IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100421

Docket:
05-5004

Registry: Victoria

Between:

Sucha
More, Cindy More and Darren More
By his Litigation Guardian Sucha More

Plaintiffs

And:

Bauer Nike Hockey Inc., Bauer Hockey Corp., The Canadian Standards
Association and The Emergency and Health Services Commission

Defendants

And:

Bauer Nike Hockey Inc., Nike Bauer Hockey Inc., Nike Bauer Hockey
Corp.,
Sucha More, Cindy More, Corporation of the Township of Esquimalt,
Her Majesty the Queen in Right of the Province of British Columbia,
Emergency and Health Services Commission and
The British Columbia Ambulance Services

Third Parties

Before: The Honourable Mr. Justice Macaulay

Ruling Re Admissibility of Expert Evidence

[1]            
Dr. Stalnaker has a Ph.D. in theoretical and
applied mechanics. Through much of his lengthy career, he has worked in the
branch field of biomechanics. He also has practical experience in standards
development for certification purposes although not specifically with regard to
hockey helmet standards. Biomechanics involves the study of body kinematics ‑
the forces applied to biological tissue and the injuries that can result. The
plaintiffs sought to qualify Dr. Stalnaker as an expert in biomechanics and the
biomechanics of safety standards.

[2]            
Counsel for the Bauer defendants and counsel for
the CSA did not challenge the witness’s qualifications to give opinion evidence
in these fields. Nor did they object to Dr. Stalnaker’s report and rebuttal
reports being accepted into evidence, subject to some agreed upon deletions.

[3]            
In an unusual application at the conclusion of
Dr. Stalnaker’s oral evidence, the defendants seek to have the entirety of his
evidence, written and oral, excluded as inadmissible. The defendants’ principal
contention is that Dr. Stalnaker’s underlying methodology and science are so
flawed that the evidence does not meet the necessity test articulated in R.
v. Mohan, [1994] 2 S.C.R. 9, 114 D.L.R. (4th) 419. The defendant, CSA, goes
further and forcibly submits that Dr. Stalnaker is biased and purposely misled
the court to assist the plaintiffs.

[4]            
For the following reasons, I conclude that Dr.
Stalnaker’s opinion evidence is admissible. The factors that the defendants
rely upon go, in my view, to the ultimate weight of the opinions rather than to
admissibility.

[5]            
It is important to keep in mind the issues in
respect of which the evidence is relevant. The plaintiffs allege that on
November 11, 2004, Darren More, a Midget player at the Rep Team level, collided
with the boards while playing ice hockey, “striking his back and helmeted head
against the boards.” The plaintiffs say that Darren sustained a serious
traumatic head injury as a result. Darren was 17 when the incident occurred.

[6]            
The helmet in question was a CSA certified
HH5000L that the Bauer defendants manufactured about four years before the
accident. The CSA certification was based upon the 1990 standard applicable to
ice hockey helmets in Canada. All hockey helmets had to be certified before
being offered for sale and all players in organized hockey were required to
wear a CSA certified helmet.

[7]            
Darren’s father purchased the helmet new in
January 2003. Darren wore the helmet when playing organized hockey from that
point until his accident in November 2004.

[8]            
I summarize the allegations against the Bauer
defendants and the CSA as follows:

The Bauer defendants:

 1.       Failed to design and manufacture a helmet that
provided protection from serious head injury when used in hockey games;

 2.       Failed to provide “sufficiently effective liners
or impact attenuation lining materials” for its helmets to protect against
helmet collision with the boards of the rink;

 3.       Designed and tested helmets to meet the CSA
standard when it knew or ought to have known that the standard was inadequate
to “achieve protection from serious head injury”;

 4.       Manufactured and distributed for sale the HH5000L
knowing that it was inadequate to provide protection from serious head injury;
and

 5.       Participated in discussions and decisions
regarding the CSA hockey helmet standard, testing methods and criteria such
that they knew or ought to have known that the 1990 standard was inadequate.

The CSA:

 1.       Failed to adopt a standard that would ensure
protection from serious head injury;

 2.       Failed to take any or reasonable steps to develop
and adopt a more rigorous standard having regard to the foreseeable hazards
that ice hockey players encounter during hockey games; and

 3.       Issued “Certified Hockey Helmet” labels to Bauer
for the HH5000L when it knew or ought to have known that such labels would lead
the plaintiffs, as users, to believe that the helmet would protect against
serious head injury.

