IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110729

Docket: 08-1607

Registry:
Victoria

Between:

Vincent
Bialkowski

Plaintiff

And:

Joan
Banfield

Defendant

Before:
The Honourable Mr. Justice Bracken

Reasons for Judgment

(Ruling on a Voir Dire)

[1]            
On June 13, 2011, I made a ruling on a voir dire that a portion
of the expert evidence the plaintiff wished to introduce in a personal injury
case was inadmissible.  Reasons for my decision were to follow.  These are my
reasons for the ruling.

[2]            
The evidence the plaintiff wished to introduce is opinion evidence
derived from quantitative electroencephalograph analysis (“QEEG”).  The
plaintiff sought to introduce the evidence through Dr. A. Malcolm, a
neuropsychologist.  There was no question about Dr. Malcolm’s qualifications as
a neuropsychologist but his expertise to conduct testing and analysis using
QEEG was challenged.  The defendant also challenged the reliability of QEEG
analysis generally.  Several experts were called on the voir dire.

[3]            
Electroencephalography (“EEG”) is a means of
recording the electrical activity of the brain.  Typically, electrical signals
are received through 19 electrodes placed on certain areas of the scalp by
attaching the electrodes to a cap that fits snugly over the patient’s head. 
The electrical activity is then recorded either on paper, or digitally on a
computer.  The clinician can then visually examine the recorded data to analyze
the patterns of activity.

[4]            
QEEG is a relatively new neuroimaging technique.  It uses
computer assisted analysis of EEG tests.  The raw EEG data is digitized and
analyzed by means of a mathematical algorithm.  It is said that the computer
analysis is capable of extracting more information from the raw EEG data and
enables the clinician to observe more subtle anomalies than can be seen with
the eye on standard visual analysis.  Using another program the digitized data
is then compared to a normative database to determine if the data are
consistent with what is normal for a comparable group of individuals.

[5]            
Analysis of electrical brain activity in humans
has been in use for many years and has been used by scientists and clinicians
to observe brain activity in a meaningful way.  The development of inexpensive
portable computers has made much progress possible in the past 10 or 15 years.

[6]            
QEEG analysis is said to be able to supplement
subjective visual examination of paper EEG recordings with a rapid and accurate
digital analysis that can be displayed as an image and can be used to detect
subtle abnormalities in EEG signals.

[7]            
Critical to the analysis is the mathematical algorithm
used to convert the EEG data.  Information obtained is then converted to an
imaging program known as a “low range brain electromagnetic tomography” or
LORETA.  That method allows the data to be displayed in a three-dimensional way
so that any anomalies can be localized to particular areas of brain function.

[8]            
The defendant objects to the admission of evidence of
QEEG analysis of the plaintiff on the grounds that Dr. Malcolm is not a
qualified expert, the results of QEEG testing are unreliable and prone to many
false positives for brain abnormalities.  The defendant says QEEG has been
rejected by several courts in Canada and the United States and says it has
never been accepted in Canadian courts as a diagnostic tool for traumatic brain
injury.  Plaintiff’s counsel argues QEEG is a useful and reliable tool to
assist in the diagnosis of traumatic brain injuries.  She submits it is simply
one of several ways a trained clinician is able to analyze a patient’s brain
activity for the possibility of a traumatic brain injury.

[9]            
The plaintiff called Dr. Malcolm as its main witness on
the voir dire. He testified that he conducted the QEEG testing of the
plaintiff as part of his neuropsychological assessment.  He conducted
neuropsychological testing in 2008 and again in 2010.  He reviewed a number of
medical reports from various specialists, including a neurologist, two
psychiatrists, a sports medicine specialist and the plaintiff’s family doctor. 
He also reviewed an EEG report and a Magnetic Resonance Imaging Report (“MRI”)
related to the plaintiff.

