Layes v. Bowes, 2020 NSSC 345

SUPREME COURT OF Nova Scotia Citation: Layes v. Bowes , 2020 NSSC 345 Date: 20201208 Docket: Hfx No. 478371 Registry: Halifax Between: Kevin Joseph Layes and Carmen Marie Blinn Plaintiffs/Respondents v. Dr. Matthew Bowes, Dr. Stephen Paul Sturmy, National Medical Services Inc. carrying on business NMS Labs, The Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendants/Applicants Judge: The Honourable Justice Ann E.

Smith Heard: October 29, November 2, 3, 2020, in Halifax, Nova Scotia Counsel: Kevin Joseph Layes and Carmen Marie Blinn Self Represented Plaintiffs/Respondents Agnes E. MacNeil, Q.C., Neil J. G. Kuranyi for the Attorney General of Nova Scotia Colin J. Clarke, Q.C., for Dr. Sturmy Scott R. Campbell and Sarah A. Walsh for National Medical Services Labs By the Court: Introduction [ 1 ] This is a motion brought by each of the Defendants, Dr. Matthew Bowes (“Dr. Bowes”), the Attorney General of Nova Scotia (“AGNS”), Dr. Stephen Paul Sturmy (“Dr.

Sturmy”) and National Medical Services Inc. (“NMS”) to strike all or portions of the affidavits filed by the Plaintiffs in support of their motion for an order to exhume the remains of the late John James Layes, Sr. for collection and testing (the “exhumation motion”). The exhumation motion has not been scheduled. [ 2 ] The Plaintiffs filed the following affidavits in support of their exhumation motion: a. The affidavit of Kevin G. Shanks b. The affidavit of Dr. Vincent Cirimele c. The affidavit of Dr. Gail Audrey Ann Cooper d. The affidavit of Dr. Michele Slone

e. The affidavit of Carmen Blinn f. The supplementary affidavit of Carmen Blinn g. The affidavit of Kevin Layes h. The affidavit of Robert Pineo i. The supplementary affidavit of Robert Pineo [ 3 ] The Plaintiffs seek to amend their Notice of Motion filed on September 24, 2019 to include exhumation of the body of the late John Layes Senior for autopsy, as well as testing. Background [ 4 ] These motions are brought within the context of the within action.

In the Statement of Claim, Kevin Layes, a son of the late John James Layes, Sr., alleges that his father was murdered by family members through the administration of poison over a several month period and that Dr. Sturmy assisted in that process. Kevin Layes and his spouse, Carmen Blinn, allege that Dr. Bowes, Chief Medical Examiner of the Province of Nova Scotia, negligently conducted an autopsy of the remains of the late John James Layes.

The Plaintiffs also allege that NMS, an American laboratory which routinely conducts toxicology testing for the Province of Nova Scotia, negligently performed its work and participated in a “cover-up” of the real cause of death of Mr. Layes, Sr., and that that cause of death was chronic poisoning. [ 5 ] The findings of the autopsy conducted by Dr. Bowes on March 7, 2014, were that Mr. Layes, Sr. died of natural causes. [ 6 ] The Plaintiffs say that at or around the time Mr. Layes, Sr. died, they obtained a lock of his hair and sent it to a toxicology laboratory, ChemTox, in France, for analysis.

They shared the results of the ChemTox analysis with Dr. Bowes before he finalized his post-mortem report, on the basis that the ChemTox results allegedly confirmed their suspicions that Mr. Layes, Sr.’s cause of death was chronic poisoning. [ 7 ] The results of the ChemTox analysis of the hair sample did not alter Dr. Bowes’ opinion that Mr. Layes, Sr. died of natural causes. [ 8 ] Each of the Defendants deny all of these allegations.

Procedural History and the Allegations Against the Defendants in the October 16, 2019 Statement of Claim [ 9 ] Kevin Layes initiated various court proceedings in which he alleges that his father was murdered by family members. [ 10 ] One such proceeding was Hfx No. 471151 – Kevin J. Layes v. AGNS . That proceeding was started as a Notice of Application in Chambers. In it Kevin Layes sought an order of this Court to exhume the remains of his father.

This Court dismissed the motion on the basis that the Plaintiff had not given notice to the AGNS pursuant to the Proceedings Against the Crown Act , R.S., c. 360, s. 1.

The decision of this Court in Hfx No. 471151 is reported at 2018 NSSC 29 . [ 11 ] The within proceeding, Hfx No. 478371, was filed with the Court on July 16, 2018. [ 12 ] On August 31, 2018, the AGNS brought a motion for an order to strike the Statement of Claim on the basis that portions of it plead evidence and immaterial facts contrary to Rule 38.02(3) and on the basis that portions of the Statement of Claim were vexatious, scandalous or an abuse of process contrary to Rule 88. [ 13 ] By order of Bodurtha J. of this Court, the Plaintiffs’ Statement of Claim was struck in its entirety, with leave granted to the Plaintiffs to file a newly drafted Statement of Claim on or before October 31, 2019. [ 14 ] The Plaintiffs filed the within Amended Statement of Claim on October 16, 2019.

Issues 1. Does the proffered opinion evidence meet the test for admissibility at common law or pursuant to Rule 55 and comply with the requirements for content of affidavits mandated by Civil Procedure Rule 39.02? 2. Should the affidavits of the lay witnesses be struck in whole or in part because they offend the Rules and the common law?

Positions of the Parties [ 15 ] The Plaintiffs say that each of the affidavits filed in support of their motion to exhume the remains of John James Layes meets the test for admissibility of an expert report as confirmed by the Supreme Court of Canada in White Burgess Langille Inman , 2015 SCC 23 (S.C.C.) (“ White Burgess ”).

They say that the proposed experts are highly qualified to provide the Court with expert opinion evidence for the benefit of the Court. [ 16 ] However, in their pre motion brief in this matter, the Plaintiffs, inexplicitly, also say that that the experts’ affidavits are not experts’ reports (p. 53). “These experts have filed affidavits, not expert reports”. (p.30). [ 17 ] The Defendants each say that the proffered experts’ reports do not meet the requirements of Civil Procedure Rule 55 or the

common law requirements for the admissibility of expert evidence established in White Burgess . Further, the Defendants say that several of the affidavits do not comply with Rule 39.02. [ 18 ] The Plaintiffs say that since the exhumation motion is an interlocutory motion in the within action, Rule 55 is not applicable. They admit that the White Burgess framework governs the admissibility of expert opinion evidence on the exhumation motion. [ 19 ] Before dealing with the first issue, this Court notes that in the Plaintiffs’ written submissions and in Mr. Layes’ oral arguments before the Court, Mr.

Layes sought to give opinion evidence, and to, at times, fill in gaps in the evidence of the proffered expert evidence. An example (one of many) of these improper attempts on Mr. Layes’ part to give opinion evidence (and opinion evidence without a factual foundation) is found in the Plaintiffs’ pre-motion brief (p. 9): Toxicology testing like that performed by NMS Labs has been exposed as deficient with multiple complications in countless matters.

Testing like that performed at NMS Labs is considered a point in time testing and of little value in chronic poisoning. … Chronic poisoning can not be ascertained from the toxicology performed on the specimens of John James Layes Sr. by NMS Labs and would carry no liability in a chronic poisoning matter in a court in any jurisdiction. [ 20 ] Mr. Layes was repeatedly advised by this Court during the hearing of the motion, that such “opinion evidence” would be completely disregarded by this Court, and it was.

Issue 1: Does the proffered opinion evidence meet the test for admissibility at common law or pursuant to Rule 55 and comply with the requirements for the content of affidavits mandated by Civil Procedure Rule 39.02? Admissibility of Affidavits Generally [ 21 ] Affidavits must comply with the Civil Procedure Rules and the rules of evidence. [ 22 ] Civil Procedure Rule 39.02 is relevant and sets out the basic rule that affidavits must be confined to admissible evidence: 39.02 Affidavit is to provide evidence

(1) A party may only file an affidavit that contains evidence admissible under the rules of evidence, these Rules or legislation.

(2) An affidavit that includes hearsay permitted under these Rules, a rule of evidence, or legislation must identify the source of the information and swear to, or affirm, the witness’ belief in the truth of the information. [ 23 ] Rule 22.15 allows for hearsay evidence on a procedural motion provided the affiant names the source of their information and states their belief of that source. [ 24 ] Rule 39.04(1) gives the Court discretion to strike an affidavit containing inadmissible or inappropriate material.

Rule 39.04(2) requires the Court to strike any part of an affidavit containing inadmissible information or hearsay not supported by evidence of the source and belief in the truth of the information: 39.04 Striking part of all of affidavit

(1) A judge may strike an affidavit containing information that is not admissible evidence, or evidence that is not appropriate to the affidavit.