[9]            
The Stalnaker evidence goes to several issues
relating to the above but primarily addresses the alleged inadequacy of the
1990 standard, which remains unchanged to date, to provide adequate protection
against serious head injury; the alleged primarily translational, or linear,
application of forces involved in the accident against the rear of the helmet,
said to be consistent with Darren’s brain injury; and, finally, the testing,
recording and interpreting of the relative performances of four helmets: a used
HH5000L helmet; a second used HH5000L helmet with a modified rear liner; a new
HH5100L helmet that first came onto the market in 2009; and finally, a new
HH9500L helmet that Bauer fabricated in 2008.

[10]        
I am satisfied that these are subjects beyond
the experience of a layperson. I do not accept the contention of the Bauer
defendants that I do not require the assistance of an expert to address the
issues raised. In reaching that conclusion, I am mindful of the trenchant
criticisms respecting the unnecessary and inappropriate expert evidence
proffered in Sengbusch v. Priest (1987), 14 B.C.L.R. (2d) 26 (S.C.), and
Mazur v. Moody (1987), 14 B.C.L.R. (2d) 240 (S.C.).

[11]        
Mr. Justice Doherty of the Ontario Court of Appeal
described the role of expert witnesses in the adversarial system in R. v.
Abbey, 2009 ONCA 624, 97 O.R. (3d) 330:

[71]      It is fundamental to the adversary
process that witnesses testify to what they saw, heard, felt or did, and the
trier of fact, using that evidentiary raw material, determines the facts.
Expert opinion evidence is different. Experts take information accumulated from
their own work and experience, combine it with evidence offered by other
witnesses, and present an opinion as to a factual inference that should be
drawn from that material. The trier of fact must then decide whether to accept
or reject the expert’s opinion as to the appropriate factual inference. Expert
evidence has the real potential to swallow whole the fact-finding function of
the court, especially in jury cases. Consequently, expert opinion evidence is
presumptively inadmissible. The party tendering the evidence must establish its
admissibility on the balance of probabilities: Paciocco and Stuesser, at pp.
184, 193; Hon. Jus. S. Casey Hill, David M. Tanovich and Louis P. Strezos,
McWilliams’ Canadian Criminal Evidence, 4th ed., looseleaf (Aurora, Ont.:
Canada Law Book, 2009), at para. 12:30.10.

…

[73]      Despite
justifiable misgivings, expert opinion evidence is, of necessity, a mainstay in
the litigation process. Put bluntly, many cases, including very serious
criminal cases, could not be tried without expert opinion evidence. The
judicial challenge is to properly control the admissibility of expert opinion
evidence, the manner in which it is presented to the jury and the use that the
jury makes of that evidence.

[12]        
Mohan sets out
the current approach to the admissibility of expert evidence. Mr. Justice Sopinka
outlines the following criteria for the admissibility of opinion evidence:

 (1)      the evidence must be relevant to some issue in
the case;

 (2)      the evidence must be necessary to assist the
trier of fact;

 (3)      the evidence must not contravene an exclusionary
rule; and

 (4)      the witness must be a properly qualified expert.

The closer the expert’s evidence approaches
an opinion on an ultimate issue, the more strictly the criterion will be
applied (Mohan at 24).

[13]        
Relevance, in the present context, is not
limited to whether the evidence is legally relevant in that it tends to
establish a fact in issue. According to Mohan at 21, relevance
includes a cost benefit analysis where otherwise logically relevant evidence
may be excluded if:

… its probative
value is overborne by its prejudicial effect, if it involves an inordinate
amount of time which is not commensurate with its value or if it is misleading
in the sense that its effect on the trier of fact, particularly a jury, is out
of proportion to its reliability. …

[14]        
The cost benefit analysis described in Mohan includes
examining the reliability of the expert’s evidence. I must be satisfied that
the underlying principles and methodology of the expert’s analysis are reliable
and applicable (R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at
para. 50). It is the reliability of the plaintiffs’ expert report that the
defendants challenge here.

