IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130416

Docket: S129221

Registry:
New Westminster

Between:

Wayne Friebel

Plaintiff

And

Dr. Victor V.
Omelchenko

Defendant

Before:
The Honourable Madam Justice Ker

Oral Ruling on Voir Dire

[1]            
THE COURT: This ruling follows an application by the defence to
limit the scope of the area of expertise for which Dr. John McNeill, one of the
plaintiff’s experts, is entitled to offer expert opinion evidence.

Introduction

[2]            
The plaintiff, Mr. Wayne Friebel, is suing Dr. Victor Omelchenko for
what he alleges is substandard treatment by Dr. Omelchenko, his general
practitioner, in prescribing Ativan (also known as Lorazepam) to him on
December 30, 2009 to assist him in withdrawing from alcohol abuse. Mr. Friebel
is now a recovering alcoholic. At the time of the events in issue, Mr. Friebel
was endeavouring to withdraw from his excessive use, and indeed abuse, of
alcohol. Mr. Friebel was Dr. Omelchenko’s patient and had, since May 29, 2009,
been endeavouring to stop his abuse of alcohol.

[3]            
December 30, 2009 was Mr. Friebel’s third attempt at alcohol withdrawal
under Dr. Omelchenko’s care. On that day, he was given a further prescription
for Ativan which he had been given in May and July of 2009. He was doing his
alcohol withdrawal on an outpatient basis.

[4]            
The medication that Dr. Omelchenko prescribed on December 30, 2009 gave
Mr. Friebel access to a large number of 1 milligram Ativan tablets to be taken
at roughly six hour intervals over the next three days.

[5]            
Mr. Friebel says he followed the prescription instructions. He says he
has no memory of what happened to him from approximately 7:00 p.m. December 31,
2009 through 6:00 p.m. January 1, 2010 save for two brief impressions of some
sort of collision on January 1, 2010 and riding in a police vehicle on that
same date.

[6]            
On January 1, 2010, Mr. Friebel was involved in two or three motor
vehicle accidents. The last one occurred at approximately 3:00 p.m. at the
intersection of 130th Street and 68th Avenue in Surrey, B.C. He was arrested
for impaired driving at that time, taken to a nearby Surrey RCMP Detachment,
provided two breathalyzer samples, charged with impaired driving, and released
at approximately 6:00 p.m. Given the course of events described, Mr. Friebel
was also subject to a 90-day driving prohibition by the Superintendent of Motor
Vehicles.

Background and overview of Dr. McNeill

[7]            
Plaintiff’s counsel has called Dr. John McNeill as an expert in
pharmacology. Dr. McNeill is a retired professor emeritus and former Dean of
the UBC Faculty of Pharmaceutical Sciences. He retired in 2004. Dr. McNeill
testified on a voir dire into his qualifications after argument had been
heard about the scope of his expertise and how the defence sought to confine
Dr. McNeill on the opinion he can provide in this case.

[8]            
Dr. McNeill has written four reports dated February 1 and August 29,
2011, February 5 and March 20, 2013. The plaintiff has tendered all but the
first report. As I understand it, the entirety of the February 1, 2011 report
is contained in the August 29, 2011 report. As well, aspects of the February 1,
2011 report are repeated in the February 5, 2013 report.

[9]            
At the conclusion of Dr. McNeill’s evidence on the voir dire, I
qualified him as an expert in the field of pharmacology – capable of offering
expert opinion evidence on the science of drugs, their actions, common uses,
mechanisms, kinetics, side effects, toxicity, and interaction with other drugs and
the effect of drugs including alcohol and benzodiazepines affecting the central
nervous system with particular reference to their effects on the human body.

[10]        
Before Dr. McNeill testified, the defence objected to three areas
covered in the various reports offered by Dr. McNeill as being beyond the scope
of his expertise. At the conclusion of Dr. McNeill’s evidence on his
qualifications, the defence withdrew its objections to Dr. McNeill’s evidence
and opinion on the dosage information in his reports. The defence maintains its
objection as to Dr. McNeill’s opinions on the remaining two areas: (1) the
clinical management of a patient withdrawing from alcohol abuse; and (2) his
opinions providing a medical diagnosis of automatism and amnesia, saying they
are beyond the scope of his expertise.