(2) A judge must strike a part of an affidavit containing either of the following: (

a) information that is not admissible, such as an irrelevant statement or a submission or plea ; (

b) information that may be admissible but for which the grounds of admission have not been provided in the affidavit, such as hearsay admissible on a motion but not supported by evidence of the source and belief in the truth of the information . [Emphasis added] [ 25 ] Pursuant to Rule 39.04(3) a Court may strike an affidavit in its entirety if the portions struck result in an affidavit which is difficult to understand: 39.04 . . .

(3) If the parts of the affidavit to be struck cannot readily be separated from the rest, or if striking the parts leaves the rest difficult to understand, the judge may strike the whole affidavit.

[26] The decision of Davison J. in Waverley (Village) v. Nova Scotia (Acting Minister of Municipal Affairs, 1993 NSSC 71 (NSSC)(“Waverley”) on the proper and improper content of affidavits has consistently been followed by the Nova Scotia Supreme Court. [27] In Waverley, Justice Davison summarized the key principles governing the content of affidavits: 1. Affidavits should be confined to facts. There is no place in affidavits for speculation or inadmissible material. An affidavit should nottake on the flavour of a plea or a summation. 2.

The facts should be, for the most part, based on the personal knowledge of the affiant with the exception being an affidavit used inan application. Affidavits should stipulate at the outset that the affiant has personal knowledge of the matters deposed to except wherestated to be based on information and belief. 3. Affidavits used in applications may refer to facts based on information and belief but the source of the information should be referredto in the affidavit. It is insufficient to say simply that "I am advised". 4.

The information as to the source must be sufficient to permit the court to conclude that the information comes from a sound sourceand preferably the original source. 5. The affidavit must state that the affiant believes the information received from the source. (para. 20) [28] In Islam v.

Maritime Muslim Academy, 2009 NSSC 53 (NSSC) Justice Wright, with reference to Waverley, outlined what hecalled “legitimate criticisms” which ground a challenge to a proffered affidavit: …inadmissible hearsay, argumentative, speculative, containing unsupported conclusions and opinions, impermissible comment on Mr.Salah’s credibility and in some respects, irrelevancies.

These are all legitimate criticisms of the affidavit, contravening as it does theprinciples governing the form and content of affidavits set out in Waverley… (para. 33) [29] A party who files a scandalous, irrelevant or otherwise oppressive affidavit is subject to the abuse of process rule: Rule 39.05. [30] In Atlantic Building Systems v. Barefoot, 2000 NSCA 75 (NSCA) Bateman, J.A. upheld Justice Davison’s assessment of thenecessary form and content of an affidavit (that of Mr. MacArthur) which Justice Davison found was materially defective and ought to bestruck.

Justice Bateman noted that the affidavit in question contained, inter alia, attacks on Mr. Barefoot’s character: [19] I would agree with Justice Davison’s assessment of Mr. MacArthur’s main affidavit. It contains substantial commentary, opinionand scandalous allegations irrelevant to the matters in issue on the application. Parts of the affidavit are a narrative rant, paragraphed atrandom and attacking Mr. Barefoot’s character.

Included are comments such as: “. . . he appeared to be using drugs or experiencingwithdrawal symptoms”; “. . . it became increasingly likely by his actions that he was a frequent drug user . . .”; “. . . he proceeded to eattoo many jelly donuts”; “Barefoot again went back to the trunk of his car and, in an extremely agitated state, again began looking forsomething.

I was afraid it might be a gun.”; “[he] got back into his car and almost ran me over down (sic) before I could run behind astreet light pole.” The offending material so pervaded this lengthy affidavit, it could not be and should not have been edited by the judgeso as to conform with the requirements of Rule 38.02. While some technical deficiencies in affidavits may not preclude admission, thismaterial was markedly below the standard. [Emphasis added] [31] Oath-helping is inadmissible evidence and has no place in an affidavit. Justice McLachlin (as she then was) in R. v.

Burns, (SCC), [1994] 1 SCR 656 (S.C.C.) confirmed that evidence adduced solely for the purpose of proving that a witness istruthful is inadmissible: The rule against oath-helping holds that evidence adduced solely for the purpose of proving that a witness is truthful is inadmissible: R.v. Marquard, supra. The rule finds its origins in the medieval practice of oath-helping; the accused in a criminal case or the defendant ina civil case could prove his innocence by providing a certain number of compurgators to swear to the truth of his oath: see R. v. Béland,supra, per Wilson J. at pp. 419-20.

In modern times, it is defended on the ground that determinations of credibility are for the trier offact, and that the judge or jurors are in as good a position to determine credibility as another witness. Therefore the fundamentalrequirement for expert evidence -- that it assist the judge or jury on a technical or scientific matter which might otherwise not be apparent-- is not met. The rule, as Iacobucci J. noted in R. v.

B. (F.F.), (SCC), [1993] 1 S.C.R. 697, at p. 729, goes to evidence"that would tend to prove the truthfulness of the witness, rather than the truth of the witness' statements". (page 667) [Emphasis added] [32] In

summary, affidavits should not include, inter alia, irrelevant information, be argumentative, contain scandalous material,speculation, oath-helping or unsourced hearsay. Do the Rule 55 requirements apply to Expert Opinions in the Context of an Interlocutory Motion? [33] The Plaintiffs say that the Rule 55 requirements do not apply to the exhumation motion, which they say is an interlocutorymotion. They point to the wording of Rule 55.01(1) which provides: Scope of Rule 55

55.01(1) This Rule provides procedure about expert opinion sought to be introduced at the trial of an action or hearing of an applicationin court, and it does each of the following: (

a) requires disclosure of an expert opinion to be offered in a trial or hearing; (

b) provides for exclusion of expert opinion evidence that is not disclosed as required; (

c) requires experts to make written submissions to the court about the independence of the expert and the expert’s participation in theproceeding; (

d) limits discovery of experts. Report Required 55.02 A party may not offer an expert opinion at the trial of an action or hearing of an application in court unless an expert’s report, orrebuttal expert’s report, is filed in accordance with this rule. [Emphasis added] [34] As stated by Keith, J. in Sanford v. Carleton Road Industries Association, 2020 NSSC 185 (NSSC): Rule 55 is entitled “Expert Opinion” and, among other things it establishes minimal procedural standards for filing expert opinions interms of notice and content.

Rule 55 also addresses other matters such as the issue of admissibility, which is related to the question of procedural fairness, but alsodistinct from that issue, and specifically procedural… (paras. 1 and 2) [35] This Court finds that the procedural requirements of Rule 55 do not apply to experts’ reports proffered on an interlocutorymotion. The wording of Rule 55.01(1) makes it clear that Rule 55 provides procedure about expert opinion sought to be introduced at thetrial of an action or hearing of an application in court.

Expert opinion evidence sought to be introduced in an interlocutory motion doesnot fall within the scope of Rule 55. [36] In White Burgess the Supreme Court of Canada restated the law on the admissibility of expert evidence both in civil andcriminal cases. [37] The appeal which reached the Supreme Court of Canada arose in the context of a motion for

summary judgment before PickupJ of this Court. At issue was the admissibility of the expert report of Susan MacMillan, a forensic accountant. Counsel for the plaintiffsfiled the affidavit of Ms. MacMillan in which she set out her findings, including her opinion that the plaintiffs’ auditors had not compliedwith their professional obligations to the shareholder plaintiffs. The auditor defendants applied to strike Ms.

MacMillan’s affidavit on thegrounds that she was not an impartial expert since she was a partner with Grant Thornton, the plaintiffs’ auditor after discharging thedefendants. [38] Cromwell, J., writing for the Supreme Court, referred to Nova Scotia Civil Procedure Rule 55.01(2) as explicitly providing thatthe Rule 55 “does not change the rules of evidence by which expert opinion is determined to be admissible or inadmissible.” [39] That statement and Rule 55.01(2) apply to the within motion. [40] The Plaintiffs argue that since Susan MacMillan’s affidavit in White Burgess was not found inadmissible, that neither shouldthe expert affidavits proffered by the Plaintiffs in this case. [41] This Court’s task is to examine the proffered affidavits and determine whether each of the experts’ opinions meet the test forthreshold admissibility under White Burgess.

A “comparison” between Ms. MacMillan’s affidavit and the Plaintiffs’ proffered affidavitsis unwarranted. The proffered affidavits must be examined in their own right for compliance with the Rules and the common law. General Legal Principles on the Admissibility of Expert Evidence [42] Relevance has been described as a threshold requirement for all of the law of evidence: R. v. Mohan, (SCC),[1994] 2 S.C.R. 9 (S.C.C.) at 20-21 (per Sopinka J.). [43] Relevance is central to the admissibility of evidence. In R. v.