[15]        
Assessing reliability includes determining
whether the science or technique the witness uses to reach a conclusion is “novel”.
Novel science will be subject to a stricter level of scrutiny than theories or
techniques that are more generally accepted. As Cullen J. says in Taylor v.
Liong, 2007 BCSC 231, 70 B.C.L.R. (4th) 284:

60.  In
determining relevance in the sense referred to in para. 18 of Mohan, the
"novelty" of the evidence under consideration is an issue for
determination. In para. 19 of Mohan the Court averted to this aspect of
relevance as follows:

 As
La Forest J. stated in R. v. Béland, [1987] 2 S.C.R. 398, at p. 434,
with respect to the evidence of the results of a polygraph tendered by the
accused, such evidence should not be admitted by reason of "human
fallibility in assessing the proper weight to be given to evidence cloaked
under the mystique of science". The application of this principle can be
seen in cases such as R. v. Melaragni (1992), 73 C.C.C. (3d) 348, in
which Moldaver J. applied a threshold test of reliability to what he described,
at p. 353, as "a new scientific technique or body of scientific
knowledge". Moldaver J. also mentioned two other factors, inter alia,
which should be considered in such circumstances (at p. 353):

 (1)        Is the evidence likely to assist the
jury in its fact-finding mission, or is it likely to confuse and confound the
jury?

 (2)        Is
the jury likely to be overwhelmed by the "mystic infallibility" of
the evidence, or will the jury be able to keep an open mind and objectively
assess the worth of the evidence?

The novelty of
a scientific theory or technique is not determinative of its admissibility.

[16]        
Instead, novelty is a measure of reliability
which must be balanced against its effect on the mind of the trier of fact. In Wolfin
v. Shaw (1998), 43 B.C.L.R. (3d) 190 (S.C.), Dillon J. discusses
whether a theory or technique is novel, as well as the effect of such a
finding, at para. 17:

‘Novel’ refers
to scientific evidence that has not been generally accepted as effective in
medicine or that deviates from accepted standards. This sounds very reminiscent
of the general acceptance test which was used in the United States before 1993
to determine admissibility (Frye v. United States (1923) 293 Fed. 1013)
but which was rejected by the U.S. Supreme Court in Daubert v. Merrell Dow
Pharmaceuticals, Inc., (1993) 113 S. Ct. 2786 in favour of a reliability
and relevance test. The general acceptance test has never been accepted in
Canada but has been used pre Mohan as one of the factors to consider in
the assessment of relevance and helpfulness in the determination of
admissibility (see R. v. Johnston (1992) 69 C.C.C. (3d) 395; Grant v.
Dube (1992) 73 B.C.L.R. (2d) 288). It is still used as an indicator of
reliability post Mohan (R. v. J.E.T., [1994] O.J. No. 3067
(Ontario Court of Justice (General Division) November 30, 1994); Petro-Canada
v. Canada-Newfoundland Offshore Petroleum Board, [1995] N.J. No. 258).
Consideration of whether the PET scan is ‘novel’ is undertaken here not to
determine admissibility but to decide whether a stricter scrutiny of the
evidence through a threshold test of reliability should apply, usually within a
voir dire. In this sense, the concept of ‘novel’ is used to distinguish
evidence that has gained certain acceptability from that which has not. The
object of the voir dire is to prevent the trial becoming a "medical or
scientific convention with an exchange of highly speculative points of
view" (R. v. J.E.T., supra. at para. 77).

When a party seeks to advance a novel
science or technique, the following criteria from Daubert (cited in the
extract above) respecting the American reliability and relevance test, are
helpful:

 1.       whether the theory or
technique can be and has been tested;

 2.       whether the theory or technique has been
subjected to peer review and publication;

 3.       the known or potential rate of error or the
existence of standards; and

 4.       whether the theory or technique used has been
generally accepted.

[17]        
In Abbey, Doherty J.A., at para. 110, cautions
against a strict application of the Daubert factors and emphasizes the
flexibility of the inquiry (para. 110). Mr. Justice Doherty also emphasizes
that a judge need not find an expert’s evidence to be without fault before
allowing it into evidence:

[142]    In
performing the "gatekeeper" function, a trial judge of necessity
engages in an evaluation that shares some of the features with the evaluation
ultimately performed by the jury if the evidence is admitted. The trial judge
is, however, charged only with the responsibility to decide whether the
evidence is sufficiently reliable to merit its consideration by the jury. The
integrity of the trial process requires that the trial judge not overstep this
function and encroach onto the jury’s territory. In assessing threshold
reliability, I think trial judges should be concerned with factors that are
fundamental to the reliability of the opinion offered and responsive to the
specific dangers posed by expert opinion evidence. Trial judges, in assessing
threshold reliability, should not be concerned with those factors which, while
relevant to the ultimate reliability of the evidence, are common with those
relevant to the evaluation of evidence provided by witnesses other than
experts. For example, I would not think that inconsistencies in an expert’s
testimony, save perhaps in extreme cases, would ever justify keeping the
expert’s opinion from the jury. Juries are perfectly able to consider the
impact of inconsistencies on the reliability of a witness’s testimony.

