Judgment Set Aside and Multi-million Dollar Claim Sent Back for New Trial After Successful Appeal by Sommers Roth & Elmaleh

The plaintiff was born in the summer of 1999 and was diagnosed with severe hydrocephalus when he was around four months old. He is now 23 years old and has cognitive and physical disabilities.

The plaintiff sued Dr. C and Dr. P for negligence, alleging that they delayed in diagnosing and treating his hydrocephalus and that this delay caused his brain damage. Hydrocephalus is an abnormal buildup of fluid in the ventricles (cavities) deep within the brain. This excess fluid causes the ventricles to widen, putting pressure on the brain’s tissues and results in an unusually large head. The plaintiff’s mother alleged that she raised the concerns about her baby’s head size at each visit, and each time she was told that it was normal.

At trial, the plaintiff alleged that Drs. C and P had breached the respective and applicable standards of care in failing to take appropriate steps to see that the plaintiff was followed up when they had first noted his large head circumference.

After a lengthy jury trial during which some 27 experts testified, the jury found that the standard of care had been met by the defendants, and the trial judge dismissed the action.

The plaintiff (appellant) sought a new trial on the basis that:

1. The only expert on standard of care for the defendants gave evidence that went far beyond the scope of his expertise.
2. The expert failed to demonstrate impartiality.
3. The expert usurped the jury’s proper role in opining on core credibility and factual questions, which included what the defendant doctors had actually told the plaintiff’s mother, and whether she had followed the advice she was given.

The defendants (respondents) argued that their expert was not biased and that his evidence fell within the appropriate bounds. Moreover, they argued that the failure of the appellant’s trial counsel to object to this evidence precludes them from raising this issue on appeal.

The Court of Appeal for Ontario allowed the appeal and ordered the new trial on the basis that the trial judge failed to take two very important steps at the time that the defence expert was testifying:

1. The trial judge should have, in the absence of the jury, invited submissions from the parties as to the content of a mid-trial instruction that the jury ignore any and all of the defence expert’s expressions as to the credibility or reliability of the witnesses.
2. The trial judge should have included a very clear and specific instruction in the final charge on the point. Instead, the trial judge made a general comment that it was entirely up to the jury to decide “[h]ow much or how little [they] believe of or rely upon an expert’s opinion”. On appeal, this comment was held to have been wholly inadequate given the risk that the jury would place undue weight on the defence expert’s opinion.

As stated above, the respondents argued that the appellant’s counsel’s failure to raise the issue of the defence expert’s impartiality during the trial was fatal on the appeal, and that the appellant should be precluded from raising this issue on appeal.

While it is true that an appellant cannot ask for a new trial as of right due to an error during the trial when no objection was made on the point at trial, and that the failure to have objected at trial is usually fatal to an appeal, there are exceptions in certain cases. The Court of Appeal for Ontario correctly exercised its discretion, and held that when the court is satisfied that a new trial is necessary in the interests of justice, and when an objection is made on appeal that was not made at trial, the focus should be on the question of whether a substantial wrong or miscarriage of justice has occurred.

In this case, the fact that the trial judge erred in failing to advise the jury that it could not consider the defence expert’s evidence on the credibility and reliability of the parties was highly prejudicial to the plaintiff and constituted a miscarriage of justice. Accordingly, the appeal was allowed, judgment was set aside, and a new trial was ordered, with costs of the appeal being payable by the respondents to the appellant.

The new trial has not yet been set down and is expected to take place sometime in 2023.