Corbett, (SCC), [1988] 1 S.C.R. 670 (S.C.C.)LaForest J. made this clear: The organizing principles of the law of evidence may be simply stated. All relevant evidence is admissible, subject to discretion toexclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise beexcluded on clear grounds of law or policy. (p.714)

[44] In R. v. Watson (1996), CarswellOnt 2884 (Ont. C.A.) Doherty J.A. explained relevance as whether the evidence offered, as amatter of logic and human experience, tends to prove or disprove a fact in issue. (para.33) [45] Opinion evidence is presumptively inadmissible since the general rule is that witnesses testify as to facts while conclusions orinferences derived from facts are the exclusive purview of the trier of fact: White Burgess at para. 14. [46] There are two exceptions to the general rule prohibiting opinion evidence.

The first is that of lay opinion evidence and thesecond is that of expert opinion evidence. [47] In R. v. D.D., 2000 SCC 43 , [2000] 2 S.C.R. 275, (S.C.C.) the Supreme Court of Canada confirmed that qualifiedpersons may express opinions on matters with respect to which the ordinary person is unlikely to appreciate the facts due to theirtechnical nature or to form a correct judgment without the assistance of persons with special knowledge (para. 47).

The “ordinaryperson” is a judge or a jury. [48] The purpose of expert opinion is to assist the trier of fact by providing special knowledge that the ordinary person would notknow. Its purpose is not to substitute the expert for the trier of fact. What is asked of the trier of fact is

an act of informed judgment, notan act of faith: R. v. J.-L.J., [2000] S.C.R. 600 (S.C.C.) at para. 56. [49] In White Burgess Cromwell J., speaking for the Supreme Court, outlined the dangers of expert opinion: 1. An expert’s lack of independence and impartiality can result in miscarriages of justice. 2. The risk is that the jury will be unable to make an effective and critical assessment of the evidence. 3. Expert evidence is resistant to effective cross-examination by counsel who are not experts in that field. 4.

Potential prejudice created by the expert’s reliance on unproven material might not be subject to cross-examination. 5. The risk of admitting “junk science”. 6. The risk that a “contest of experts” distracts rather than assists the trier of fact. 7. Expert evidence may lead to an inordinate expenditure of time and money. (para. 18) [50] In R. v. Abbey, 2009 ONCA 624 (OCA), the Court of Appeal outlined a two-step process for determining the admissibility ofexpert evidence: I suggest a two-step process for determining admissibility.

First, the party proffering the evidence must demonstrate the existence ofcertain preconditions to the admissibility of expert evidence… Second the trial judge must decide whether expert evidence that meetsthe preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to thetrial process that may flow from the admission of the expert evidence. (para. 76) [51] The Supreme Court of Canada in White Burgess followed the Abbey approach with minor variations: At the first step, the proponent of the evidence must establish the threshold requirements of admissibility . . .

Relevance at this thresholdstage refers to logical relevance . . . Evidence that does not meet these threshold requirements should be excluded.

Note that I wouldretain necessity as a threshold requirement. (para. 23) [52] Cromwell J. in White Burgess confirmed that a proposed expert’s independence and impartiality go to admissibility and notsimply to weight and there is a threshold admissibility requirement in relation to the expert’s duty to the court (para. 34). [53] Cromwell J. explained that the expert’s opinion must be impartial, independent and unbiased: . . . in the sense that it reflects an objective assessment of the question at hand.

It must be independent in the sense that it is the productof the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiasedin the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would notchange regardless of which party retained him or her: P. Michell and R. Mandhane, “The Uncertain Duty of the Expert Witness” (2005),42 Alta. L. Rev. 635, at pp. 638-9. These concepts of course, must be applied to the realities of adversary litigation.

Experts aregenerally retained, instructed and paid by one of the adversaries. These facts alone do not undermine the expert’s independence,impartiality and freedom from bias. (para. 32)

[ 54 ] The requirement that an expert be fair, objective and non-partisan is a duty owed to the court. The appropriate threshold for admissibility flows from this duty: White Burgess at para. 46 . [ 55 ] If a witness is unable to or unwilling to fulfill this duty owed to the court, they do not qualify to perform the role of an expert and should be excluded: White Burgess at para. 46 , quoting from Prof. Paciocco (as he then was) in “Taking a ‘Goudge’ out of Bluster and Blarney: an ‘Evidence-Based Approach’ to Expert Testimony” (2009), 13 Can. Crim. L.

R. 135, at p. 152 (para. 46). [ 56 ] Cromwell J. in White Burgess stated that the expert witness must, therefore, be aware of this primary duty to the court and be able and willing to carry it out (para. 46). [ 57 ] Cromwell J. observed that imposing this additional threshold requirement is not intended to, and should not result in, trials becoming longer or more complex.

He also observed that he would not go so far as to hold that the expert’s independence and impartiality should be presumed, absent challenge: My view is that absent such challenge, the expert’s attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that this threshold is met. (para. 47) [ 58 ] Once the expert attests or testifies on oath to this effect, the burden is on the party opposing the admission of the evidence to show that there is a realistic concern that the expert’s evidence should not be received because the expert is unable and/or unwilling to comply with that duty.

If the opponent does so, the burden to establish on a balance of probabilities this aspect of the admissibility threshold remains on the party proposing to call the evidence: White Burgess at para.48. [ 59 ] If the proffered opinion evidence passes the first stage, the trial judge must determine whether the benefits of admitting the evidence outweigh its potential risks, considering factors such as relevance, necessity, reliability and absence of bias: White Burgess at para. 54 . [ 60 ] Justice Cromwell in White Burgess stated that “[A]t the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers associated with expert evidence” (para. 54). [ 61 ] Applying this framework, the Court will assess admissibility of the proffered expert opinion evidence of Kevin Shanks, Dr.

Vincent Cirimele, Dr. Gail Cooper and Dr. Michelle Slone. The Affidavit of Kevin G. Shanks Sworn February 21, 2020 (the “Shanks’ Affidavit”) [ 62 ] Kevin Shanks is a senior forensic toxicologist employed by Axis Forensic Toxicology in Indianapolis, Indiana. [ 63 ] Mr. Shanks prepared a previous report for the Plaintiffs dated August 28, 2017 which is related to Mr. Layes, Sr., but for a different proceeding. This report is attached to Mr. Shanks’ Affidavit as “Exhibit B”. [ 64 ] Each of the Defendants submit that Mr.

Shanks’ Affidavit should be struck in its entirety, primarily because they say that his evidence is not that of an impartial expert offering opinion evidence for the assistance of the Court, but rather as, an “advocate” for the Plaintiffs. [ 65 ] The Defendants point to the following statements in the Shanks Affidavit as demonstrating that Kevin Shanks has assumed the role of “advocate” and is not an independent expert. Para 11: …there are emails from Dr. Laura Labay indicating that NMS employee and lead toxicologist on this file, Dr.

Sherri Kacinko, signed out the file containing the toxicology in the John James Sr. death investigation from the secure offices of NMS. I do not know with certainty when the file was returned to NMS offices and if it was ‘edited’ while outside the custody of NMS . [Emphasis added] [ 66 ] This paragraph contains entirely speculative innuendoes as to the possibility that Dr. Kacinko may have ‘edited’ the file which she allegedly signed out. Para 13 : . . .

I have only been provided with 1,154 pages and a document of sworn authenticity to 1,154 pages which I now know was falsely sworn by NMS Labs . [Emphasis added] [ 67 ] Mr. Shanks indicates in his Affidavit that he was provided with internal NMS emails which discuss editing the Litigation File. This court understands that the “Litigation File” is NMS’ internal file relating to its work in analysing specimens taken from the remains of the late Mr.

Layes. [ 68 ] The internal NMS emails show that there was “editing” of the contents of the file and that at one point in time the file consisted of 1692 pages. [ 69 ] Kevin Shanks assumes that the editing of the file resulted in the removal of important information and constituted substantive edits, rather than edits to remove duplicitous material. By the time Kevin Shanks swore his affidavit, counsel for NMS had advised Mr. Layes’ then counsel that duplicitous material was likely removed or edited from the Litigation File.

Yet, Kevin Shanks does not refer to that possibility in his Affidavit (assuming he knew about it) and chose instead to state that NMS falsely swore a document of

authenticity. Para 14 : In conclusion I have reviewed the ‘edited’ file (containing 1, 154 pages) for the toxicology on James Layes Sr. and not the entire toxicology contents . . . which is at least 1,692 pages. The sworn Authenticity document and the contents it swears as produced on May 10, 2016 is clearly false . Para 15 : Toxicology labs are secure facilities that must maintain accurate chain of custody documentation whenever it involves a forensic death investigation.

The news that at least 538 additional pages were removed from the toxicology file prior to production raises very serious concerns as to the reliability of any purported toxicology results reported by NMS Labs in their toxicology report of April 29, 2014 and their subsequent report dated October 22, 2014. … [Emphasis added] [ 70 ] The underlined portions of paragraphs 14 and 15 are argumentative, and are not cast in a neutral manner, and imply that NMS Lab’s wrongfully “removed” portions of the file so that its results were merely “purported” and therefore of questionable reliability. [ 71 ] All of this evidence tracks the Plaintiffs’ theory that NMS Labs wrongfully failed to produce portions of its file – and again, in the face of an explanation from its counsel which could provide an answer to the Plaintiffs’ concerns.

