IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20111216

Docket: 09 2673

Registry:
Victoria

Between:

Alana Campbell
also known as Alana Fishkin
also known as Alana James

Plaintiff

And:

Nancy Louise McDougall

Defendant

Docket: 08 0041

Registry: Victoria

Between:

Alana Campbell
also known as Alana Fishkin
also known as Alana James

Plaintiff

And:

John Marsden

Defendant

Before:
The Honourable Mr. Justice Gaul

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: The plaintiff,
Ms. Campbell, was involved in two motor vehicle accidents, one in 2006 and
the other in 2008. She has commenced legal actions seeking damages against the drivers
of the other vehicles and the trials of those actions are set to be heard
jointly, commencing on 6 February 2012 for 25 days.

[2]            
As they are entitled to do, the defendants have
filed notices that they wish to have their trials heard before a judge sitting
with a jury. On the applications before me, the plaintiff seeks to strike those
jury notices, pursuant to Rule 12‑6(5) of the Supreme Court Civil Rules.

[3]            
Ms. Stevens, counsel for the defendant
Ms. McDougall, made comprehensive submissions, both written and oral, on
the application relating to Ms. McDougall’s trial. For the sake of
efficiency and expediency, Mr. McDonagh, counsel for the defendant Mr. Marsden,
simply adopted and relied upon Ms. Stevens’ submissions. This approach
made good sense, given that the issues and considerations in both applications
were identical.

Position
of the Parties

  The
Plaintiff

[4]            
In seeking the orders that she does, the plaintiff
relies on the grounds articulated in Rule 12‑6(5)(a)(i) and (ii), namely
that the issues involved in this litigation require prolonged examination of
documents or accounts or a scientific or local investigation that cannot be
made conveniently with a jury, and the issues are of an intricate or complex
character.

[5]            
In his submissions on behalf of the plaintiff,
Mr. Cameron described Ms. Campbell’s position as follows:

The proper assessment and
determination of the issues in this case will require the examination of a
large number of medical documents, including extensive clinical records, tests,
and medical‑legal reports in the face of conflicting medical diagnoses
and expert opinions, a complex medical history, and a set of unusual presenting
symptoms. It will require an analysis of conflicting expert medical reports on
complex scientific issues. Further, it will require the analysis and review of
economic and actuarial evidence relating to the plaintiff’s loss of capacity
claim.

  The
Defendants

[6]            
In her submissions, Ms. Stevens explained
the defendants’ position as follows:

This is not a
brain injury case. It is a chronic pain case. At its core, this is a case about
neck pain and headaches.

. . .

In short, this
is a case about chronic neck pain which has been complicated by depression and
medication overuse and its effect on the plaintiff’s ability to function.

[7]            
In the affidavit of Margaret Stainer, sworn 18 November
2011 and filed in support of the defendants’ position, the defendants’ theory
and approach to this litigation is further explained at paragraph 9:

The main focus of the defendants
at trial will be whether the plaintiff has a pre‑existing psychological
disorder and whether her problems stem from physical or psychological causes or
a combination thereof. The issues are the extent of the injuries the plaintiff
suffered in the motor vehicle accidents, causation, the economic loss suffered
by the plaintiff as a result of the accidents, and her credibility in the broad
sense of the word.

The Law

[8]            
The test to be applied on an application to
strike a jury notice was articulated by Lambert J.A. in Nichols v. Gray,
[1979] 9 B.C.L.R. 5 (C.A.) at page 14:

On the basis of the evidence
before him, the chambers judge may find or may decline to find:

 1.        That the issues
require prolonged examination of documents or accounts;

 2.        That the issues
require a scientific or local investigation; or

 3.        That the issues are
of an intricate or complex character.

When he makes those findings he
is not, at that stage, exercising a discretion, but, rather, making findings of
fact on the basis of evidence. If, after considering the evidence, he does not
make one of those findings, then there is no ground for granting the order.
However, if the evidence is such that one or more of those findings of fact is
made, or should be made, then the judge is required to exercise the
discretionary jurisdiction contemplated by the subrule. If the finding is
either that the issues require prolonged examination of documents or accounts,
or that the issues require a scientific or local investigation, then the
discretion must be exercised in relation to the question of whether the
examination or investigation can be made conveniently with a jury. If the
finding is that the issues are of an intricate or complex character then the
discretion must be exercised in relation to the question of whether the trial
should be heard by the court without a jury. Clearly the discretion in the
latter case has a broader amplitude.

