Jewell v. Lincoln, 2014 NSSC 433

SUPREME COURT OF Nova Scotia Citation: Jewell v. Lincoln , 2014 NSSC 433 Date: 20141128 Docket: Tru No. 408788 Registry: Truro Between: Anne L. Jewell and Thurman M. Jewell, parents of Leia Bettina Jewell, on behalf of the Estate of Leia Bettina Jewell, and in their own right, pursuant to the Fatal Injuries Act , R.S.N.S., 1989, c. 163 Plaintiffs v. Dr. Maximillian Christian Lincoln, Pictou County Health Authority, a body corporate, and I-Flow, LLC, a body corporate Defendants Decision Judge: The Honourable Justice Gerald R. P.

Moir Heard: Transcribed, edited, and released on: November 28, 2014, in Halifax, Nova Scotia December 11, 2014 Counsel: Melissa P. MacAdam, for the Plaintiffs Loretta Manning and Andrea Isabelle, for the Defendant Dr. Maximillian Christian Lincoln Karen Bennett-Clayton, for the Defendant Pictou County Health Authority Peter M. Rogers, for the Defendant I-Flow, LLC Moir J. (Orally): [ 1 ] In March 2011, Leia Jewell died after having shoulder surgery. The Nova Scotia Medical Examiner’s office found she died from acute lidocaine intoxication. [ 2 ] Ms.

Jewell had undergone shoulder surgery at the Aberdeen Hospital in New Glasgow. Her surgeon fitted her with a fixed flow rate On-Q pain pump and filled it with a lidocaine solution, so she could be discharged and rely on the lidocaine to anaesthetize the surgical wound. She went home. She died two days later. [ 3 ] A fixed flow rate On-Q consists of a plastic, balloon-like device which is filled with the painkilling solution. By elastic action, the balloon slowly forces solution down a tube that leads to a catheter. The catheter is inserted into the body at the surgical wound.

This way, the wounded area is directly anaesthetized. [ 4 ] Ms. Jewell absorbed much more than the intended dose. This killed her. The possibilities seem to be: • Ms. Jewell squeezed the balloon to try to force more solution into her. • The On-Q system was incorrectly installed, or filled, by the surgeon. • The solution was too strong; that is to say that it was above the 2% required. • There was a mechanical failure of the On-Q machine.

[5] Ms. Jewell’s estate and her parents sued the surgeon and the hospital. They also sued I-Flow, LLC, the manufacturer of theOn-Q pump. [6] The plaintiffs had possession of the pump that Ms. Jewell had used. I-Flow required that the plaintiffs obtain court approvalfor testing before anyone inspected, measured, or tested the device. The plaintiffs, the hospital, and the surgeon propose that the courtappoint an expert to do the inspecting, measuring, and testing and to provide opinions in a report to the court. [7] I-Flow vigorously opposes the plaintiffs’ motion.

Most of all, it objects that the test will be destructive, or partiallydestructive, when the balloon is filled for testing. Real evidence may be lost before we know exactly what is being sought and who hasthe best expertise to seek it. [8] I-Flow also says that we would be embarking on a test when its validity must be suspect. An On-Q can only be used once, andthe one in question is used. Further, its best-before date is passed. Furthermore, the device may have been damaged after Ms. Jewell lefthospital. [9] I-Flow also opposes the concept of a court appointment.

An expert could as easily be retained by a party and put forward as aparty’s witness. [10] I-Flow relies on Ocean v. Economical Mutual Insurance Co., 2009 NSCA 81. That case applied Ontario decisions aboutOntario Rule 267(1) to Nova Scotia Civil Procedures Rules (1972), Rule 23.01. The Ontario Rule provided: The court may obtain the assistance of merchants, engineers, accountants, actuaries or scientific persons, in such way as it thinks fit, thebetter to enable it to determine any matter of fact in question in any cause or proceeding, and may act on the certificate of such persons.

This was said to be “the equivalent rule” (para. 64 of Ocean) to our old Rule 23.01. This equivalent rule had been interpreted in Ontarioso that “it is to be used only to assist the court in interpreting evidence and not to create evidence in order to prove a fact in issue” (alsopara. 64 of Ocean). [11] Respectfully, I should have thought that the equivalent provision in Nova Scotia is s. 35 of the Judicature Act. In any case, thereasoning in Ocean was expressly limited to the 1972 Rules: para. 64. [12] Our present Rule 55.12 is in no way equivalent to the Ontario Rule considered in Ocean.