Para 16 : I also have concerns as a professional criminal senior toxicologist with utilization of these Reports by a pathologist as evidence in a legal autopsy or cause of death declaration, because of the reliance on them to establish a cause of death. [ 72 ] Since Kevin Shanks is not a pathologist, he is outside the scope of any expertise he has to comment on what a pathologist might or might not rely upon to establish a cause of death.

Further, Kevin Shanks is repeating in this paragraph conclusions he has made about the unreliability of the Reports of NMS Labs based on the supposed “removal” of pages of the Litigation File and his conclusion that NMS falsely swore a Declaration of Authenticity, conclusions which align with the Plaintiff’s theory, and bring into serious question his role as an unbiased expert.

Para 23 : I am informed by the Plaintiffs , Kevin Layes and Carmen Blinn, and do verily believe …. [ 73 ] Kevin Shanks repeats in para. 23 what he was told by Kevin Layes and Carmen Blinn as to their acquisition of a lock of hair from the late John James Layes, Sr. shortly after Mr. Layes’ death on January 18, 2014. [ 74 ] Kevin Shanks recounts details of the hair’s supposed retrieval and handling by the Plaintiffs, including that Kevin Layes personally handed it, in a sealed bag, to toxicologist Dr.

Vincent Cirimele, at ChemTox Laboratories in Strasbourg, France, for testing. [ 75 ] Kevin Shanks has made a credibility assessment of the Plaintiffs. He does not state, as he could have, that he had been advised by the Plaintiffs of these matters but had no way to independently verify their accuracy. He could have said, but did not, that he assumed these matters to be true, and his opinion was based on those yet to be proven factual assumptions.

The content of this paragraph also constitutes impermissible oath-helping for Kevin Layes and Carmen Blinn. [ 76 ] The content of para. 23 raises very serious concerns that Kevin Shanks is not an independent, unbiased expert, providing an opinion for the benefit of the Court. Para 25(b) : I also observed evidence that NMS Labs arbitrarily reduced the (20x) multiplying factor to a multiplying factor of (4x). Para 25(c) : Also, of great concern was the arbitrary cancellation of key drug classes often associated with the types of poisonings in issue in this case.

Para 25(c)(i) : The decision to cancel the testing and not to look for the most critical drugs associated with chronic drug poisoning is unjustified in any toxicological death investigation. This gives rise to serious concerns regarding the intent of the testing to begin with . [Emphasis added] [ 77 ] A purported expert who questions the “intent” of a party to the litigation steps directly into the role of an advocate. Kevin Shanks is casting doubt on the bona fides of NMS Labs’ work, implying it had a motive to complete the work in other than a professional manner.

His use of the term “arbitrary” is also argumentative and is a conclusion without a factual foundation. Para 25(c)(iii) : ... Dr. Bowes informed police, the Plaintiffs and the Plaintiffs’ attorneys at a meeting held June 17, 2014, that the most comprehensive testing available was performed and “no expense was spared.” This raises very serious concerns on the intent to disclose the truth by Dr. Bowes, given the cancellations of testing revealed by the NMS documentation . [Emphasis added] [ 78 ] Kevin Shanks is calling into question Dr.

Bowes’ disclosure “of the truth.” He refers to “the cancellation of testing”, rather than Dr. Bowes’ decision to conduct certain testing. This paragraph contains scandalous content, i.e. Dr. Bowes’ supposed lack of intent to disclose “the truth.” It is argumentative and not the type of statements expected of a neutral expert.

Para 25(e) : The fact that NMS Labs destroyed original, unadulterated and unused large quantities of liver and spleen specimens as well as original vitreous fluid specimen in a contentious legal matter involving accusations of homicide by poisoning, which then fully knew about since at least August 2014 is simply wrong .

[Emphasis added] [ 79 ] This paragraph is argumentative and obtains opinion outside of Kevin Shanks’ expertise. It also contains conclusory statements without a factual foundation. Para 25(f)(i) : Evidence does show in the phone notes of NMS Labs that NMS Labs toxicologists were informed in August 2014 of allegations of poisoning in this case; and, that independent second lab testing of hair did suggest possible homicide. [ 80 ] This paragraph is argumentative. Kevin Shanks lacks the expertise to opine on or interpret a “possible homicide”.

Para 25(f)(iv ): The destruction of these specimens means the destruction of the most critical evidence in a reported poisoning and allege homicide. This is simply unacceptable, to me and the professionals I work with in the industry. [Emphasis added] [ 81 ] Kevin Shanks lacks the necessary expertise to comment on what constitutes the most critical evidence in a homicide investigation. Further, his statement that “this is simply unacceptable” is argumentative. Nor can he comment on what is unacceptable for anyone, other than himself.

Para 25(g) : … Rather, both reports [of NMS] falsely suggest that full and complete testing was conducted on all known drugs contained in the entire NMS Labs drug library… [Emphasis added] [ 82 ] The reference to the NMS Reports as “falsely stating” is argumentative and scandalous. Para 27 (1 st sentence) : Given that the uncontested evidence shows… [ 83 ] This statement reads like a submission or plea. It also contains no factual foundation for this statement.

Para 27 (2 nd sentence) : Actions by NMS Labs do suggest alterations and deletions affected both of their released toxicology reports. [ 84 ] The second sentence in paragraph 27 is argumentative and provides statements of conclusion and belief that lack a factual foundation. Para 29 : If I were in NMS Labs’ position in August 2014 and prior to the testing NMS conducted in September and October 2014, I would have… [ 85 ] Paragraph 29 (a) – (

f) outline what Kevin Shanks supposedly would have done. The content of paragraph 29 is entirely speculative and argumentative. Para 30 : Based on my experience of standard toxicology practice and the review of the evidence, in my opinion, it is likely that NMS Labs destroyed the John James Layes Sr. specimens in its custody on instruction from Dr. Bowes to do so. [ 86 ] This paragraph not only contains speculative assumptions but it is also scandalous in the sense that it clearly implies wrongdoing on the part of Dr. Bowes.

Para 31 : I have been provided with a transcript of a meeting held at the offices of NMS Labs on March 23, 2016, attended by Dr. Middleberg, Dr. Laura Labay, Kevin Layes and Carmen Blinn, which is attached as Exhibit J. This transcript also supports this notion in that NMS officials confirm ‘they do as the client requests’. [ 87 ] This Court notes that the transcript referred to in paragraph 31 is the subject of NMS’ allegation that the Plaintiffs breached a Pennsylvania statute by illegally recording the noted conversation (as set out at para. 24 of NMS’ Amended Statement of Counterclaim).

The legality of this recording is an issue in this proceeding. [ 88 ] Further, this Court’s review of the transcript shows that it is rife with scandalous material, hearsay and inadmissible lay opinion. [ 89 ] Further, para. 31 is oath-relying for the Plaintiffs. Para 32 : In my professional opinion, there are serious questions as to the accuracy of the NMS Labs toxicology reports in this case; and the accuracy questions could have been resolved by toxicology analysis of the specimens NMS Labs destroyed. [ 90 ] This paragraph is argumentative and speculative.

Para 33 : It is my opinion that the Chemtox Labs criminal forensic toxicology report does demonstrate the presence of xenobiotics, like ketamine were in the body of the deceased and it demonstrates a possible serious chronic intoxication concern. [Emphasis that of Kevin Shanks] [ 91 ] Kevin Shanks sets out no facts in this paragraph to support his assertion that there is “a serious chronic intoxication concern.” Nor does Kevin Shanks state what he reviewed or considered in coming to this opinion.

Para 34 : It is therefore my professional opinion that new specimens need to be taken forthwith, as each passing day adds to the destruction of that evidence in the possible chronic poisoning homicide and concealment of the truth in the death investigation of John

James, Sr. [ 92 ] Kevin Shanks’ reference to the investigation of “possible chronic poisoning homicide” and the “concealment of the truth” is scandalous and is in the nature of a submission or plea. Para 35 : The new specimens obtained need to be preserved and analyzed at a credible third party, legally certified, criminal forensic lab across all matrices. [ 93 ] This paragraph is argumentative and purports to opine on matters outside of Kevin Shanks’ expertise.

Nor does Kevin Shanks advise, assuming he has the expertise to do so, why new specimens need to be preserved and analysed, what analysis he is suggesting or what additional information might be gained from further analysis. Para 36 : It is also my professional opinion that time is of the essence and it must be done soon as physically possible to ensure the most accurate toxicological results are obtained. [ 94 ] This paragraph is vague and unhelpful to this Court.

Kevin Shanks does not refer to the effects, if any, on the passage of time that has already occurred, the likely results of further testing or the ability of a toxicologist to analyze the results of further testing. [ 95 ] The Plaintiffs argue that Kevin Shanks is a highly qualified forensic toxicologist who is “an expert on both the forensic toxicology side as well as the overall effect that the passage of time has on the spoliation of drug metabolites in all the various matrices capable of being examined in a criminal forensic toxicology lab”. The Plaintiffs say that Mr.