Discussion

[9]            
The plaintiff seeks an award of non‑pecuniary
damages from the defendants for a number of injuries, including traumatic brain
injury with associated sequelae, pain to her neck, pain to her
shoulders, pain to her back, headaches, pain to her left arm and hand,
post-traumatic stress disorder, depression, adjustment disorder, cognitive
disorder, chronic pain, and pain disorder. The plaintiff also alleges she is
entitled to an award of damages for, amongst other things, loss of wages, both
past and future, as well as loss of future earning capacity.

[10]        
The plaintiff candidly acknowledges that the two
accidents in question did not entail major collisions and that the material
damage to the vehicles involved was not significant. Nevertheless, she
maintains that the physical and psychological consequences that are
attributable to the accidents have been dramatic and justify a considerable
award of damages.

[11]        
The defendants have denied liability. Notwithstanding
that fact, I was advised by counsel for the defendants during the course of her
argument that this facet of the defence will not be pursued at trial. Instead,
the defendants will be vigorously challenging the reliability and credibility
of the plaintiff’s evidence. As Ms. Stevens noted in her submissions, “credibility
is in issue in the broadest sense of the word”.

[12]        
My analysis begins with the presumption that the
defendants have a right to a jury trial and that the denial of such a right
should only occur if I am satisfied that one or more of the provisions set out
in Rule 12‑6(5) have been met (see: Cochrane v. Insurance Corporation
of British Columbia, 2005 BCCA 399).

  Prolonged
Examination of Documents

[13]        
The plaintiff asserts that her case is of such a
complex nature that it will require her to carefully present an unusually large
and varied amount of evidence. In other words, this is not an average or ordinary
personal injury case. The plaintiff also says the factual circumstances of her
claims compel her to rely upon a significant amount of documentary evidence, much
of which is complex in nature.

[14]        
The plaintiff has served approximately 20 expert
reports authored by 16 different experts. In reply, the defendants have served
10 expert reports prepared by seven experts. Combined, these reports amount to
approximately 700 pages. The jury is therefore facing the prospect of
examining, considering, digesting, and retaining information from approximately
30 reports authored by 23 experts. The range of expert evidence is as broad as
it is long, and it includes: general medicine, physiatry, psychiatry,
neuropsychology, psychology, anaesthesiology, neurology, plastic surgery,
occupational therapy, physiotherapy, forensic engineering and economic
actuarial analysis.

[15]        
In addition to these expert reports, there are
also over 1,200 pages of clinical records relating to the plaintiff’s condition
and treatment. Many of these records will be used in cross-examination of the
plaintiff and consequently the jury will need to be instructed on the proper
use of such records.

[16]        
The defendants acknowledge that due to the
number of treatments the plaintiff has sought and undergone over the years, this
litigation involves more than the usual number of clinical records. The defendants
also agree that there is a vast amount of neuropsychological raw data that may need
to be presented and explained to the jury. However, the defendants point out
that the nature and contents of these records has not been disclosed to the
court. The defendants maintain that most if not all of the documents in
question are not so complex that their examination and analysis by the jury
would be unduly taxing for them.

[17]        
Having reviewed the materials submitted on these
applications and having considered the submissions of counsel, I am satisfied
that there is a vast amount of documentary evidence that will likely be
presented to the jury in this trial. I accept what the plaintiff says on this
point, and I also accept that many, if not most, of the documents in question will
relate to scientific or other expert areas of evidence and will be of a complex
nature.

[18]        
In my opinion, because of the nature of the
issues in play at this trial, the immense quantity and variety of material that
is likely to be presented into evidence, the real potential for differing uses
of this material, and the complex nature of much of the material, the jurors in
this case will be called on to engage in a prolonged examination of documents
or accounts.