[10]        
He conducted a QEEG analysis and created imaging maps
using LORETA.  In his conclusions at p. 17 of his December 10, 2010 report he
summarized the background of opinion up to that time in this way:

As stated above, some specialists are of the opinion that Mr.
Bialkowski’s symptoms are completely attributable to his
psychological/psychiatric status, and others are of the opinion that he
suffered from a closed head injury.  Further, following the second
neuropsychological assessment the following statement was made:

 Based on the clinical interviews, test
results and documents reviewed, therefore, it is difficult to state with
confidence that Mr. Bialkowski is still suffering from a Cognitive Disorder not
Otherwise Specified (DSM-IV-TR 294.9).  In 2008 he demonstrated significant
psychological turmoil and symptoms consistent with a brain injury.  At the
present time, the severity of the Cognitive Disorder has decreased, but he is
more psychologically/psychiatrically disabled, to the degree that it is
virtually impossible, therefore, to proportion the symptoms to either factor.

This assessment was, therefore, conducted in order to
differentiate between symptoms that may be attributed either to a mild brain
injury or psychological/psychiatric difficulties.  In this regard, Thatcher
R.W., Walker R.A., Gerson I., & Geisler, F.H., (EEG Discriminate Analysis
of Mild Head Trauma, Electrophysiology and Clinical Neurophysiology, 1989, 73:
94-106) – Attachment 7, conducted spectral analyses on 608 mild head
trauma patients and performed three cross validation studies.  A discriminative
function was developed.  In Mr. Bialkowski’s case, a TBI discriminate score of
-0.53 placed his probability of membership in the traumatic brain injury
population at 75%.

Thus, this assessment provides a
75% probability that Mr. Bialkowski has suffered a brain injury.  …  It can
be stated, therefore, with greater confidence than before, specifically at
confidence level of 75%, that Mr. Bialkowski’s symptoms may be attributed to a
mild traumatic brain injury and that the diagnosis of Cognitive Disorder Not
Otherwise Specified (DSM-IV-TR- 294.9) is primary.

Under cross-examination, Dr. Malcolm retreated significantly
from his stated opinion that the assessment provided a 75% probability the
plaintiff had suffered a brain injury.

[11]        
The plaintiff also called Dr. Michael Krieger.  Dr. Krieger is a neurologist
licensed in British Columbia to evaluate individuals with suspected
neurological injury.  Dr. Krieger’s curriculum vitae states that he is Board
certified in EEG by the American Board of EEG and Neurophysiology.  He has a
Specialist Certificate showing certification in the field of Quantitative
Electroencephalography.  He is familiar with QEEG and has used it as a
diagnostic tool in his clinical practice.

[12]        
Dr. Krieger did not conduct QEEG tests on the plaintiff but was provided
with the test results of Dr. Malcolm. At p. 10 of Dr. Krieger’s report dated
January 15, 2011 he said:

Dr. Malcolm then reported on findings of the quantitative EEG
analysis performed in his office.  He found increased power of the low
frequencies in the posterior part of the brain (occipital region).  This is
seen on both the linked ears and the laplacian montage.  He also found
deviations of coherence in the slow frequency range in the posterior part of
the brain.

The Loretta (sic) analysis again showed signs of excessive
power in the slow frequency ranges posteriorly as well as possible low power in
the right and left-frontal regions.

Additionally, the discriminate
analysis was performed and showed a pattern which indicated a high probability
that the patient showed the abnormalities seen in the group of people with
Traumatic Brain Injury.  In the summary, Dr. Malcolm indicated that the
patient did suffer some psychological difficulties which pre dated the
accident, however, since then he has developed neuro cognitive deficits as well
as abnormalities on the quantitative EEG analysis.

[13]        
Dr. Krieger went on to state his opinion that the plaintiff suffered a
mild traumatic brain injury in the motor vehicle accident and that he also had
developed serious psychological problems as a result of the accident.  At p. 12
of his report he said the LORETA analysis indicated the abnormalities revealed
by QEEG to be in the occipital area in the region of the brain that analyzes
visual input.

Is Dr. Malcolm a Qualified Expert?

[14]        
The defendant’s first challenge to the QEEG analysis in this case is
that Dr. Malcolm, who conducted the testing, is not a qualified expert. 
The defendant submitted a summary entitled “Minimal Qualifications for an
Individual to be Considered as a QEEG Expert for Purposes of Admission of QEEG
in a Court of Law”.  This document was prepared by Dr. R.W. Thatcher who
developed the QEEG software used in testing the plaintiff.  The standards do
not have any apparent legal sanction or authority but are standards created by
the developer of the software as the minimum standards required to offer expert
opinion evidence of QEEG.