Shanks has provided evidence that demonstrates clear and obvious issues with NMS’s toxicology file. [ 96 ] The Plaintiffs point to what they say are Mr. Shanks’ detailed analyses of NMS’s use of allegedly over-diluted samples. [ 97 ] The fact, or not, that Mr. Shanks’ analysis may be detailed, or that he is qualified to provide expert evidence as a forensic toxicologist does not, in and of itself, overcome the many difficulties with Mr. Shanks’ evidence, as detailed above. Neither, as was often repeated by Mr. Layes in his oral submissions, can the difficulties found by this Court in Mr.

Shanks’ Affidavit be dealt with in cross-examination or be a matter of ultimate weight. These matters, rather, affect threshold admissibility. Conclusion with respect to Kevin Shanks’ Affidavit [ 98 ] The Affidavit of Kevin Shanks is struck in its entirety, together with each Exhibit to his Affidavit. Kevin Shanks has shown that he is not an independent expert. Rather, his Affidavit displays bias in favour of the Plaintiffs akin to that of an advocate. I find that Mr. Shanks is not an independent expert.

As such, his Affidavit does not meet the first step of the White Burgess admissibility framework and is struck in its entirety. The Affidavit of Dr. Vincent Cirimele sworn March 5, 2020 [ 99 ] Dr. Cirimele is the Chief Executive Officer of Laboratoire ChemTox at Illkirch, France. [ 100 ] Dr. Cirimele states in his Affidavit that he has been accepted as an expert in toxicology by the Cour de Cassation , which he says is the highest court of review in France and by the Court of Appeal of Colmar, in Alsace, France. [ 101 ] Dr.

Cirimele states that he is certified as a toxicologist by Eurotox, the federation of national societies of toxicology in Europe. [ 102 ] Dr. Cirimele states in his Affidavit that Laboratoire ChemTox possesses ISO17025 (version 2017), which he says is an international quality standard which monitors the major principles of quality management while integrating the specificities of criminal forensic toxicology. Dr. Cirimele says that Laboratoire ChemTox “adheres to the principles and requirements of this standard at all times.” [ 103 ] Dr. Cirimele attaches a copy of his curriculum vitae to his Affidavit.

He states that he has particular expertise in the testing of forensic hair specimens in criminal toxicology and is a board member of the Society of Hair Testing, which he describes as an international learned society based in Strasbourg, France. [ 104 ] The Defendants say in general, that Dr.

Cirimele’s Affidavit does not provide any of the required Rule 55 declarations, does not include a statement of his qualifications and does not list documents or material he reviewed and relied upon in formulating his opinion. [ 105 ] Given this Court’s prior ruling that the procedural aspects of Rule 55 do not apply to expert evidence on the exhumation motion, Dr. Cirimele was not required, in his Affidavit, to set forth the Rule 55 “attestations”. His evidence, however, may only be admitted if it complies with the White Burgess framework. [ 106 ] In addition, the Defendants say that Dr.

Cirimele’s Affidavit contains improper, and unsourced hearsay: Para 22 : I was informed by Mr. Layes and do believe that they both suspected homicide by chronic poisoning through the administration of some type of ‘white powder’ that Mr. Layes’ father claimed made him stupefied. [ 107 ] The evidence in paragraph 22 is irrelevant to the motion seeking exhumation and testing. The fact that Kevin Layes and Carmen Blinn suspect homicide is irrelevant to the issues before the Court on the exhumation motion. Further, this paragraph contains double hearsay – from John James Layes, through Kevin Layes, to Dr.

Cirimele. [ 108 ] Paragraph 22 is struck in its entirety. Para 24: On July 28, 2014, I viewed a video that Mr. Layes showed me, which showed an elderly man who was displaying symptoms that resemble the known effects of certain drugs. Mr. Layes informed me, and I do verily believe him that the video showed John James

Layes Senior on December 9, 2013. [ 109 ] I find that there are several concerns with the content of paragraph 24. Dr. Cirimele does not indicate what symptoms he observed or the identify of the “certain drugs” he references. Further, interpreting medical symptoms is beyond Dr. Cirimele’s stated qualifications. [ 110 ] Paragraph 24 is struck in its entirety. Para 32(d)(v) : Ketamine is used illegally as a recreational drug for its sedative and hallucinogenic effects.

It is often referred to as the date rape drug “Special-K” because it will both incapacitate and cause amnesia in the victim. [ 111 ] I find that it is outside the scope of Dr. Cirimele’s expertise to opine on the medical use and illegal use of ketamine in Nova Scotia. [ 112 ] I also find that the medical use of Quetiapine, Citalopram, Haloperidol, Ketamine, Diphenhydramine and Zopiclone, as opined on by Dr. Cirimele at paragraph 32 are also outside the scope of Dr. Cirimele’s stated expertise. [ 113 ] Paragraph 32 is struck in its entirety.

Para 36 – fifth sentence : These levels of Ketamine are not something I would expect to find in a 79-year old man with grey to white hair and being declared as confined to hospital for the entire 3-month period before death. [ 114 ] This statement is vague and unhelpful to the Court. Dr. Cirimele does not indicate the basis upon which he concludes that John James Layes was confined to bed for the entire 3-month period before his death. Nor does Dr.

Cirimele indicate what levels of Ketamine he would “expect to find”. [ 115 ] The Plaintiffs advised this Court that they did not object to the removal of this sentence (5 th ) in para. 36. [ 116 ] The 5 th sentence in paragraph 36 is struck. Para 39 : In November 2015, Mr. Layes contacted me to determine if we had retained any hair specimen from the original testing conducted in July 2014. Upon my confirmation, Mr. Layes then informed me that Dr. Bowes, the Chief Medical Examiner of Nova Scotia, was claiming exogenous contact as the source of the drugs found in the hair analysis results of July 31, 2014.

He further informed me that Dr. Bowes was ignoring the evidence-based medicine which I had already provided proving the found drugs had been within the body of the decedent . [Emphasis added] [ 117 ] This paragraph contains improper, double hearsay, without a statement of belief in the source. Further, the reference to Dr. Bowes “ignoring the evidence-based medicine” is scandalous and/or vexatious. [ 118 ] Paragraph 39 is struck, with the exception of the first sentence.

Para 40 : In response, I was doubtful about the amount of ketamine measured in the hair of a 79-year-old man with grey to white hair and being declared as confined to hospital for the entire 3-month period before death. [ 119 ] Paragraph 40 is also problematic. It is outside the scope of Dr. Cirimele’s expertise to comment on Dr. Bowes supposed “theory”; nor does Dr. Cirimele provide a factual foundation as to Dr. Bowes’ “theory”. The reference to the late Mr.

Layes being “declared” as confined to hospital for the entire three-month period before death is improper, unsourced hearsay. [ 120 ] Paragraph 40 is struck. Para 51: These Norketamine findings contradict the theory that the Exhibit “D” results were caused by exogenous contamination and rule out exogenous contact as a probable reason for the drug being present in the hair strands.

The other segmental hair drug results reported in my July 31, 2014 forensic toxicology report as Exhibit “D” are also in favour/suggest John James Layes Sr. exposure to these drugs over the approximate three-month period before death. [Emphasis added] [ 121 ] Dr. Cirimele provides no factual foundation in this paragraph with respect to the “theory”. [ 122 ] The first sentence of paragraph 51 is struck.

Para 52 : Given the results found in the limited hair specimens tested in this case, it is my opinion that additional specimens obtained by exhumation of the deceased would be helpful to perform a more thorough and complete forensic criminal toxicology on various biological specimens including hair in order to investigate the cause of death. [ 123 ] The contents of paragraph 52 are vague. Dr.

Cirimele does not state why the prior results justify a more thorough forensic criminal toxicology, why further investigation into the cause of death is warranted, or what specific further testing he contemplates. [ 124 ] Paragraph 52 is struck. [ 125 ] In their brief on this motion, the Plaintiffs say that Dr. Cirimele “is the top forensic criminal hair segmentation toxicologists (sic) in the world”.

[ 126 ] The Plaintiffs say that Dr. Cirimele’s detection of metabolites of the drug, Ketamine, in his analysis of the hair sample that the Plaintiffs say they took from John James Layes around the time of his death is “irrefutable” evidence that Ketamine was administered to the deceased, but not medically prescribed to him. [ 127 ] None of those arguments overcome the difficulties with Dr. Cirimele’s evidence as detailed above. Neither, as was often repeated by Mr. Layes in his oral submissions, can the difficulties found by this Court in Dr.