[18]        
In Taylor, Cullen J. discusses excluding
an expert’s testimony for lack of reliability but in the context of a civil trial
by judge alone. At para. 64, Cullen J. adopts the following statement from Chan
v. Erin Mills Town Centre Corp., [2005] O.J. No. 5027 (S.C.J.):

It is difficult
to find a civil case tried by judge alone, where novel scientific evidence was
excluded because it failed to meet a threshold test of reliability. The reason
may be that the metaphor of the judge as gatekeeper loses much of its symbolic
force when it is the judge who is the trier of fact. This is not to say that a
trial judge is excused from scrutinizing evidence as improperly admitted
evidence can surely have an impact on a trial, but the likelihood of a judge
being overwhelmed by the "mystic infallibility" of the evidence and
misusing the evidence to distort the fact-finding process, is far more remote.
The dangers that the principles are designed to avoid begin to fall away.

However, as Cullen J. notes, R. v.
J.-L.J. was also a judge-alone case and the Court did not state there that
different levels of reliability apply to different modes of trial.

[19]        
Taylor also
discusses applications to exclude on the grounds of reliability where judgment
is not possible without the impugned evidence:

178  An
important point to note is that in this case, the only means of gaining access
to an understanding of the ultimate issue – whether the plaintiff’s automobile
accident of May 22, 1998, caused the onset or exacerbation of her MS symptoms
diagnosed in the first week of September, 1998 – is through the impugned expert
medical evidence. No judgment on that issue is possible without the assistance
of expert opinion evidence. That fact distinguishes this case from Mohan,
Wolfin, R. v. J.-L.J., and the majority of the cases cited by
counsel for the defendants as examples of expert evidence being excluded on the
ground of unreliability. In those cases, the impugned expert evidence was
supplemental to the main evidence on the issue and was being tendered as a diagnostic
tool or as some measure of the reliability or credibility of other admissible
evidence accessible to the fact finder. In that context, the impugned expert
evidence was being tendered, if not to supplant, then at least to augment the
function of the fact finder. Accordingly, the concerns relative to the
admission of expert evidence: whether its value is worth what it costs, and
whether the fact finder is likely to be deterred from objectively assessing all
of the evidence by the "mystic infallibility" of the expert’s opinion
were particularly apposite in those cases.

179 On the other hand in a case where expert evidence is necessary
in order to even understand the issue, much less resolve it, its relative value
is high, and where both sides rely on expert evidence, the "mystic
infallibility" of their evidence falls away with the broadsides leveled by
the respective parties’ opposing experts at one another’s evidence.

[20]        
Taylor is a motor
vehicle injury case. After the accident, the plaintiff was diagnosed with
multiple sclerosis (MS). She contended that the accident materially contributed
to the onset of her illness, and led expert reports to that effect. The
defendant led expert reports disagreeing with that contention. Both parties
challenged the admissibility of each other’s expert reports on the basis of
reliability.

[21]        
Mr. Justice Cullen admitted the defendant’s
reports and all but one of the plaintiff’s reports. He refused to admit a
plaintiff’s report which was based on a theory of the link between MS and
trauma that had no level of certainty because the theory had never been subject
to peer review, or published in any form. Additionally, the theory was subject
to expert analysis from the defence that illustrated its inherent uncertainty.
The plaintiff’s expert did not defend against this analysis. Mr. Justice Cullen
found that the report seemed to be developed “in part almost ex improviso in
response to the defendant’s expert reports” and did not incorporate any
explanation linking the impugned theory with the cascade of events said to precipitate
an MS attack (para. 186).

[22]        
Conversely, Cullen J. admitted the other reports,
in spite of their limitations, because the theories they espoused remained
plausible. He stated, at para. 191:

If the theory
remains plausible, it would be difficult to rule it or the evidence directly
supporting it unworthy of consideration by a finder of fact. If the theory is
implausible, then it renders evidence said to be supportive of it without
coherence.