[11]        
Mr. Friebel argues that Dr. McNeill is eminently qualified to provide
opinion evidence in all areas addressed in his report including his opinion on
the appropriateness of the clinical management of patients withdrawing from
alcohol abuse as well as automatism and amnesia.

[12]        
Dr. McNeill has a PhD. in pharmacology taken at the University of
Michigan Medical School. He obtained his BSc. in pharmacy studies and then
practiced as a pharmacist for three years from 1960 to 1963 in Edmonton. Thereafter,
he attended graduate school obtaining his Masters and then a PhD. in
pharmacology. Since 1971, he has taught pharmacology in the Faculty of
Pharmaceutical Sciences at UBC. Over the course of his career he taught students
from various faculties including medicine, nursing, pharmacy, veterinary
medicine, and dentistry.

[13]        
Pharmacology is the study of the science of drugs, what they do, how
they do it, dosages, how various drugs interact, the kinetic effect of how they
get into and out of the body, how they are metabolised, their side effects,
toxicity and the like. In teaching pharmacology, Dr. McNeill taught students
about the interaction of drugs on the human body. Dr. McNeill’s 87-page curriculum
vitae has in the order of 800 publications listed and was marked as Exhibit
5 in the proceedings.

[14]        
Although Dr. McNeill has no experience in treating patients, he teaches
about the issue of alcohol withdrawal. He confirmed, however, that he has no
clinical experience in managing alcohol withdrawal or applying guidelines as he
is not a clinician and does not see patients. Instead, he provides information
about drugs to the clinicians who do see patients.

[15]        
Dr. McNeill conceded his primary area of interest for research is
cardiac events and diabetes. He has not published any papers on the effects of Lorazepam
or the use of alcohol with one exception of a co-authored paper on
breathalyzers.  He has not written any papers on benzodiazepines.

[16]        
Dr. McNeill appears to have little to no experience in the complicated
area of automatism; largely a legal construct that, in medical terms, relates
to a dissociative state usually brought about by an underlying medical
condition. He has read about automatism a bit; however, reference to the term
in his reports appears to have its genesis in discussion with plaintiff’s
counsel in preparation for providing his expert opinion. Dr. McNeill has no
training in psychiatry; his sole basis for any opinion with respect to
automatism in this case appears to be his review of an article by Dr. Julio
Arboleda-Florez of the Department of Psychiatry at Queen’s University entitled,
"On Automatism" published in Current Opinion in Psychiatry, 15(6):
569-576, November, 2002.

[17]        
It is clear from Dr. McNeill’s evidence that he has significant
experience with respect to dosage information and on the general effects of
drugs on a patient, including their side effects. It is equally clear, however,
that he has no clinical experience in the management of alcohol withdrawal
patients, or the diagnosis of patients in various medical states including
amnesia or dissociative states.

Analysis

[18]        
I turn first to the general principles that govern the admissibility of
expert opinion evidence. In R. v. Mohan (1994), 89 C.C.C. (3d) 402, Mr.
Justice Sopinka writing for the Court outlined at p. 411 that:

Admission of expert evidence depends on the application of
the following criteria:

(a)        relevance;

(b)        necessity in assisting the trier of fact;

(c)        the absence of any exclusionary rule;

(d)        a properly qualified
expert.

[19]        
In R. v. Cameron, 2013 ONSC 1203 Madam Justice Parfett summarized
the last criterion of a properly qualified expert in the following manner:

[18]      … The starting point for the analysis of whether
a particular witness who is being proffered as an expert is, in fact, an expert
in the area in which it is proposed s/he will give evidence is that the witness
"possess special knowledge and experience going beyond that of the trier
of fact" (R. v. Beland (1987) 36 C.C.C. (3d) 481 (S.C.C.) at
p. 494). Furthermore, it has been held that deficiencies in the expertise go to
weight, not admissibility (R. v. Marquard (1993), 85 C.C.C. (3d) 193
(S.C.C.) at p. 224). Finally, it is accepted that:

The admissibility of [expert] evidence does not depend upon
the means by which that skill was acquired. As long as the court is satisfied
that the witness is sufficiently experienced in the subject-matter at issue,
the court will not be concerned with whether his or her skill was derived from
specific studies or by practical training, although that may affect the weight
to be given to the evidence.

[Internal citations
omitted.]