Cirimele’s Affidavit be dealt with in cross- examination or be a matter of ultimate weight. [ 128 ] However, at the gatekeeping stage of the White Burgess framework, I find that the benefits of admitting the evidence of Dr. Cirimele outweigh any costs. Dr. Cirimele has expertise which could be of benefit to this Court on the exhumation motion. [ 129 ] The costs of admitting Dr. Cirimele’s evidence are minimal and do not outweigh the benefits of the Court receiving his evidence on areas which the Court lacks knowledge. The Defendants will have the opportunity to cross-examine Dr.

Cirimele to help safeguard the reliability of the evidence and may choose to call their own expert on the issues addressed by Dr. Cirimele. Conclusion with respect to the Admissibility of Dr. Cirimele’s Affidavit [ 130 ] I do not find that Dr. Cirimele’s proposed evidence is biased. He has the necessary qualifications to give expert evidence. His evidence meets the threshold requirements of relevance and necessity. The benefits of receiving his evidence, outweigh the risks. [ 131 ] However, the paragraphs referred to above are struck. The Plaintiffs are free, if they wish, to file an amended Affidavit of Dr.

Cirimele by a date to be set by this Court. This is without prejudice to any Defendant’s ability to challenge any amended Affidavit of Dr. Cirimele. In addition, any revised Affidavit of Dr. Cirimele must provide the scope of his proposed qualification. Further, it must be clear in any revised Affidavit of Dr. Cirimele, or through his evidence on the exhumation motion, that he understands that his primary duty is to provide fair, unbiased evidence for the benefit of the Court and that he is aware of that duty and willing to fulfil it. The Affidavit of Dr. Michele S. Slone sworn September 18, 2020 [ 132 ] Dr.

Slone is a medical doctor and is board certified in Anatomic Pathology and Forensic Pathology by the American Board of Pathology. [ 133 ] Dr. Slone is presently employed as Deputy Chief Medical Examiner for the City of New York. Dr. Slone is also a Clinical Assistant Professor in the Department of Forensic Medicine at the New York University School of Medicine. [ 134 ] Dr. Slone states in her Affidavit that she provides private consulting services that include expert witness services. Dr.

Slone states that she prepared her Affidavit in her capacity as a private consultant retained by the Plaintiffs to provide expert witness services. [ 135 ] Dr. Slone states in her Affidavit that she understands that as an expert witness, although she is retained by a party, her primary responsibility is to the court to provide expert evidence that will assist the court in the adjudication of the dispute in which her evidence is presented. [ 136 ] Dr. Slone states that she is able and willing to testify and otherwise discharge her responsibility to the court as the court directs. Dr.

Slone also states that the evidence contained in her Affidavit is her independent and impartial professional opinion. [ 137 ] The Defendants each object to para. 8 of Dr. Slone’s Affidavit which provides: Para 8 : I have also reviewed pharmaceutical records, medical records and photographs of the late Mr. Layes. [ 138 ] The Defendants say that this paragraph is too vague to be helpful to the court, in that it does not advise precisely what records (medical and pharmaceutical) that Dr.

Slone reviewed or what photographs she observed. [ 139 ] The Defendants are entitled to know the factual foundation for an expert’s opinion. This includes the materials the expert reviewed in coming to their opinion. Foundational documents include retainer letters, although this does not include documents covered by solicitor-client privilege. [ 140 ] Paragraph 8 is struck. Para 9 : In addition I have consulted with Dr. Gail A.A.

Cooper, the Director of Forensic Toxicology at the office of the Chief Medical Examiner in New York City, with respect to the toxicology reports and toxicology issues in this case. [ 141 ] The Defendants say that no detail is provided in this paragraph as to when the consultation occurred or the nature of the consultation. This Court agrees – those details should have been provided. Further, this paragraph raises the question of whether the opinions expressed in this Affidavit are solely those of Dr. Slone or whether Dr. Cooper’s opinions are incorporated into Dr.

Slone’s opinions. [ 142 ] Paragraph 9 is struck. [ 143 ] In paragraph 10 of her Affidavit, Dr. Slone states that she has reviewed the affidavit of Dr. Gail Cooper filed in this proceeding and that Dr. Cooper’s Affidavit is “consistent with our consultations in formulating my opinions.” Dr. Slone goes on to state that she has considered various statements made by Dr. Cooper in her Affidavit. [ 144 ] It is noted that Dr. Slone says she considered paragraph 10(

a) of Dr. Cooper’s Affidavit, but in fact Dr. Cooper’s affidavit does not contain a paragraph 10(a).

[ 145 ] In my view the content of paragraph 10 of Dr. Slone’s Affidavit is primarily oath-helping for Dr. Cooper and is inadmissible on that basis. [ 146 ] Paragraph 10 is struck. Para 11(a) : In my opinion in light of the toxicology findings by NMS and ChemTox in this case, there is a need for further toxicology testing before there is sufficient evidence to determine the cause of death of John James Layes. [ 147 ] I agree with the Defendants’ counsel that Dr. Slone doesn’t indicate in paragraph 11(

a) or elsewhere in her Affidavit why there is a need for further toxicology testing to determine the cause of death, the nature of such testing, and why that testing could yield evidence “sufficient” to determine the cause of death. [ 148 ] Paragraph 11(

a) is struck. Para 11(b) : I do not believe that there is sufficient information to support the statement in paragraph 11(

b) of Dr. Bowes’ affidavit…that: “The autopsy revealed the deceased did not die from being poisoned”. In my opinion, until further toxicology testing is carried out, the cause of death remains undetermined. [ 149 ] I find that paragraph 11(

b) lacks a factual foundation as to why there is not enough information to support Dr. Bowes’ opinion and why Dr. Cooper states that the cause of death remains undetermined. [ 150 ] Paragraph 11(

b) is struck. Para 11(c) : Because specimens from the original autopsy are no longer available, in my opinion, exhumation of the body is required to obtain the further evidence necessary to determine a cause of death. [ 151 ] Dr. Slone does not state in paragraph 11(

c) the basis for her statement that exhumation of the body “is required” in order to obtain “further evidence” necessary to determine a cause of death. She does not state what further testing she anticipates will determine the cause of death. [ 152 ] Paragraph 11(

c) is struck. Para 11(d)(iii) : The extent of deterioration of the body cannot be determined until it is exhumed, however based on my experience in examination of exhumed bodies, it is my opinion that this case forensically valuable specimens including hair, nails and to some extent organs and bodily fluids should still be retrievable, particularly where the body is embalmed and buried in a cold climate where the ground is frozen for part of the year.

On testing, such specimens could be expected to yield new toxicology findings that would assist in resolving the uncertainties remaining after reviewing the NMS and ChemTox toxicology reports . [ 153 ] This Court finds that Dr. Slone’s statement that “on testing, such specimens could be expected to yield new toxicological findings that would assist in resolving the uncertainties remaining after reviewing the NMS and ChemTox toxicology reports” is too vague to be helpful to this Court. Dr. Slone does not say why she expects specimens to reveal new toxicological specimens.

Nor does she say what “uncertainties” remain after her review of the NMS and ChemTox toxicology reports. [ 154 ] The last sentence of paragraph 11(d)(iii) is struck. Para 11(d)(v) : Depending on the condition of the exhumed body and any necessary legal authorizations, it should also be possible to perform a second autopsy if desired . Such an autopsy could yield other valuable information that would supplement the toxicology in determining whether or not this is a case of homicide. For example, the material I examined indicated that there was a suspicion that Mr.

Layes cervical spine (neck) had been injured during an “attack” on December 9, 2013 in which he claimed to have been fed drugs . If the body were exhumed, the cervical spine would still be intact and with the assistance of a forensic anthropologist it could yield valuable evidence to assist in determining if there was a fracture. [ Emphasis added] [ 155 ] This paragraph contains improper, unsourced hearsay. Dr. Cooper does not state the basis of her statement that there was suspicion that Mr. Layes’ cervical spine (neck) had been injured during an “attack” on December 9, 2013 or her statement that Mr.

Layes “claimed to have been fed drugs.” [ 156 ] Further, Dr. Slone does not indicate whether a second autopsy is warranted, only that “if desired” it should be possible to perform, depending on the condition of the exhumed body. Nor does Dr. Slone indicate in this paragraph or elsewhere in her Affidavit what “valuable information” might “supplement the toxicology” if a second autopsy was performed. [ 157 ] The entirety of paragraph 11(d)(

v) is struck with exception of the first sentence. [ 158 ] The Plaintiffs say that Dr. Slone is a highly qualified expert. They say that Dr. Slone, along with Dr. Gail Cooper: …are two of the world’s top rated experts in their chosen field, far surpassing anyone previously involved in any court matter involving a death in Nova Scotia .