[15]        
The first requirement is that the individual offering expert evidence
hold a Ph.D. in one of several fields, including neuropsychology.  Dr. Malcolm
meets that requirement.  The second requirement is a minimum of three years of
experience in administering and interpreting QEEG analyses with patients.  Dr.
Malcolm does not meet that criterion.

[16]        
The third criterion is that the clinician be certified in scientific
specialty of QEEG by one or more relevant certification body.  While Dr.
Malcolm has taken training in QEEG analysis, at the time he conducted the test
of the plaintiff he did not have any QEEG certification.  At the time of his
evidence on the voir dire he still did not have any certification,
although he had completed his training and expected to receive his
certification as a QEEG analyst soon after he gave testimony.

[17]        
There are a series of other qualifications in the document.  One of them
is stated as “[the] ability to provide the number of normal control subjects
used to compare the EEG of a patient for a particular age”.  In this area, Dr.
Malcolm had considerable difficulty in explaining the makeup of the control
group used by Dr. R.W. Thatcher, the developer of the QEEG software Dr.
Malcolm utilized in testing the plaintiff.  In his report he stated:

Briefly, QEEGs of 1015 subjects
ranging in age from two months to 82 years were taken, and 758 of them met the
criteria of normalcy.

[18]        
Under cross-examination, Dr. Malcolm stated the numbers in a different
way and at one point suggested there were actually two control groups.  In my
view, Dr. Thatcher did not meet the criterion of being able to provide the
number of control subjects of comparable age used for comparison of the QEEG
data of the plaintiff.

[19]        
The defendant also objects to Dr. Malcolm’s qualifications on the basis
of the statutory and regulatory scheme related to health professionals in
British Columbia.  The defendant submits Dr. Malcolm, a neuropsychologist, is
not capable of expressing any opinion on the collection or analysis of EEG data
as the human EEG is a measurement of the actual physical activity of the brain
and is not a measurement of the performance of the mind or a measurement of
aspects of the plaintiff’s personality.

[20]        
The definition of “medicine” under the Health Professions Act,
Medical Practitioners Regulation, B.C. Reg. 416/2008.  Section 1 of that
Regulations states in part:

(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.

[21]        
In his submission, counsel for the defendant compared the definition of
medicine to the meaning of “practice of psychology” under the Health
Professions Act Psychologists Regulation, B.C. Reg. 289/2008, which states:

(a)  the provision, to individuals, groups, organizations or
the public, of any service involving the application of principles, methods and
procedures of understanding, predicting and influencing behaviour, including
the principles of learning, perception, motivation, thinking, emotion and
interpersonal relationships,

(b)  the application of methods and procedures of
interviewing, counselling, psychotherapy, behaviour therapy, behaviour
modification, hypnosis or research, or

(c)  the construction,
administration and interpretation of tests of mental abilities, aptitudes,
interests, opinions, attitudes, emotions, personality characteristics, motivations
and psycho physiological characteristics, and the assessment or diagnosis of
behavioural, emotional and mental disorder.

[22]        
The defendant argues the statutory framework of the Health
Professionals Act, R.S.B.C. 1996, c. 183, does not authorize a psychologist
or neuropsychologist to conduct testing of the physical activity of the brain
using EEG or QEEG as that is an activity restricted to medical practitioners.

[23]        
The defendant relies on Meghji v. Lee, 2009 BCSC 1542.  In that
case the court considered whether a neuropsychologist, by coincidence the same
Dr. Malcolm, could give an opinion to diagnose a brain injury or to opine
on the manner in which the injury occurred.  The court followed Knight v.
Fletcher, [1994] B.C.J. No. 279 and concluded at para. 32:

[32]  In my view, the distinction
drawn by Clancy J. in Knight remains appropriate, and that is, Dr.
Malcolm is qualified to give his opinion on the cognitive and behavioural
sequelae of brain injuries and to indicate the relative likelihood of any cognitive
and behavioural abnormalities being the consequence of a traumatic brain
injury, but to paraphrase Clancy J., it does not permit him, that is, Dr.
Malcolm to diagnose physical injury and the manner in which it was incurred.