[20]        
In the current application, the issue reduces to whether Dr. McNeill as
a pharmacologist is a properly qualified expert capable of offering an opinion
in the areas of:

(a)      the
clinical management of patients undergoing alcohol withdrawal including the
requisite supervision regime to be put in place;

(b)      a
medical diagnosis of amnesia for any patient, including Mr. Friebel; and

(c)      an
opinion on whether Mr. Friebel was in a state of automatism on the dates in
question.

[21]        
As I noted earlier, Dr. McNeill is clearly qualified to give expert
opinion evidence on the effects and side effects of the drugs in issue in this
case. The defence concedes he is also properly qualified to give an expert
opinion with respect to the dosage and dosage information for the drugs in
issue in this case. His degrees and the fact of his decades of teaching
pharmacology make that patently obviously. Accordingly, he will be permitted to
provide expert opinion in the areas with respect to dosage of the medication
and its general side effects.

Can Dr. McNeill offer an expert opinion on the standard of care with
respect to the clinical management of a patient undergoing alcohol withdrawal
in an outpatient setting?

[22]        
Mr. Friebel argues he can, submitting that Dr. McNeill is an expert on
the literature and protocols on the effects of drugs on the body. As such, he
is qualified to give an opinion as to the appropriateness of the monitoring of an
outpatient detoxification. He further argues that, at the very least, Dr.
McNeill is qualified to testify that the lack of monitoring of the patient,
here Mr. Friebel, is not supported by the medical literature and protocols.

[23]        
With respect, I disagree. Dr. McNeill’s evidence made it abundantly
clear that he has no clinical practice; he does not treat patients, and he has
no clinical experience in the management of patients undergoing alcohol
withdrawal and no experience in applying the guidelines and protocols. His
opinion with respect to outpatient treatment and the appropriateness of the
protocols appears to be based solely on a review of the literature in an area in
which he has never practiced. An opinion on the standard of care with respect
to the clinical management of patients undergoing alcohol withdrawal including
the supervision thereof is clearly beyond the scope of his expertise,
experience, and training. Accordingly, Dr. McNeill cannot offer an opinion in
that area.

[24]        
As was done in Rhodes v. Biggar, 2010 BCSC 762 the offending
passages in Dr. McNeill’s report that address and offer an opinion on the
clinical management of patients undergoing alcohol withdrawal including the
supervision thereof and any related opinion with respect to the standard of care
on this issue, insofar as Mr. Friebel’s treatment is concerned, are to be
redacted from Dr. McNeill’s report.

Can Dr. McNeill offer an expert opinion with respect to the medical
diagnosis of amnesia in Mr. Friebel’s case?

[25]        
While Dr. McNeill can provide an opinion on the effects and side effects
of drugs such as Lorazepam – including that it can cause amnesia and memory
loss – I find that his blending of the general side effects into the
particulars of this case appears to be an opinion that improperly entrenches
upon the ultimate issue in this case. Moreover, it represents an assessment of
the physical or mental condition of an individual, something governed by the Medical
Practitioners’ Regulations, BC Reg. 416/2008 which states that only a
member of the College of Physicians and Surgeons of British Columbia may
practice medicine in British Columbia. Medicine is defined as follows:

"medicine" means the health profession in which a
person provides the services of

(a)        assessment
and management of the physical or mental condition of an individual or group of
individuals at any stage of the biological life cycle, including the prenatal
and post-mortem periods,

(b)        prevention
and treatment of physical and mental diseases, disorders and conditions, and

(c)        promotion of good
health;….

[26]        
Section 4(2) states:

4 (2)     Only a registrant may
provide a service of medicine as set out in this regulation if, on the day
before this section comes into force, the provision of the same service by
anyone other than a person authorized under the Medical Practitioners Act
was prohibited.

[27]        
Dr. McNeill is not so registered and therefore is prohibited from
performing diagnoses of human ailments or the physical or mental condition of a
person. Dr. McNeil’s diagnosis and accompanying opinion moves into the
realm of offering a specific opinion that Mr. Friebel suffered from amnesia
which is a diagnosis which involves the application of various criteria and a
fully informed assessment by a medical practitioner.

[28]        
In Rhodes, supra, at para. 87 Madam Justice Russell restricted a
massage therapist in the extent of her opinion that called for a medical
diagnosis of the patient’s condition.