While the theory espoused in the
plaintiff’s admissible expert report only allowed for a small chance that
trauma can precipitate an exacerbation of MS, Cullen J. stated:

197  The evidence amassed in opposition to the plaintiff’s theory and her
evidence may attenuate her case. Dr. Poser’s credibility and his asserted
misreliance on studies may compromise it. The logic flowing from a theory
espousing a low risk of MS from the cause being asserted as compared to other
causes, and the high likelihood of coincidence of trauma and exacerbation, may
undermine the case. But, there remains a theoretical and evidentiary base for
its consideration by a trier of fact. The issues raised by the defendant’s
objections and evidence ultimately require consideration, understanding,
comparison, analysis, and conclusion concerning contradictory evidence and
competing opinions. That is the subject matter of ultimate, not threshold,
reliability. …

[23]        
To conclude, in assessing reliability when
exercising my gatekeeper role, I must determine whether the approach the
impugned expert takes is novel. If Dr. Stalnaker is relying on a novel
theory or technique, I should exercise a higher level of scrutiny when
examining reliability, in order to prevent the trial becoming “a medical or
scientific convention with an exchange of highly speculative points of view” (R.
v. J.E.T. at para. 77).

[24]        
In assessing reliability, I may find the Daubert
factors helpful, but need not apply them too strictly. The purpose of
applying the factors is to determine the degree of uncertainty present in the
impugned expert’s analysis. The question is whether “the degree of uncertainty
is unacceptable given the likely effect upon the trial process and the trier of
fact. The level of acceptable uncertainty may depend upon the purpose for which
the evidence is tendered and the use made of the evidence by other experts” (Wolfin
at para. 20). Both the mode of trial and the importance of the evidence to
making a final determination of the matter are factors to consider. If a theory
or technique is implausible it will not be admitted.

[25]        
I remain persuaded that biomechanics is a
recognized and accepted area of scientific and academic expertise. I am
satisfied that Dr. Stalnaker is qualified to give opinion evidence in the area
of biomechanics including in relation to safety standards. Opinion evidence is
necessary to assist me in drawing appropriate inferences of fact.

[26]        
The question that remains is whether Dr.
Stalnaker, in spite of his expertise, has produced opinions so inherently
unreliable that any probative value is outweighed by its prejudicial effect. As
will be seen, Dr. Stalnaker, based on his academic expertise and practical
experience, designed his own helmet impact testing parameters in an attempt to
replicate the forces involved in causing Darren’s brain injury. While his
testing technique is, in a sense, “novel”, it nonetheless rests on a scientific
base.

[27]        
The Bauer defendants contend that the oral
evidence of Dr. Stalnaker revealed fundamental flaws in his testing methodology
and the scientific foundation of his opinion evidence. In particular, they rely
on Dr. Stalnaker’s testimony that he tested a used, rather than new, Bauer
HH5000L helmet.

[28]        
Dr. Stalnaker described this helmet as the
“exemplar” helmet. According to him, he wanted to simulate the accident
circumstances as closely as possible. Darren was not wearing a new helmet at
the time of his accident. Dr. Stalnaker testified that it is a scientifically
accepted practice to test using a used helmet in the circumstances. It is apparent,
however, that Dr. Stalnaker did not refer to or explain his decision in this
regard in his written report.

[29]        
Dr. Stalnaker acknowledged during his oral
testimony that one of his staff purchased the “exemplar” helmet through the internet
and that he did not know its prior history. In addition to a CSA certification
sticker, the helmet has an American standard, or HECC, sticker expiring
09-2007. Dr. Stalnaker explained that the HECC certification is good for five
years so, in his view, some of the shell must have been manufactured in 2002.
One of the labels inside the helmet is consistent with that view in that it
shows a date in September 2002.

[30]        
According to Dr. Stalnaker, he inspected the
helmet and found no apparent hits or scratches. The inside label did not appear
worn out and he concluded that there was less visible damage than on Darren’s
helmet. He agreed, however, that the latter showed no visible damage in spite
of the high velocity hit with the boards.

[31]        
Dr. Stalnaker performed his tests on the “exemplar”
helmet in June 2009. At that time, the helmet was nearly seven years old and
its history of actual use is apparently not verifiable. On the evidence at
trial, Darren’s helmet was about four years old at the time of the accident and
had been in use for somewhat less than two years.