[24]        
Dr. Malcolm was not permitted in Meghji to give his opinion on
whether the plaintiff had an injury to the tissues of her brain, or as to the
cause of that injury.  The passages quoted above from Dr. Malcolm’s report of
December 10, 2010 in my opinion, violate the rule in Knight and Meghji. 
In addition, by purporting to conduct EEG analysis, even through the use of a
computer program such as QEEG, intrudes on the areas outlined in s. 1(a) of the
Medical Practitioners Regulation and engages in the practice of medicine
rather than psychology or neuropsychology.  On that basis alone Dr. Malcolm is
not permitted to give expert opinion medicine on QEEG testing or analysis.

[25]        
The second branch of the defendant’s submission is that Dr. Malcolm
lacks the level of knowledge and skill required to conduct QEEG analysis
because he is not a trained electroencephalographer.  During cross-examination,
Dr. Malcolm agreed that a journal article he was referred to was
authoritative.  The article is taken from the Journal of Neuropsychiatry and
Clinical Neurosciences, 18: 460-500, November 2006, (Coburn, Lauterbach,
Boutros, Black, Arciniegas and Coffey), at p. 8 the authors said:

Closely related is the criticism
that computers cannot diagnose disorders.  To overcome these limitations the
electroencephalographer’s trained eye is necessary.  But QEEG does not remove
the expert physician from the loop.  For at least the past decade there has
been universal agreement that the indispensable initial step in QEEG analysis
is the “gold standard” of a clinical (visual) reading of the raw EEG by a
trained electroencephalographer.  QEEG is a post-hoc supplementary and
complementary technique of data analysis that is specifically not intended to
function as a stand-alone diagnostic instrument.

[26]        
In another article, Assessment of Digital EEG, Quantitative EEG, and
EEG Brain Mapping: Report of the American Academy of Neurology and the American
Clinical Neurophysiology Society, M. Nuwer; a panel of experts appointed
jointly by the American Clinical Neurophysiology Society and the American
Academy of Neurology, reviewed the literature on QEEG analysis.  Again, Dr.
Malcolm accepted the article as authoritative.  At p. 9 of the report it is
stated:

EEG brain mapping and other QEEG
are often very misleading, particularly in the hands of practitioners with
limited skills, knowledge, abilities, training, and experience in EEG
interpretation.  … EEG brain mapping and other advanced QEEG techniques
should be used only by physicians highly skilled in clinical EEG, and only as
an adjunct to and in conjunction with traditional EEG interpretation.  These
tests may be clinically useful only for patients who have been well selected on
the basis of their clinical presentation.

[27]        
Dr. Malcolm agreed QEEG is not intended to be a stand-alone diagnostic
tool of traumatic brain injury.  He supplemented the QEEG analysis he did with
neuropsychological tests before stating his opinion the plaintiff had a 75%
probability of a traumatic brain injury.  But the fact remains that Dr. Malcolm
is not a neurologist or a trained electroencephalographer.  He may well be
qualified to use QEEG for some limited clinical purpose but because he is not a
trained and qualified electroencephalographer, I find he is not qualified to
conduct testing or analysis of QEEG data or to use such testing or analysis to
give opinion evidence related to an alleged brain injury.

[28]        
There is a third branch to the defendant’s argument on the issue of
whether Dr. Malcolm is an expert qualified to give opinion evidence on QEEG
analysis.  In that branch of the argument the defendant alleges Dr. Malcolm
made errors in his analysis in this case and those errors establish he is not
competent to give an opinion on QEEG.  As I have already concluded Dr. Malcolm
is not qualified to give expert evidence on QEEG testing and analysis I will
not deal with that issue.  However, I will touch on the suggestion Dr. Malcolm
was not competent as part of the discussion on the reliability and
acceptability of QEEG evidence in cases of alleged traumatic brain injury.  I
turn now to that issue.

