at r 53.03.
12 Beasley v Barrand, [2010] OJ no 1466 (SCJ) (WL).
13 2015 ONCA 206 at para 60 [Westerhof].
14 Ibid at para 77.
15 Supra note 7 at r 53.03(2.1).
16 (2000) 51 OR (3d) 97 [Marchand].
17 Ibid at para 38.
18 Supra note 4.
19 2005 CanLII 43678 at para (ON SC).
20 [1931] S.C.R. 672 at 684.
21 Supra note 19 at 34.
22 2012 ONCJ 791 at para 53; supra note 4 at para 32.
23 2015 ONCA 55 [Moore].
24 Ibid at para 63.
25 Supra note 7 atr 31.06(3).
26 Supra note 15 at para 86.
27 (2002) 58 OR (3d) 49 at para 51 (SCJ).
28 Supra note 18 at 12.
29 Glenn R. Anderson, Expert Evidence, 3rd ed. (Markham: LexisNexis Canada, 2014) at 574.
30 Ibid at 576.
31 Supra note 21 at 845.
32 Ibid at 846.
33 Ibid at 848.
34 Supra note 31 at 575.
35 Supra note 21 at 851.
36 Ibid at 852.
37 Ibid at 853.
38 Supra note 31 at 576-77.
39 113 S Ct 2786 (1993) [Daubert].
40 R v J – LJ, 2000 SCC 51.
41 Kumho Tire Co v Carmichael, 119 S Ct 1167 (1999).
42 2013 BCSC 925 at para 84.
43 Ibid.
44 Max Wintermark et al., Imaging Evidence and Recommendations for Traumatic Brain Injury: Advanced Neuro- and Neurovascular Imaging Techniques, AJNR Am J Neuroradiol 36:E1-E11 at E2 (February 2015).
45 Ibid.
46 Ibid.
47 Hal S. Wortzel et al., Diffusion Tensor Imaging in Mild Traumatic Brain Injury Litigation, J Am Acad Psychiatry Law 39:4:511-523 at 521 (December 2011).
48 Supra note 44 at E3.
49 [1998] BCJ no 5 (BCSC) (WL) [Wolfin].
50 Ibid at para 11.
51 Ibid at para 18.
52 Ibid at para 23.
53 Edwin P. Su, "Hip Resurfacing", online: Edwin P. Su, MD Orthopaedic Surgeon Hip Resurfacing
54 1992 CanLII 139 (BC SC) [Schmitt].
55 Kusick v Wildeboer, 1987 CanLII 3178 at para 58 (AB QB).
56 2012 BCSC 266.
57 2004 CanLII 69721 (ON HSARB) [VD].
58 Ibid.



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