  Scientific
Investigation

[19]        
The plaintiff has undergone approximately 60
tests over the past five years. Some of those tests have been of a physical nature;
others have addressed psychiatric or psychological issues. These tests have
been referred to and used by the authors of many of the medical‑legal
reports that have been prepared for the trial. Many, if not all, of the expert
medical reports rely upon these tests to base their expert opinions. The
opinion evidence of the medical experts varies and in some respects there is conflict
between the opinions. The jurors will therefore need to understand and
appreciate any tests upon which these opinions are based.

[20]        
I agree with the plaintiff that the tests will
have to be described and explained in detail to the jurors. This will involve
explaining the purpose of the tests, as well as the clinical significance of
the test results. It will also entail having to explain the specific technical
terminology used in the tests and the reports.

[21]        
Although the defendants are not directly
challenging the validity of the testing, they will be challenging the plaintiff’s
credibility and alleging that, because of her educational training and her
employment background, she was able to manipulate the test results.

[22]        
In assessing this facet of the applications before
me, I find the following comments of Rowles J.A. in Cochrane
apposite:

[37]      In my opinion, the
chambers judge erred in failing to assign sufficient weight to the nature of
the challenge to the tests that were administered in this case. One of the
issues will be whether the results of the tests are reliable when administered
to a plaintiff who, through her profession, has acquired substantial knowledge
about the tests. A jury which is asked to assign weight to the results of the
tests is ill‑equipped to do so in the absence of a comprehensible
explanation of the design of the tests, the safeguards employed by the tests,
and explanations pertaining to the scientific validity of the tests. The
experts are at odds respecting the reliability and validity of the neuropsychological
testing that was conducted in this case. Resolution of this issue will require
the experts to explain the technical terms in their reports, the design of the
17 different neuropsychological tests administered, and the reasons for
validity of those tests where they are administered to a neuropsychologist.

[23]        
In my opinion, the expert medical evidence
relating to the plaintiff’s psychological or psychiatric condition will be vital
evidence at trial. I will refer to only a sample of these opinions to point out
the difficulty the medical experts have had in providing a diagnosis of the
plaintiff’s condition.

[24]        
Dr. Michael Jones, a neurologist who
examined the plaintiff on behalf of the defendants, remarks in his
medical-legal report dated 23 October 2009:

This is a very puzzling and
troubling case because of a major mismatch between her self‑reported
symptoms and the clinical facts.

. . .

It doesn’t appear to me that a
definite diagnosis has been made with respect to her chronic neck pain.
Although Dr. Vincent has hypothesized an injury to the facet joint, it’s
clear that the “definitive treatment”, i.e. his fluroscopic-guided
radiofrequency neurotonomies, have not been helpful.

. . .

I don’t understand the basis for
the major mismatch between her self‑reported complaints, in terms of
trying to directly attribute them to two very minor MVAs.

[25]        
Dr. Derryck Smith, a psychiatrist who also examined
the plaintiff on behalf of the defendants, opines in his medical-legal report
dated 7 July 2010:

Ms. Campbell had an unusual
array of medical symptoms well prior to the motor vehicle accidents, many of
them involving pain … It is my opinion that Ms. Campbell had developed a
pattern of developing medical symptoms and seeking out medical attention as a
way of meeting unmet emotional needs. She had become an expert at presenting
medical symptoms as she had been trained as a simulated patient for medical
school examinations and studied to become a nurse. She had no difficulty
obtaining referrals to a wide variety of specialists as a result of presenting
with a multitude of symptoms. In spite of numerous investigations most of the
tests that were performed before and, for that matter, after the motor vehicle
accidents in question, are all normal.

. . .

It is my opinion that Ms. Campbell
has a complicated, pre‑existing psychiatric disorder lying somewhere
between the Somatoform and factitious Disorders…

. . .

…I find it difficult to
understand whether this woman was experiencing pain unconsciously, which would
put her diagnosis in the area of a Somatization Disorder, or whether she was
intentionally feigning the pain in order to get more and more treatment.

. . .

I wish to be clear that I am not
diagnosing this woman with Malingering; I am simply raising that as one of
the diagnostic possibilities in this complicated case.