Reliability of QEEG Analysis

[29]        
One of the strongest criticisms of QEEG is that it is prone to showing
abnormalities where none exist.  In his report, Nuwer stated:

In some trial law and insurance
circulars and advertisements, EEG brain-mapping and other QEEG techniques have
been cited as reliable tests.  A major disadvantage of these tests in legal
disputes is the occurrence of false-positive results, i.e. “abnormal” results
in normal subjects and incorrect diagnoses in patients.  Results also can be
dramatically altered during the subjective process of selecting portions of an
EEG for quantitative analysis.  There are no objective safeguards to prevent
statistical or unintended errors.  Probative value and even the test-retest
reproducibility can be poor.  There is great potential for abuse.  [p. 9]

[30]        
The defendant called Dr. Peter Wong as a witness qualified to give
expert opinion evidence in the area of neurology and electroencephalography. 
Dr. Wong is licensed to practice neurology in British Columbia and his
pre-medical education was in engineering physics.  He has been practicing in
British Columbia in the area of neurophysiology and electroencephalography for
many years and is head of the department of diagnostic neurophysiology at B.C.
Children’s Hospital in Vancouver.  He has a special interest in computerized
EEG analysis and topographic EEG and brain-mapping.  He has been involved QEEG
research since 1981 and has written numerous scientific and medical articles in
peer-reviewed journals on the subject.  He was the founding editor and
editor-in-chief of Brain Topography, an international journal of QEEG
and brain-mapping.  In that capacity he has personally reviewed and assessed
numerous papers related to QEEG.

[31]        
Dr. Wong provided a written report dated March 22, 2011 and he gave
evidence on the voir dire in this case.  He noted that Dr. Malcolm did
not have any clinical EEG training or formal EEG qualifications.  He disagreed
with Dr. Malcolm’s statement that QEEG did not require the level of
specialized training required for standard EEG interpretation.

[32]        
He described the method used to record the plaintiff’s EEG and the use
of LORETA to localize any anomalies to a particular area of the brain.  Dr.
Malcolm recognized the need to analyze only “clean data” free from what is
referred to as “artefact”.  Dr. Malcolm said he assessed 2 minutes and 48
seconds of artefact-free data.  Dr. Wong did not agree the raw EEG data in that
period was free of artefact.  It was this factor counsel for the defendant
emphasized with respect to the third branch of his argument referred to above.

[33]        
Dr. Wong divided his assessment of Dr. Malcolm’s testing into three
categories: technical, statistical and diagnostic interpretation.  In the
technical category, Dr. Wong said that a basic requirement of EEG testing is
that it “… must be representative of the brain’s wide range of normal
activities.”  He said Dr. Malcolm’s method of using the eyes-closed EEG was
inadequate for the stated purpose of the report and was on that ground alone,
sufficient to invalidate the results and conclusions.  (p. 7)

[34]        
Dr. Wong said the LORETA computational procedure is:

… based on a very simplistic round brain model (not at all
based in reality, as the brain is irregularly shaped and not round), and which
is believed by [Dr. Malcolm] to be able to accurately localize any and all EEG
activity to within an error of 7mm (a very, very refined accuracy indeed).  No
caveat was made about its possible shortcomings  or whether any precaution is
required in its interpretation of brain injury.  Furthermore, [more than] 795
publications were cited as proof of its validity.

…

The procedure of simply applying LORETA analysis on the 2’
48” of eyes closed EEG recorded during an unknown mental state, would not be
expected to yield any information of clinical value.  In fact, all it would
likely do is to highlight EEG differences during different mental states.

…

Conclusions of TBI [traumatic
brain injury] based on LORETA results are not valid for diagnosis of TBI or any
other neurological condition.

[35]        
Dr. Wong was also critical of the statistical aspects of the QEEG
analysis done by Dr. Malcolm.  He noted that the makeup of the group used as
the normative or comparative group was made up of 758 subjects.  Dr. Wong
examined the age distribution of the group and found there were likely 58
individuals in each age group.  He assumed they would be evenly divided between
males and females and between right and left handed individuals.  Both gender
and left or right handedness is considered to be statistically significant. 
Dr. Wong then concluded there were approximately 14 similarly aged healthy
males in the comparative group.  He concluded at p. 8 of his report that:

The normative group of 758 does
not adequately account for the variety of common patterns and changes
encountered in the normal population.  This does not allow any diagnostic
statement of “normality” or “abnormality”, and is grounds for invalidating the
entire statistical comparison procedure.

[36]        
Dr. Wong was also highly critical of the computation procedures used in
Dr. Malcolm’s analysis.  He noted that the number of individual
statistical tests of brain activity conducted on the same dataset or collection
of data was in excess of 79,000 and was not a sound statistical analysis and
was prone to error.  He was of the opinion the method followed by Dr. Malcolm
invalidated the statistical results obtained.  In addition, he believed there
were likely to be 3,978 abnormalities by chance alone and not as a result of
any injury to the brain.