[32]        
In addition to testing the used “exemplar”
helmet, Dr. Stalnaker also tested another used, but modified, Bauer HH5000L
helmet. Similar markings apparent on the modified helmet indicate that it was
manufactured in 2004 and HECC certified in December of that year. Accordingly,
the modified helmet was about four and one-half years old at the time of
testing. Once again, there is apparently no verifiable history of use
available.

[33]        
Dr. Stalnaker modified the second HH5000L helmet
by removing the existing rear liner and replacing it with a one inch thick pad
of Rubatex 3953 Vinyl Nitrile (“Rubatex”). According to Dr. Stalnaker, Rubatex was
first available for use in helmets in 1997.

[34]        
The next helmet tested was a new Bauer HH5100L
helmet that had never been used. Dr. Stalnaker likened the padding in that
helmet to Rubatex rather than the EPP liner used in the accident helmet. Finally,
Dr. Stalnaker tested a new Bauer HH9500L helmet fabricated, according to him,
in 2008.

[35]        
Dr. Stalnaker conducted controlled drop tests of
the helmets at 2, 4 and 6 feet, and recorded the average Severity Index (SI)
scores and peak accelerations scores (expressed in units of g) at each drop
height. He next made a series of conversions to reach conclusions about the
risk of serious brain injury to the helmet wearer depending upon the measured
impact speeds.

[36]        
Dr. Stalnaker assumed that the rink boards would
have had some give to them and modified the drop surface by placing a piece of
wood 2 x 4 on top of the standard pad on his testing equipment. In his first
report, he stated that he did so for the following reason:

This would
provide the rigid surface of the wood, while giving it cushion into the pad to
simulate a hard hit with give.

The drop tests did not replicate CSA
certification testing but had significant similarities apart from the higher
drop height and modifications to the drop surface. The actual impact forces are
measured by accelerometers in both cases and then converted into measures of
risk.

[37]        
In general terms, Dr. Stalnaker found that the
modified helmet, followed by the HH5100L and the HH9500L, provided better
protection against the type of head injury that Darren suffered than did the
exemplar helmet. Assuming an impact speed of 6 meters per second (m/s) at the
time of impact, and replicated, according to Dr. Stalnaker, by the 6 foot
drop test height, he set out in the conclusion of his report the percentage
chance of receiving a brain injury in the category that Darren sustained with
respect to each of the exemplar and modified HH5000L as well as the HH5100L.

[38]        
Through effective cross-examination, counsel for
the defendants demonstrated inaccuracies in Dr. Stalnaker’s report including the
percentage calculations set out in the conclusion. They also challenged the
reliability of his assumptions respecting Darren’s speed of impact at the time
of his collision with the boards, although I observe that Dr. Stalnaker also
refers to the 6 foot drop height as replicating the head height above the ice
of many players wearing skates before falling.

[39]        
The challenges to Dr. Stalnaker’s assumptions
about the speed at the time of impact with the boards may affect the weight to
be assigned to his opinion but do not, in my view, render his opinion
inadmissible. Dr. Stalnaker did not know the speed at which Darren was skating
when he fell, received a hit, or both, and then impacted the boards. In his
opinion, however, the 1990 CSA standard utilizes too low a drop height for
certification testing to offset the risk of severe head injuries playing ice
hockey.

[40]        
Based on an assumption that an NHL player can
reach an average skating speed of 9.0 m/s (29.4 f/s) or that a 1.8 m (6 f) tall
player can fall and hit the ice at 6.0 m/s (19.6 f/s), Dr. Stalnaker concluded
that hockey players, on average, can be exposed to head impact speeds of 6.0
m/s (19.6 f/s) or higher, thus justifying the use of a higher drop height. His
own testing included a 1.8 m (6 f) drop height.

[41]        
The assumption about skating speed is also a
factor in assessing Dr. Stalnaker’s opinion respecting the forces
associated with Darren’s impact with the boards. Dr. Stalnaker assumed that
Darren was skating at a speed of 9.0 m/s (29.4 f/s) when he caught an edge,
received a check, or both, fell to the ice and slid backwards into the boards,
at which point Darren’s back and the rear of his helmeted head hit the boards
virtually simultaneously. He opined that the speed reduction associated with
the above sequence of events was about 33 percent, reducing Darren’s speed at
the point of impact to 6.0 m/s (19.6 f/s). The defendants challenge that speed
calculation as they are entitled to do.