[29]        
Because medicine covers a vast array of specialized fields the courts
have routinely confined experts in their opinions and restricted them to
providing opinions within their own field of expertise. For instance, Mr.
Justice Cohen determined in Dobie v. Dlin (2001), 95 B.C.L.R. (3d) 179
that a cardiac surgeon could not offer opinion evidence with respect to the
expected standard of care provided by a cardiologist.

[30]        
Although Dr. McNeill can offer an expert opinion that the side effects
of Ativan may include memory loss and amnesia, he cannot go on to opine that
Mr. Friebel was so afflicted in this instance.

Can Dr. McNeill provide an opinion on the underlying medical conditions
which may lead to a state of automatism?

[31]        
Automatism is a legal construct used to describe one specific kind of
involuntary action that is the product of a mental state in which the conscious
mind is dissociated from the part of the mind that controls actions. Automatism,
legally speaking, comes in two forms:  non-mental disorder automatism (sometimes
referred to as “sane automatism”) and mental disorder automatism (sometimes
referred to as “insane automatism”). It most frequently arises in the criminal
law context where an accused charged with a criminal offence seeks to avoid
liability by arguing that his or her actions were involuntary.

[32]        
In R. v. Luedecke, [2008] O.J. No. 4049 (C.A.), Mr. Justice
Doherty writing for the Ontario Court of Appeal, fully reviewed and commented
upon the current law of automatism.

[33]        
In that case, the accused was acquitted at trial of sexual assault
claiming he was asleep when he sexually assaulted the complainant. A sleep
disorder expert diagnosed the accused as suffering from parasomnia, a disorder
in which a person experiences a sudden unexplained arousal from deep sleep
where the person is unaware of what he is doing and behaves in abnormal ways. The
expert opined as well that parasomnia was not a mental illness or disease of
the mind. The trial found that the accused satisfied the test for non-mental
disorder automatism. The trial judge found the accused’s actions were
involuntary, that he had no control over his actions, and that they were not
the product of mental disorder. The accused was acquitted.

[34]        
A Crown appeal was allowed and a new trial ordered confined to the issue
of whether the accused should be found not criminally responsible by reason of
mental disorder under s. 16 of the Criminal Code or acquitted on the
basis of non-mental disorder automatism. Justice Doherty’s judgment in Luedecke,
supra, provides a comprehensive and insightful review of the current
complex law of sane or non-mental disorder automatism.

[35]        
In R. v. Stone, [1999] S.C.J. No. 27 the majority of the Supreme
Court of Canada took judicial notice that it will only be in rare cases that
automatism is not caused by mental disorder. Indeed, many cases have noted that
since Stone, claims of non-mental disorder automatism are limited to
those rare "one off" cases in which an accused suffers a single
incident of automatism and where the accused complained of some specific
external event that precipitated that event so as to demonstrate that the event
is unlikely to be the subject of a reoccurrence and can also show that the
event could have produced a dissociative state in an otherwise
"normal" person.

[36]        
It should be apparent from this limited review of the jurisprudence that
automatism is a very complicated area of the criminal law. It is also a medical
term as Dr. Arboleda-Florez notes in his article at p. 569 used to describe a
set of behaviours "outside the conscious control of the patient".

[37]        
As is apparent from the article and the jurisprudence the medical
construct of automatism encompasses a broad spectrum of behaviours including
neurological and schizophrenic conditions, dissociative reactions,
psychological blows, somnambulism and alcohol intoxication. The medical
conditions that underlie a state of (medical) automatism are often serious and
they usually require a diagnosis and treatment by a medical doctor, usually a
specialist in psychiatry, assisted with reference to the DSM 4-TR, the Diagnostic
and Statistical Manual of Mental Disorders published by the American
Psychiatric Associations.

[38]        
The decision of Madam Justice Parfett in Cameron, supra, reviewed
the concept of automatism in determining whether a particular forensic
psychiatrist retained by the Crown on a first degree murder trial could be
qualified to give expert evidence to refute the defence claim that the accused
was in a state of mental disorder automatism at the time he shot his
daughter-in-law. The Crown expert was a forensic psychiatrist and although he
was perhaps lax in his application of proper methodology, he nevertheless was
qualified to give an opinion in the area of automatism.

[39]        
The plaintiff relies upon the decision of R. v. DeVingt (1999),
46 M.V.R. (3d) 56, [1999] O.J. No. 3610 (Ont. Ct. Jus.) and R. v. McIntyre,
(1992), 100 Nfld. & P.E.I.R. 144 (P.E.I. S.C.) at para. 32 as support for
the proposition that a pharmacologist is able to provide opinion evidence on
the issue of automatism.