[37]        
He also said that Dr. Malcolm’s conclusion that the plaintiff “had a 75%
probability” of a traumatic brain injury was “fundamentally flawed”.  He said:

… it assumes that TBI is a single disease entity, with
consistent and identical abnormality of the brain (in lesion location, type,
severity etc.).  In reality, TBI is an extremely heterogeneous entity, with
every conceivable combination of injury to different parts of the brain.  To
assume that TBI is a single homogeneous entity is not just simplistic, it is
beyond irrational, and unacceptable in the realm of clinical neurology.

The Report claims that
computerised EEG is superior to standard EEG, but for what?  In clinical
neurology and for the diagnosis of TBI, QEEG is simply not used.  The claim
that abnormalities of the amplitudes of various EEG frequency components can be
directly linked to a specific brain region or abnormality contradicts our basic
understanding of how EEG is generated and modulated by normal and abnormal
brain activities.  It is simply a naive line of thinking that has no relevance
in clinical neurology.  In the entire Report, there is little (if any)
description or concern for variations in EEG which may be due to normal brain
activities.  And yet in clinical EEG training, this is the first thing to be
taught.  The Report’s statement “that EEG data cannot be exaggerated or
affected by lack of effort” is thus at best inappropriate, and at worse
incorrect under this context.

[38]        
Dr. Wong noted, the human EEG is highly variable and
changes with different mental states.  The brain generates an extremely complex
set of signals.  In EEG testing each of 19 scalp electrodes placed measures the
electrical activity of the brain detects millions of electronic signals
generated by brain activity as simple as opening or closing of the eyes or by
mental calculation or thinking of other things.  The human EEG changes with
different mental states and any activity of the brain during testing can cause
variations in the EEG.   Dr. Wong said:

…amplitude
changes of EEG components (whether voltage or power) are non-specific, and
cannot by themselves lead to any conclusion of brain normality or abnormality. 
[p. 10]

[39]        
Dr. Wong questioned the validity of the report and its conclusions and
believed his criticisms of the report invalidated the results.

[40]        
The plaintiff submits that QEEG analysis is capable of
revealing anomalies in a particular area of the brain that may have been
overlooked by the electroencephalographer during visual reading.  Proponents of
QEEG argue it is able to assist in the diagnosis of brain injury or psychiatric
illness.

[41]        
The plaintiff submits that QEEG testing is not new or
novel science has it has been in use for several years.  It is also emphasized
by the plaintiff that QEEG is one of several tools available to a specialist
and it is not held out to be a diagnostic tool for traumatic brain injury.  The
plaintiff argues QEEG is a useful tool in the hands of a qualified expert to
provide relevant clinical information to be used in forming an opinion.  The
plaintiff does not offer QEEG analysis for the purpose of providing a
differential diagnosis of a traumatic brain injury.

[42]        
The plaintiff submits Dr. Malcolm followed the protocol
established for the computer software he used and utilized the results of QEEG
analysis alongside his test results of neuropsychological testing in an effort
to rule out a traumatic brain injury.  While that may well be what Dr. Malcolm
started out to do, his report goes much farther and, in my view,
inappropriately so.

[43]        
The plaintiff argues QEEG is not new science, and to
some degree she is correct.  It has been in existence mathematically and aided
by computer software for some time now.  But time does not make it reliable and
that is the problem pointed out by Dr. Wong and the authors of the journal
articles already referred to.  For example, Nuwer says at p. 9:

On the basis of clinical and
scientific evidence, opinions of most experts, and the technical and
methodologic shortcomings, QEEG is not recommended for use in civil or criminal
judicial proceedings.