Indeed, to hold that Rule 55.12 cannotbe used to create independent evidence would be to repeal the Rule. It demands an opinion that is “likely to be admissible”: Rule55.12(1)(b); it permits discovery by questions in writing: 55.12(2)(

f) and Rule 55.12(3), and; it protects the right of cross-examination: Rule 55.12(5). [13] The expert report referred to in 55.12(2)(

b) is prescribed in Rule 55.04. It has to include a promise to testify at the trial: 55.12(2)(h). [14] Therefore, the reasoning in Ocean has no application to Rule 55.12. [15] Rule 55.12 speaks broadly. There is a discretion to appoint a person to formulate an opinion and report the opinion to thecourt.

Apart from the restriction that applies without being said, discretion is exercised for justice, the discretion is limited only by Rule55.12(1)(a) “the person is qualified to give the opinion” and (b) “the opinion is likely to be admissible”. [16] Therefore, Rule 55.12 provides a broad discretion for the court to obtain an expert opinion for admission at trial, if thethresholds in Rule 55.12(1) are met and the judge is satisfied that appointing the expert serves justice. [17] The expert proposed by the plaintiffs, and acceptable to two of the defendants, is William Martin Gentles, Ph.D., P.Eng., CCE.

He obtained a Ph.D. in Biomedical Engineering forty years ago from the University of Toronto. For almost thirty years, Dr. Gentles wasthe director of the Department of Biomedical Engineering at a teaching hospital affiliated with the University of Toronto. For the pastseventeen years, he has been a vice-president of a medical technology consultancy. His extensive consultancy experience includesinvestigations of at least three occurrences involving medical pumps. As pointed out for I-Flow, we do not know the extent of hisexperience with plastic pumps operating by elastic action.

In addition to hospital practice and consultancy in medical engineering, Dr.Gentles taught, worked on projects, researched, and published extensively in his field. [18] I am satisfied that testing and investigation of a piece of medical equipment, like the On-Q pain pump, would likely lead toexpert opinions. It is likely a resulting opinion would be admissible on the principles in R. v. Mohan, (SCC), [1994] 2S.C.R. 9, if the opinion is relevant. [19] Relevancy is clear, although it cannot be pinned down. It may be that Dr.

Gentles will tell us that, due to use, passage of time,or other reason, he cannot say whether or not the On-Q functioned within its expected tolerances. That would be a relevant opinionhelpful to the trier of fact, and it would be preferable to informed speculation by lawyers and judges. Beyond that, the range of possibleopinions goes from that the pump definitely did not malfunction to that it definitely did.

Relevancy and helpfulness are obvious foropinions at either end of that spectrum and all points in between. [20] I-Flow submits that the justice of a court appointed expert is outbalanced by two considerations, in the circumstances in thiscase. First, court appointment would create a false impression of independence. Dr. Gentles is “no more neutral or independent than anyother expert retained by one or more parties”.

If such were possible, “any party” could “contact an expert, establish a relationship andask the Court to declare the expert to be a Court appointed expert”. [21] It would not usually serve justice for the court to appoint as an expert one who had an established relationship with a party. The

independence and neutrality of the court must extend to its appointed officers. That principle should apply to the appointment of an expert. [ 22 ] I have been shown the correspondence between Ms. MacAdam and Dr. Gentles. They appear to be at arm’s-length. If that arm’s-length relationship does not satisfy I-Flow, its argument is with Rule 55.12 itself. [ 23 ] Further, the Rules now insist on independence of an expert, whether retained by a party or not. See Rule 55.04(1). I would require a report that conforms with Rule 55.04. Indeed, I believe that Rule 55.12 requires just such a report.

If a proposed expert was not prepared to conform with that Rule, then I would revoke the appointment on motion by correspondence. [ 24 ] The second reason I-Flow submits the appointment would not serve justice goes to the possible prematurity of the destructive testing. It says that the plaintiffs should get their expert to produce a test plan before testing is authorized. [ 25 ] No party wants to bear the blame if destructive testing leads to the unforeseen. A judge can assess the risk, and insulate all parties from blame by making an independent decision.

In this case, I rely on the solid credentials and extensive experience of Dr. Gentles to keep destructive testing to the minimum necessary and to alert all parties if he sees a better approach that could be taken at a later time. [ 26 ] Further, and more importantly, the court appointed expert should not take directions from any one party. Allowing Dr. Gentles to formulate his own test plan keeps him clearly independent. The draft order provides for observers appointed by parties. I am confident that Dr.

Gentles would explain and discuss what he is about to do. [ 27 ] Rule 55.12 provides an opportunity to enhance the independence of a potential expert witness by appointing an expert who has no significant relationship with any party. It is an attractive opportunity in cases where distance from a particular party is helpful. This is one way in which the discretion to appoint an expert can be used to serve justice. [ 28 ] The thresholds in Rule 55.12(1) have been met. Also, I am satisfied that the appointment of an expert for this task is likely to further justice. Consequently, I will grant the order. Moir J.