They are in the position they are in as world renown experts because they know what they are doing and how it has to be done in order to reach a correct decision on a cause of death for all deaths, not just those which are obvious. [Emphasis added] [ 159 ] The Plaintiffs say that Dr. Slone rightly sought input from Dr. Gail Cooper, the Director of Toxicology in the office of the New

York City Medical Examiner and that such collaboration is what one would expect in a case “involving chronic poisoning causing death”. [ 160 ] The objection raised by the Defendants with respect to this collaboration between Dr. Slone and Dr. Cooper is not that it happened, but that the Affidavit of each does not provide details of the nature of the collaboration and make it clear what is their sole opinion and what is the opinion they may have obtained from each other. [ 161 ] At the gatekeeping stage of the White Burgess framework, I find that the benefits of admitting the evidence of Dr.

Slone outweigh any costs. The Court will potentially benefit from her expert evidence on matters outside the scope of its knowledge. [ 162 ] The costs of admitting Dr. Slone’s evidence are minimal. The Defendants will have the opportunity to cross examine Dr. Slone to help safeguard the reliability of the evidence and may choose to call their own expert on the issues addressed by Dr. Slone. Conclusion with respect to the Admissibility of Dr. Slone’s Affidavit [ 163 ] I do not find that Dr. Slone’s proposed evidence is biased. She has the necessary qualifications to give expert evidence.

Her Affidavit evidence meets the minimum threshold requirements of relevance and necessity. However, the above-noted paragraphs are struck from her Affidavit for the reasons given. [ 164 ] The Plaintiffs are free, if they wish, to file an amended Affidavit of Dr. Slone by a date to be set by this Court. This is without prejudice to any Defendant’s ability to challenge any amended Affidavit of Dr. Slone. [ 165 ] Any revised or new Affidavit of Dr. Slone must provide the scope of her proposed qualification. The Affidavit of Dr. Gail Audrey Ann Cooper, sworn September 18, 2020 [ 166 ] Dr.

Cooper states that she has been working in the field of forensic toxicology for 20 years and that as a Consultant Forensic Toxicologist she has been regularly called upon as an expert witness. [ 167 ] Dr. Cooper states that she is a board member and past-secretary of the Society of Hair Testing and a founding and past-secretary of the UK and Ireland Association of Forensic Toxicologists. [ 168 ] Dr. Cooper is currently Director of Forensic Toxicology at the office of the Chief Medical Examiner in New York City and holds New York State Certification in alcohol analysis of blood and urine. [ 169 ] Dr.

Cooper states that her areas of expertise range from post-mortem forensic toxicology to “alternative matrix” testing and quality assurance. [ 170 ] Each of the Defendants object to the content of para. 7(

e) of Dr. Cooper’s Affidavit, which provides: Para 7 : I have reviewed the following information: … (

e) pharmaceutical records, photographs and videos of the late Mr. Layes. [ 171 ] The objections are based on the vague content of this paragraph. Dr. Cooper does not identify what medical and pharmaceutical records she reviewed. Nor does Dr. Cooper provide any details concerning what photographs or videos she observed. [ 172 ] Paragraph 7(

e) is struck. Para 8 : In addition, I have consulted with Dr. Michele Slone in her capacity as an expert witness/consultant for the plaintiffs in this matter. I consulted Dr. Slone with respect to the pathology issues in this case. Dr. Slone is the Deputy Chief Medical Examiner for the City of New York. [ 173 ] I agree with counsel for the AGNS and Dr. Bowes that the contents of paragraph 8 concerning Dr. Cooper’s “consultation” with Dr. Slone are overly vague. Dr. Cooper does not describe the nature of this consultation nor whether she and Dr. Slone exchanged correspondence or emails as part of the consultation.

This paragraph also raises the issue of whether Dr. Cooper’s opinions are solely hers or are mixed with those of Dr. Slone. [ 174 ] Paragraph 8 is struck. Para 9(a) : Based on the foregoing I can say the following – there is, at a minimum, a genuine scientific question as to whether the NMS reports of April 29, 2014 and October 22, 2014…include all of the pharmaceuticals that were present in the matrices covered by those reports. [ 175 ] I agree with the Defendants that Dr. Cooper does not state any facts to base her assertion that there is “a genuine scientific question”.

Further, there is no account that is sufficiently detailed to ascertain what Dr. Cooper reviewed or considered in formulating this opinion. [ 176 ] Paragraph 9(

a) is struck. Para 9(b) : Because the limitations of these NMS reports are not clearly set out in the records there is a risk that a medical examiner relying on those records would draw incorrect conclusions about the extent to which these reports can assist in determining whether the administration of pharmaceuticals caused the deceased’s death. [ 177 ] This paragraph offers an opinion about the reliability of the medical examiner’s conclusions, which is outside of the scope of Dr. Cooper’s expertise. Further, Dr. Cooper’s statement that “there is a risk” is vague because Dr. Cooper does not say whether the risk is minimal or substantial or somewhere in between.

[ 178 ] Paragraph 9(

b) is struck. Para 9(c) : I have no concerns with the accuracy of the ChemTox Laboratories reports dated July 31, 2014 and November 17, 2015 … with respect to the hair specimen tested. [ 179 ] The contents of paragraph 9(

c) is entirely oath-helping for Dr. Cirimele of ChemTox Laboratories. [ 180 ] Paragraph 9(

c) is struck. Para 9(i) : The results obtained by ChemTox on the hair specimen that it tested are not consistent with the medications prescribed to the late John James Layes and merit further investigation. [ 181 ] The contents of this paragraph are too vague to be helpful to this Court. Dr. Cooper does not list the medications prescribed to John James Layes. As noted earlier in this decision, Dr. Cooper does not provide in her Affidavit a list of what medical and pharmaceutical records she reviewed in coming to her conclusions. Further, Dr.

Cooper does not state what results obtained by ChemTox are inconsistent with the medications prescribed to John James Layes. In addition, Dr Cooper provides no factual foundation for her statement that “further investigation” may be required. [ 182 ] Paragraph 9(

i) is struck. Para 9(j) : In addition, new specimens would permit a more detailed toxicology testing than was possible with the limited hair sample available to ChemTox. [ 183 ] Dr. Cooper does not indicate why further, more detailed toxicological testing is warranted. Nor does Dr. Cooper indicate the type of testing proposed or what information she anticipates that such further detailed testing would provide. [ 184 ] Paragraph 9(

j) is struck. Para 9(l) : Drugs that are present in bodily tissue deteriorate over time so that the detectable concentrations decrease. This means that drugs that were in the tissues at the time of death may be detectable in lower concentrations or not at all after sufficient time has passed. To avoid further loss of evidence, an exhumation should be carried out immediately, either to take specimens immediately or to preserve the body and any drugs within it until legal authorization to collect specimens can be obtained. [ 185 ] Dr. Cooper does not indicate why further testing is warranted. Dr.

Cooper does not give a time estimate for the passage of “sufficient time” and so such the second sentence of this paragraph is too vague to be helpful to this Court. [ 186 ] Paragraph 9(

l) is struck, with the exception of the first two sentences. [ 187 ] The Plaintiffs point to Dr. Cooper’s expertise and say that she was retained by the Supreme Court of Ontario to prepare an independent report relating to the Motherisk Lab Hair Analysis review. The Plaintiffs argue that Dr. Cooper outlines in her Affidavit accepted practices and compares those with the toxicology file documents provided by NMS Labs. [ 188 ] None of these arguments overcome the difficulties detailed above concerning the content of various paragraphs of Dr.

Cooper’s Affidavit. [ 189 ] At the gatekeeping stage of the White Burgess framework, I find that the benefits of admitting the evidence of Dr. Cooper outweigh any costs. [ 190 ] The Court can benefit from Dr. Cooper’s evidence on the exhumation motion in areas where the Court lacks knowledge. [ 191 ] The costs of admitting Dr. Cooper’s evidence are minimal. The Defendants will have the opportunity to cross examine Dr. Cooper to help safeguard the reliability of the evidence and may choose to call their own expert on the issues addressed by Dr. Cooper. Conclusion with respect to the Admissibility of Dr.

Cooper’s Affidavit [ 192 ] I do not find that Dr. Cooper’s proposed evidence is biased. She has the necessary qualifications to give expert evidence. Her evidence meets the threshold requirements of relevance and admissibility. [ 193 ] The Plaintiffs are free, should they wish to do so, to file an amended Affidavit of Dr. Cooper by a date to be set by this Court. This is without prejudice to any Defendant’s ability to challenge an amended Affidavit of Dr. Cooper, either in whole or in part. [ 194 ] However, any revised Affidavit of Dr. Cooper must provide the scope of her proposed qualification.