[26]        
Dr. Stephen Maloon, an orthopaedic surgeon
who examined the plaintiff on behalf of the defendants, concludes in his
medical-legal report, dated 21 February 2011:

It is my opinion that her
treating physicians have been manipulated, and in so have enabled her and
perpetuated her illusion of injury and even disability.

Her presentation has features of
Münchausen’s syndrome, a condition in which a person intentionally fakes,
simulates, worsens or self‑induces an injury or illness for the main
purpose of being treated like a medical patient.

[27]        
Dr. Shayna Chamitoff has been the
plaintiff’s treating psychiatrist since the fall of 2007. Dr. Chamitoff’s
treatment of the plaintiff has included approximately 90 meetings with the
plaintiff up to June of this year. In her medical-legal report dated 18 July
2011, Dr. Chamitoff explains that the plaintiff suffers from a “major
depressive disorder (recurrent, chronic) partial remission”; a “cognitive
disorder not otherwise specified” and “Post Traumatic Stress Disorder (partial
remission)”. Dr. Chamitoff also concludes:

As regards “the
unusual array of medical symptoms prior to the MVAs”, and the statement “prone
to exaggerating her medical symptoms”, I find this description inconsistent
with Ms. Campbell’s clinical presentation, information from collateral
people who have known her for a long time, and information from standardized
Psychological tests.

. . .

In my opinion,
Ms. Campbell did not have a pre-existing psychiatric condition. Certainly,
Factitious Disorder, and Malingering, otherwise known as Lying for Personal
Gain, are inconsistent with her clinical presentation, her personal and
vocational history, her world view and personal value system, and family of
origin dynamics.

[28]        
Dr. Ann Giles was the plaintiff’s general
physician from prior to the first motor vehicle accident in 2006 until January
2009. Since February 2009, Dr. Giles has been employed as a medical
advisor with WorkSafeBC. In her medical-legal report dated 11 October
2011, Dr. Giles states:

I do believe
that Ms. Campbell has a pain disorder (one type of the somatoform
disorders as noted by Dr. Smith) and that the motor vehicle accidents had
a significant role in the onset of the pain.

. . .

In my opinion,
Ms. Campbell does meet the DSM-IV-TR criteria for a somatiform (sic)
disorder, specifically pain disorder. As stated in the description above, her
main complaint is pain and she has significant impairment in social and
occupational functioning. I believe the underlying medical condition in the
development of the pain disorder is the chronic myofascial pain in her neck
dating from the MVA of 2006.

[29]        
Dr. Atholl Malcolm is a clinical
psychologist and neuropsychologist who examined and assessed the plaintiff over
the course of four interviews in the fall of 2008. Dr. Malcolm diagnosed
the plaintiff with a “Cognitive Disorder Not Otherwise Specified (DSM-IV-TR,
294.9)” and “Post-Traumatic Stress Disorder (DSM-IV, 309.81)” and in his
medical-legal report dated 4 November 2008, he notes:

It is my opinion
that there are a significant number of indications of brain injury. These
include significant negative discrepancies in the intellectual profile,
especially in the areas of Working Memory and Processing Speed, memory
impairment, executive functioning deficits, attentional deficits, subtle
deficits in oral production, and psychomotor impairment.

[30]        
In my opinion, the significant variety and the
clash of the medical‑legal opinions relating to the plaintiff’s diagnosis
and prognosis will require the jurors to embark upon a scientific
investigation. In reaching this conclusion, I find the following observations of
Esson J. (as he then was) in Sadowick v. Doobay, [1982] B.C.J.
447 (S.C.), at paragraph 12, equally applicable to the case at bar:

[12]      It is,
in my view, beyond serious argument that the conflict of expert medical opinion
requires a scientific investigation within the meaning of the rule. I hold that
it is one which cannot conveniently be tried by a jury. I also hold that the
issues of fact are of an intricate and complex character within the meaning of
the rule.