[42]        
The evidence at the end of trial may or may not
support Dr. Stalnaker’s assumptions but that does not render his opinion
inadmissible. I am not persuaded, on the evidence presently before the court,
that the assumed speed of 6.0 m/s (19.6 f/s) is implausible. That speed
converts to 21.5 km/h or 13.4 m/h.

[43]        
Counsel for the Bauer defendants also contends
that the opinion of Dr. Stalnaker is inadmissible because it is incapable
of leading to the “ready-made inference” that all HH5000L helmets, like the one
Darren wore, had similar qualities, thereby showing a design defect. Leaving
aside questions as to the sufficiency and ultimate reliability of Dr.
Stalnaker’s evidence, I disagree. In performing the same tests on repeated
occasions, Dr. Stalnaker recorded significantly better results for the modified
HH5000L over the exemplar model. The performances of the modified HH5000L and
the new HH5100L were much closer.

[44]        
It is possible to conclude, as Dr. Stalnaker
opined, that the modified HH5000L even outperformed the new HH5100L, another
new helmet. The advertising for the fourth helmet, the HH9500L, claimed that
the foam used in the liner absorbs 20 percent more energy during impact than
EPP foam for the same density. According to Dr. Stalnaker, the accident helmet
was lined with EPP foam. The test results attached to Dr. Stalnaker’s report
indicate that the modified HH5000L also outperformed the HH9500L.

[45]        
Dr. Stalnaker’s decision to drop test used
rather than new helmets does not, in my view, render his opinion valueless. Nor
does his modification of the drop surface. His approach does not change the
underlying science aimed at measuring the force of impact associated with the
different speeds at the varying drop heights. That force is converted into an SI
score, then correlated to the chance of sustaining a brain injury of the type
that Darren has. The uncertainties associated with Dr. Stalnaker’s methodology
are not necessarily unacceptable here and can be fully addressed as necessary
in determining ultimate reliability.

[46]        
In addition to associating itself with the Bauer
submissions addressed above, the CSA goes further. It says that Dr. Stalnaker
demonstrated during his testimony that he was not impartial and failed to
recognize that his duty is to assist the court rather than to act as an
advocate for the plaintiffs. The CSA claims that Dr. Stalnaker:

 1.       Deliberately misrepresented the work of a leading
expert in his rebuttal report;

 2.       Made false statements about subdural hematomas
associated with rotational forces always occurring well after cerebral
concussion with loss of consciousness;

 3.       Misled the reader in his report about
extrapolating his findings beyond the maximum six foot drop test;

 4.       Lied about why he tested the helmets at two and
four feet before six feet;

 5.       Failed to voluntarily disclose that he made
serious and fundamental errors in his analysis;

 6.       Maintained that exhibit 30, an apparently new
helmet, was used;

 7.       Conducted a “grossly biased fact finding mission”
into the circumstances of the accident and failed to mention any evidence
inconsistent with his translational force theory;

 8.       Varied his recommended drop height from that
which he gave in another hockey helmet case;

 9.       Made numerous “typographical” errors in his
reports;

 10.     Made patently false statements in his risk
analysis;

 11.     Provided a risk analysis that is “inconsistent
with the real world”; and

 12.     Dr. Stalnaker has been found unreliable in other
proceedings.

[47]        
I do not intend to address the additional CSA
submissions in detail. It is obvious that the issues listed immediately above
typically go to weight rather than admissibility.

[48]        
I do not discount the possibility that an expert
may demonstrate partiality or even untruthfulness but the time to consider
those questions is at the end of the trial in the context of all of the
evidence. Mr. Justice Vickers refused to exclude expert evidence where similar
issues were raised respecting partiality and improper advocacy in Tsilhqotin
Nation v. Canada (Attorney General), 2005 BCSC 617. I would err, in my
view, if I determined the issues that the CSA raises at this point.

[49]        
So long as the evidence is probative, and, in my
view it is, there is little danger, in a trial without a jury, of a judge
making improper use of the evidence to the prejudice to the defendants.
Accordingly, my residual discretion to exclude marginally probative evidence to
avoid prejudicial effect does not arise in the present circumstances.

[50]        
I confirm that Dr. Stalnaker’s reports and oral
evidence are admissible.

                “M.D.
Macaulay, J.”              

The Honourable Mr. Justice Macaulay