Further it must be clear in any revised Affidavit of Dr. Cooper, or through her evidence on the exhumation motion, that she understands that her primary duty is to provide fair, unbiased evidence for the benefit of the Court and that she is aware of that duty and willing to fulfill it. Experts’ Disclosure of Documents [ 195 ] Each of the Defendants seek production of the following documents from the experts tendered: (

a) Any retainer letter(

s) setting forth the terms of the experts’ retainer by the Plaintiffs; (

b) An itemized list of, or copy of all documents provided to the experts; (

c) An itemized list of, or copy of all documents, journal articles, texts, literature and other authoritative material consulted by the expert to arrive at and prepare their opinions;

(

d) Any letters, emails or text messages between the experts; (

e) Any letters, emails or text messages between the experts and the Plaintiffs prior to September 30, 2020 (when the Plaintiffs gavenotice that they intended to act on their own behalf); (

f) Any notes, handwritten or typed, taken during any meetings or phone calls with the other experts; and (

g) Any notes, handwritten or typed, during any meetings or phone calls with the Plaintiffs prior to September 30, 2020. [196] I have reviewed the following decisions which address whether an expert is required to produce their file at common law: Flinn v.McFarland, 2002 NSSC 272, Greenwood Shopping Plaza Ltd., v. Neil J. Buchanan (No.1)(1979), 31 N.S.R.2(d) 135 (NSCA), Crockerv. MacDonald, [1992] N.S.J. No. 410 (N.S.T.D), Browne (Litigation Guardian of) v. Lavery (2002), (ON SC), 58O.R. (3d) 49 (Ont. S.C.J.), and Moore v.

Getahun, 2015 (ONCA) 55. [197] This Court finds that the weight of authority establishes that an expert may be required to produce foundational documents foreach of the expert reports filed. Materials which show what the expert was asked, what was provided to the expert, and any notes orcorrespondence related to the preparation of their report (not subject to solicitor-client privilege) should be produced. [198] This Court orders that the following documents must be produced by the experts, (Dr. Cirimele, Dr. Slone and Dr. Cooper) by adate to be set by this Court: (

a) Copies of any retainer letter(

s) setting forth, the terms of the expert’s retainer by the Plaintiffs; (

b) Copies of all documents provided to the experts; (

c) An itemized list of all journal articles, texts, literature and other authoritative material consulted by the expert to arrive at and preparetheir opinions. (

d) Copies of any letters, emails or text messages between the experts; (

e) Copies of any letters, emails or text messages between the experts and the Plaintiffs prior to September 30, 2020; (

f) Copies of any notes, handwritten or typed taken during any meetings or phone calls with any other expert; (

g) Copies of any notes, handwritten or typed, taken by the expert during any meetings or phone calls with the Plaintiffs prior toSeptember 30, 2020. [199] I find that these are all documents which must be disclosed to enable the Defendants’ counsel to assess their positions and takeinstructions, including on whether to retain their own experts. It is also necessary to allow this Court, on the hearing of the exhumationmotion, to assess whether the instructions and information provided to the experts may have affected the objectivity and reliability oftheir opinions.

Issue 2: Should the Affidavits of the Lay Witnesses be struck in whole or in part? The Affidavit of Robert H. Pineo Sworn February 26, 2020 [200] The Defendants say that this Affidavit does not comply with Rule 39.02(2)(

b) because Mr. Pineo does not state that the Affidavitcontains only information based on personal knowledge or hearsay with a statement of the source and Mr. Pineo’s believe of theinformation. [201] This Court agrees. Pursuant to Rule 39.08(2), an affidavit must contain the statements provided in Rule 39.08(2). On that basis,the Affidavit of Mr. Pineo is struck in its entirety. [202] Apart from the Affidavit’s lack of conformity to Rule 39.02, there are provisions which are, nonetheless, problematic and wouldhave been struck had the affidavit complied with Rule 39.08(2).

Para 2 – last sentence: The NMS toxicology findings were contradicted by criminal forensic reports dated July 31, 2014 and November17, 2015 by ChemTox Laboratories based on a hair specimen from the deceased. [203] The Court finds that Mr. Pineo’s statement that the NMS toxicological findings were “contradicted” is an argument or a statementof opinion and belief, the latter being outside the scope of Mr. Pineo’s expertise as a lawyer to provide. Para 3: Given these conflicting results, Kevin Layes sought approval of Dr.

Bowes or exhumations of his late father’s body to takespecimens for independent toxicology testing at Mr. Layes’ expense. Dr. Bowes would not grant that permission, so I was instructed toseek relief from the courts. [204] Mr. Pineo in this paragraph offers an opinion on “conflicting results” outside the scope of his expertise as a lawyer. Further, thefact that he received instructions to seek relief from the courts is irrelevant to the issues before the court in the exhumation motion. Para 5: I was then contacted by counsel for the Attorney General of Nova Scotia, Mr.

Michael Pugsley QC, who said that the motion hadcome to his attention and in his view the motion ought to be on notice to the Attorney General. [205] The contents of para. 5 are entirely irrelevant to the issues before the Court on the exhumation motion. Further Mr. Pineo doesnot state his belief in the hearsay statements attributed to Mr. Pugsley.

Para 6 : We had some discussions as to whether the motion would be granted on consent and it initially appeared that that would be the case. Para 7 : Subsequently, after receiving a copy of the pleadings and learning there were allegations against Dr. Bowes in the litigation, Mr. Pugsley said that consent would not be given because the province should not consent to the gathering of evidence “against one of its own”. Para 8 : Mr.

Pugsley did appear to oppose the motion, which was dismissed without consideration of the merits based on issues of notice. [ 206 ] Paragraphs 6-8 contain statements completely irrelevant to the issues on the exhumation motion. Further, they contain hearsay and without prejudice settlement negotiations. [ 207 ] The Affidavit of Robert Pineo sworn February 26, 2020 is struck in its entirety. The Supplemental Affidavit of Robert H.

Pineo sworn September 25, 2020 Para 3 : In 2016 and 2017 I represented Carmen Blinn and Kevin Layes in matters relating to the investigation into the murder of Kevin Layes’ late father John James Layes, Sr., by poison and the subsequent cover-up of that murder. [ 208 ] Mr. Pineo’s reference to the “murder” of John James Layes and the “subsequent cover-up” of that murder are scandalous and vexatious. Further, this paragraph contains no information that is relevant to the issues on the exhumation motion. Paragraph 3 is struck.

Second para 3 : On December 14, 2016 I had an exchange of emails with Department of Justice Senior Solicitor, Mr. Michael Pugsley regarding whether the Attorney General would consent to exhumation of the remains of John James Layes, Sr., to preserve critical evidence in a matter before the court. In this email exchange a true copy of which is attached hereto as Exhibit “A” Mr. Pugsley stated that … [ 209 ] The contents of this paragraph are entirely irrelevant to the issues on the exhumation motion and, on that basis, paragraph 3 (second) is struck. Further, Mr.

Pineo’s reference to the preservation of “critical evidence” is a statement of conclusion and belief and one without factual foundation. Paragraphs 4 – 6 [ 210 ] Paragraphs four and five simply recount communications between Mr. Pugsley and Mr. Pineo, the content of which is irrelevant to the issues on the exhumation motion. On that basis, paragraphs four and five are struck. [ 211 ] Paragraph 6 states that on December 8, 2017 Mr.

Pineo filed a Notice of Application in chambers, seeking an order for exhumation of the remains of John James Layes, Sr., that the AG opposed the application on the basis of lack of notice pursuant to

Section 18 of the Proceedings against the Crown Act . Mr. Pineo states that the application was dismissed for lack of notice, without consideration of the affidavit evidence. [ 212 ] Paragraph 6 is completely irrelevant to the issues on the exhumation motion and is struck. [ 213 ] The Supplementary Affidavit of Mr. Pineo is struck in its entirety.

Affidavit of Kevin Layes sworn February 26, 2020 Para 4 : Because of the circumstances leading up to my father’s death, by the time my father died and since that time I have believed that my father was murdered by poisoning with pharmaceuticals, in particular a substance repeatedly administered in the form of a white powder and this was done to obtain life insurance money. [ 214 ] The basis for the Plaintiff’s motion to exhume the body of the late John James Layes is the allegation that Dr.

Bowes negligently performed the 2014 autopsy and NMS negligently conducted the toxicology analysis. [ 215 ] Accordingly, Kevin Layes’ belief that his father was murdered by poisoning will be irrelevant on that motion. Paragraph four is struck. Paragraph 5 [ 216 ] In paragraph 5 Kevin Layes recounts a series of events concerning his late father from October 13, 2013 to January 18, 2014 when his father died. [ 217 ] In paragraph 5(a), Kevin Layes states that on October 13, 2013 his father was admitted to St. Martha’s Hospital in Antigonish.

Kevin Layes states that his father was “experiencing disorientation and delusions and seemed stupefied”. These references are conclusions which Mr. Layes does not have the expertise to provide. Further, they are irrelevant to the issues on the exhumation motion. [ 218 ] Paragraph 5(

a) is struck. [ 219 ] In paragraph 5(

e) Kevin Layes refers to his father being able to tend to the affairs of his gravel business and eat regularly, stand and walk with assistance by mid-November 2013. All such statements are irrelevant to the issues on the exhumation motion.

[ 220 ] Paragraph 5(

e) is struck. [ 221 ] Paragraphs 5 (g), (h), (j), (k), (m), (n),

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