  Issues
are of an Intricate or Complex Character

[31]        
In September of this year, the defendants applied
for an order that the plaintiff attend for additional examination for
discovery. The plaintiff had already undergone 11 hours of discovery. In
allowing the application, Master Bouck accurately summarized the nature of this
litigation at paragraphs 9 to 12 of her reasons, which are reported at 2011
BCSC 1242:

[9]  The parties agree that the
plaintiff’s claim is complex. The medical evidence is described as consuming
five binders. Opinion evidence has been obtained from several experts,
including orthopods and psychiatrists. The plaintiff has sought a wide variety
of treatment for her complaints. Ms. Campbell’s health for the 14-year
period preceding the first accident is under scrutiny.

[10]  There is very little
agreement between the medical experts regarding both causation and the
prognosis for Ms. Campbell’s complaints.

[11]  The defence theory is that
the plaintiff suffers from a syndrome “somewhere between” a Somatoform and
Factitious disorder. The syndrome compels Ms. Campbell to seek medical
treatment even if no objective findings of illness or injury result. Ms. Campbell
trained and worked as a nurse before obtaining her law degree. The defence
suggests that medical knowledge obtained in that line of work contributes to
the disorder. The defence experts suggest that the disorder is long-standing
and unrelated to either of the motor vehicle accidents.

[12]  Needless to say, Ms. Campbell’s
credibility will be very much at issue at trial.

[32]        
In my opinion, the number of expert reports
involved in this litigation, the varying opinions contained in those reports,
the medical terms and principles referenced in the reports, and the plaintiff’s
unique educational and professional background combine to make this case a
significantly complex one.

  Convenience

[33]        
I have considered the case law presented by
counsel that has addressed the issue of convenience. In particular, I have taken
note of the decision of McEachern C.J. (as he then was) in Wipfli (Guardian
ad litem of) v. Britten, [1982] 32 B.C.L.R. 343 and his
explanation at paragraph 27 of the term “convenience”:

Convenience, in
the sense in which that word is used in the rule, does not depend solely upon
whether or not the jury can be made to understand the evidence….What is
required before it is convenient to have a scientific investigation made with a
jury is the ability to have a proper trial, which includes not just an
understanding of the evidence as it is being given, but also an ability to
retain this understanding throughout a long trial in a form which permits an
analysis of the evidence in relation to the difficult questions which must be
decided at the end of the case.

[34]        
In my opinion, 25 days constitutes a reasonably
long trial. It will, as I have already noted, require a prolonged examination
of documents, as well as a scientific investigation on the part of the triers
of fact.

[35]        
In Steinebach v. Fraser Health Authority,
2009 BCSC 1577, a decision of H. Holmes J. the court allowed an
application to strike a jury notice in a medical malpractice suit. In
concluding that it would be inconvenient to try the case with a jury, the court
observed at paragraph 23:

It is neither reasonable nor
practicable to expect a jury to determine a series of challenging issues based
on weeks of complex oral testimony, much of it expert evidence, and voluminous
written expert reports. The case authorities note the challenges to a jury of
retaining through a lengthy trial its understanding and impression of the
evidence. The realities of the single and usually continuous process of
deliberation would, in a case such as this, increase the challenges and would,
in my view, place an unreasonable burden on the members of the public who
serve.

[36]        
In my opinion, those observations are equally
applicable to the case at bar.

Conclusion

[37]        
I find that the issues that will be addressed at
the joint trial of these matters will require the trier of fact to engage in a
prolonged examination of documents, as well as a scientific investigation. I
also find that the issues in dispute between the parties are of an intricate or
complex nature.

[38]        
I have reviewed and considered the authorities
Ms. Stevens has submitted where juries have addressed complex issues in
personal injury cases, as well as other types of claims, over the course of
long trials. Having done so and having regard to the principles articulated in Nichols,
it is my considered opinion that the examination and investigation in the
present case cannot be made conveniently with a jury. Moreover, given the
intricate and complex nature of the issues in dispute, in my view this case is
not one that is suitable for trial with a jury.

Order

[39]        
The plaintiff’s applications are granted. The
jury notices in both cases are

struck out. The
joint trial of these matters will therefore take place before a Supreme Court
justice sitting without a jury.

[40]        
Costs will be in the cause.

“G.R.J.
Gaul J.”