[44]        
In the article authored by Coburn, et al, above, after discussing the
views of the proponents and opponents of QEEG, the authors state at p. 8:

It is possible that clinical turf
issues may play a role in this dispute.  However, it has yet to be shown that
any QEEG system available to the working clinical psychiatrist meets the
methodological standards of diagnostic tests, (spectrum composition, analysis
of pertinent subgroups, avoidance of workup bias, avoidance of review bias,
precision of results for test accuracy, presentation of indeterminate test
results, test reproducibility, enumerated by Reid et al.  (Reid, Lachs,
Feinstein, Use of Methodological Standards in Diagnostic Test Research:
Getting Better But Still Not Good, Journal of the American Medical Association,
1995; 274: p. 645)

[45]        
The plaintiff referred to several scientific journal articles which
discuss the benefits of QEEG analysis.  Based on those articles it is clear
there is acceptance that QEEG analysis has some useful clinical purpose and
that it is used in some areas of research and diagnoses.  One of the articles, Use
of Brain Electrical Activity to Quantify Traumatic Brain Injury in the
Emergency Department, Naunheim, Treaster, English Casmner and Chabot, Brain
Injury, 2010; 24(11): 1324-1329, suggested QEEG  was an under-utilized tool in
hospital emergency departments and found EEG testing supported by QEEG analysis
might well enhance the clinical utility of EEG in emergency departments.  In
another article, Efficacy of Traumatic Brain Injury Rehabilitation:
Interventions of QEEG-Guided Biofeedback, Computers, Strategies and
Medications, Thornton and Carmody, Journal of Applied Psychophysiol
Biofeedback, (2008) 33:101-124, the authors reviewed several studies and
concluded QEEG may be useful as a supplemental physical diagnostic tool for
traumatic brain injury.  Other articles suggest various potential uses of QEEG
in clinical diagnoses of certain neurologic conditions.

[46]        
Counsel for the plaintiff also referred to several American cases where
QEEG has been discussed.  In State of Florida v. Grady Nelson, (2010) Cause No. F05-00846, Circuit
Court of the 11th Judicial Circuit, in and for Miami-Dade County, Florida, QEEG
analysis was accepted in the death penalty phase of a criminal trial.  The
court rejected the argument QEEG was new or novel science and the court was of
the view that the jury could understand and decide between conflicting expert
opinions.

[47]        
There are a few cases in the United States
where QEEG has been accepted, while other courts have rejected the evidence. 
(See:  Sellers v. Ronald Ward, Warden of the Oklahoma State Penitentiary
(1998), 135 F 3d 1333;  Valdez v. State of Oklahoma (2002);46 P. 3d 703;
Hardt v. Astrue, Commissioner of Social Security, 2007 U.S. Dist LEXIS
97623,  and United States of America v. Naeem J. Williams, 2009 U.S.
Dist LEXIS 13472.) 

[48]        
In this province, QEEG evidence was considered and rejected in Italy
v. Seifert, 2003 BCSC 501.  Although at para. 90 of that decision Romilly J
stated:

Consensus among scientists on a particular issue is not
required to admit expert evidence.  In fact the presence of a significant
percentage of error in test results may not render inadmissible expert
evidence.  In R. v. T.(J.E.), supra, Hill J. stated at paras. 75-6:

 … there
is a continuum of reliability in matters of science from near certainty in
physical sciences to the far end of the spectrum inhabited by junk science and
opinion akin to sorcery or magic.  Whether the technique could be demonstrably
tested, the existence of peer review for the theory or technique, the existence
of publication, the testing or validation employing control and error
measurement, and some recognition or acceptance in the relevant scientific
field all contribute to an assessment of the reliability of the opinion and
hence its capacity to outweigh the prejudicial impact of imposing on the jury
highly suspect opinion evidence masquerading as science: Daubert et al v.
Merrell Dow Pharmaceuticals Inc., supra, at 2795-2797 per Blackmun,J.;
Gold, Alan, Expert Evidence – Admissibility (1994),37 C.L.Q. 16 at
21-30.

 Consensus among scientists on
an issue is not required to admit opinion evidence. It has been held that even
the finding of significant percentage of error in test results may not by
itself, render inadmissible expert evidence relating thereto – “error is
inherent in human affairs, scientific or unscientific…”: The Queen v.
Beland and Phillips (1987), 36 C.C.C.(3d) 481 (S.C.C.) at 494, 495 per
McIntyre J.

[49]        
I agree with counsel for the plaintiff that QEEG analysis is not new
science.  It has been in use for many years now and has been peer reviewed in
many articles referred to by the plaintiff’s counsel in her submissions.  There
is no doubt it has been the subject of much peer review in applications in
several areas of neurology, psychiatry and neuropsychology.