[40]        
In DeVingt, supra, a forensic toxicologist, not a psychiatrist,
was permitted to provide evidence as to the probable impact of the admitted and
established overdose of diphenhydramine had on the accused charged with
impaired driving. In that case the accused had taken a potential lethal
overdose of sleeping pills in an effort to commit suicide. In permitting the
toxicologist to give expert opinion evidence, Reinhardt J. stated at paras. 28 and
30 (QL):

28.       In the case at bar, the defence argues that it was
a "pharmaceutical blow" caused by a potential toxic overdose of
diphehydramine that was the cause of the automatism. In this context, bearing
in mind the dicta from Bastarache, J. in Stone, I think it is consistent
with the reasoning of the Supreme Court to consider the evidence of a pharmacologist
as the appropriate evidence. The relative certainty expressed by the experts in
Parks although conclusive in the eyes of the jury in that case, is still a
series of opinions, based upon the evidence. It must be subject to the scrutiny
and approval by the trier of fact. (See Mewett and Sankoff, Witnesses, Chapter
10, "Admissibility of Expert Evidence", Carswell, 1999.)

…

30. Dr. Cooper is a
forensic toxicologist, with many years of clinical work and research at the
Universities of Toronto and Montreal to his credit, including work with
psychotomimetics and antihistamines. After careful consideration of the
procedural and evidentiary guidelines set out in Stone for a proper
consideration of the sane automatism defence, I have concluded that Dr. Cooper
has the appropriate credentials to provide the court with evidence as to the
probable impact of the overdose on Mr. DeVingt. Although he is not a
psychiatrist, he was able to acquaint me with the likely physical and mental
effects on the individual that result from the blood levels of diphenhydramine
found conclusively to have been present in Mr. DeVingt that night. His
extrapolations back to the time of driving are the type of interpretations that
he is trained to make. He has been qualified on many previous occasions to give
this type of evidence involving alcohol and drugs.

[41]        
However, on summary conviction appeal by the Crown, Mr. Justice Dambrot
overturned the acquittal finding that self-induced intoxication, even bordering
on automatism, was not an available defence for impaired driving: R. v.
DeVingt (2001), 13 M.V.R. (4th) 131, [2001] O.J. No. 521 (Sup. Ct. Jus.) at
para. 47.

[42]        
In McIntyre, supra, the trial judge permitted a pharmacologist to
provide opinion evidence on the effect of alcohol and drugs consumed by the
accused on his intent, ability, and behaviour in relation to a charge of
assault causing bodily harm. Dr. Rockerbie provided opinion evidence about the
effects of the dosage of two Ativan pills on an obese accused and opined that it
represented an overdose. He also provided an opinion on the issue of automatism.
Two forensic psychiatrists also proffered an opinion on the accused being in a
state of automatism at the time. All the experts were agreed that the accused
could reach a state of automatism through the combined ingestion of alcohol and
drugs.

[43]        
It is apparent from these two decisions that, in some contexts, a
pharmacologist or a toxicologist may be able to provide some opinion evidence
with respect to the effects of alcohol and drugs on an individual and whether
that renders the accused into an involuntary state of automatism. However, Stone,
Luedecke, and Cameron, supra, appear to require that the expert have
a certain magnitude of experience in the area in terms of diagnosis and
treatment for such a condition.

[44]        
Having heard Dr. McNeill’s evidence on his qualifications on the voir
dire, it is clear that he is not entirely familiar with either the medical
or legal attributes relating to the construct of automatism and does not
possess the requisite special knowledge and experience in the realm of assessing
and diagnosing automatism.

[45]        
Accordingly, I find that the opinions with respect to automatism, the
medical diagnosis of the underlying condition and whether Mr. Friebel was in a
state of automatism are beyond the scope of Dr. McNeill’s expertise and
therefore he is not capable of offering an expert opinion with respect to the
diagnosis of automatism in this case.

[46]        
Accordingly, Dr. McNeill’s reports tendered by the plaintiff are to be
redacted to remove the sections dealing with the clinical management,
monitoring, and supervision of patients in the outpatient setting, and the
sections dealing with the diagnosis of amnesia and automatism.

“Ker
J.”