[50]        
The difficulty is the conclusions in the reviews are not consistent and
many reject the use of QEEG for any clinical purpose while others restrict the
analysis to one of many methods used in clinical practice.

[51]        
Based on the evidence on the voir dire in this case, it is my
opinion QEEG analysis is novel science deserving of special scrutiny: R v.
J.L.J., 2000 SCC 51.  The evidence of Dr. Wong was not contradicted by any
other evidence and the articles which were acknowledged by Dr. Malcolm to be
authoritative journals substantially agree with Dr. Wong.

[52]        
In J.L.J., the court referred to the decision of the United
States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993).  The court listed several factors that it considered
useful for evaluating the soundness of novel science.  The factors were:  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 of the existence of standards; and 4) whether the
theory or technique used has been generally accepted.

[53]        
It can be said QEEG has been tested, although the results are not
consistent or generally accepted.  QEEG has been subjected to considerable peer
review and publication, but there is significant conflict respecting the
potential rate of error or the existence of standards of testing methodology.

[54]        
Serious conflict arises in the last category of whether QEEG has been
generally accepted.  As can be seen by the journal articles referred to above,
there is much conflict on the appropriateness of QEEG analysis in the clinical
practice of neurology.  Some accept it as a generally useful tool, others for a
limited or specific purpose such as epilepsy.  However, many scientists and
clinicians such as Dr. Wong, see QEEG as prone to significant error,
unhelpful and potentially misleading, particularly so in the diagnosis of
traumatic brain injury.

[55]        
Another serious problem with QEEG analysis is that it is potentially
very powerful evidence and in this case, the opinion of Dr. Malcolm as
originally stated in his report, is very close to an opinion on the ultimate
issue of whether the plaintiff had a traumatic brain injury.  As Sopinka J.
stated in R v. Mohan, [1994] 2 S.C.R. 9 at para.25; “[t]he closer the
evidence approaches an opinion on an ultimate issue, the stricter the
application of this principle.”

[56]        
In, Mohan at para. 17. the court set out the four well-known
criteria for testing the admissibility of expert evidence:

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; and

(d)  A properly qualified expert.

Conclusion

[57]        
In this case, I find that Dr. Malcolm was not a properly qualified
expert through which expert opinion evidence using QEEG analysis could be
admitted.  Dr. Krieger may have been such an expert but he did not conduct
the testing or analysis and simply referred to Dr. Malcolm’s opinion is his
report and in his evidence on the voir dire.

[58]        
While there may be cases where QEEG evidence will be accepted as part of
expert opinion in Canadian Courts it should only be through a neurologist who
is trained and qualified in EEG testing and analysis.  In my view, only a
trained electroencephalographer who has the skill, knowledge and training to
recognize the potential for error is qualified to give opinion evidence of QEEG
analysis.

[59]        
On the evidence presented in this case, I find the QEEG evidence to be
novel science and not sufficiently reliable for admission into evidence on the
principles established in J.L.J. and Mohan.  I conclude it will
not assist the trier of fact.  As science progresses this may change and the
evidence may meet the test of reliability so as to be admissible at some point
in the future.  As was noted in Seifert, the fact that expert evidence
conflicts does not, by itself, make it inadmissible.  Coburn, et al, recognize
this in the conclusion of their report at p. 23, where it is stated:

Used cautiously and with
appropriate recognition of its limitations, QEEG offers the clinician an
accurate laboratory test to aid in the detection and differential diagnosis of
several common neuropsychiatric disorders.  …  Additional uses of QEEG
showing promise but not yet sufficiently developed for routine clinical
application include the prediction of medication efficacy and the prediction of
the clinical cause of a disorder.

There is nothing in that conclusion to suggest it will
become clinically useful in diagnosing traumatic brain injury in the near
future; however, it remains open for such evidence to be offered through an
appropriate expert if and when it satisfies the evidentiary requirements of Canadian
Courts.

[60]        
The evidence of QEEG analysis given by Dr. Malcolm is rejected as not
being offered by a qualified expert.  QEEG does not meet the requisite
reliability threshold and is still novel science.

               “J.
K. Bracken, J.”               

The
Honourable Mr. Justice Bracken