Evidentiary lessons from the medical malpractice trenches

Cheesman et al v. Credit Valley Hospital et al, 2019 ONSC 4996, the Ontario Supreme Court of Justice provided guidance on some key evidentiary issues: 1) cross-examination of parties who have settled in multi-party litigation, and 2) the admissibility of PowerPoint and other demonstrative aids to facilitate expert testimony.

In this medical malpractice case, the plaintiff, Lorena Cheesman, had been admitted to hospital for treatment of an infection of the inner orbit of her eye. A series of complications ensued, and she left the hospital six months later with both her feet and nine of her fingers amputated. Ms. Cheeseman and her dependents sued her physicians, nurses and the hospital for medical malpractice. The physicians cross-claimed against the nurses, claiming that if there was a breach of the applicable standard of care, liability should be apportioned to the nurses.

A few weeks prior to trial, the plaintiffs settled with the defendant nurses and hospital, but not the physicians. All parties agreed that if the physicians were found liable, liability between the nurses and the physicians would need to be apportioned, notwithstanding the settlement.

Right to cross-examine nurses granted despite settlement

The settlement with the nurses—but not the physicians—raised thorny evidentiary and procedural issues: as a result of the settlement, the nurses would not be appearing at trial unless someone called them as witnesses. However, it was not in the plaintiffs’ interests to call them because this would allow the physicians to cross-examine them, and potentially reduce the proportion the plaintiffs could recovery against the physicians. However, if the physicians called the nurses, then they would be generally limited to examination-in-chief (and not cross-examination). The physicians therefore brought a motion for an order entitling them to cross-examine any of the nurses at trial, regardless of who called them as witnesses.

The motion was successful. The court observed that the jurisprudence has recognized that settlements with some (but not all) defendants, could create procedural unfairness for the non-settling defendants. Techniques to safeguard against such unfairness included the right for non-settling defendants to cross-examine settling defendants. However, to balance the interests of both the physicians and the plaintiffs, the court also extended the right for cross-examination to the plaintiffs. It held that limiting the plaintiffs’ right to examination-in-chief could discourage partial settlements, which is an undesirable result from a policy perspective. Moreover, here the adversity in interest between the plaintiffs and the nurses was obvious, and the plaintiffs “were entitled to use that adversity of interest on discovery to obtain evidence from the nurses that ascribed liability to the physicians.”

The court’s decision in Cheesman represents a flexible approach to trial procedure that puts concerns over procedural fairness front and center in the analysis and recognizes the true relationships between the parties. Here, the Court appreciated that the nature of examination-in-chief would not necessarily reflect the adverse relationships that may lie between co-defendants and between parties that have settled (e.g., there may be difficulty in preparing adverse parties for examination-in-chief, and as a general matter there would be no cross-examination or impeachment of their own witnesses). Recognizing the importance of cross-examination as a key tool in the adversarial process, cross-examination rights were therefore granted to all parties.

Use of demonstrative aids to facilitate expert testimony

A second evidentiary issue that arose in Cheesman was the use of demonstrative aids to facilitate expert testimony. The plaintiffs had proposed to proffer two expert witnesses at trial, Dr. Gill and Dr. Kumar. Both experts intended to use PowerPoint presentations to assist their respective testimonies. Dr. Gill’s presentation was a historical presentation that the plaintiffs argued was relevant to their submissions relating to standard of care. Dr. Kumar’s presentation was prepared for the purposes of his viva voce evidence, to facilitate his testimony. The court excluded both presentations.

Dr. Gill’s presentation was problematic because there was no direct evidence from Dr. Gill in his expert report regarding the date of his PowerPoint presentation. This was important, because the presentation went toward the issue of standard of care, which was limited to what the operative standard of care was in 2007. The Court refused to rely on counsel’s bare submissions on this point alone, especially because the presentation, on its face, post-dated 2007.

The Court similarly found that Dr. Kumar’s PowerPoint presentation was inadmissible, but on different grounds: many of the slides contained information not otherwise found in his expert reports. But even apart from that, the PowerPoint presentation remained inadmissible: at nearly 80 pages, it was unduly long. The Court held that lengthy PowerPoint presentations run the risk of turning the trial “into a false contest between the longest and therefore ‘best’ PowerPoint.” PowerPoints used as a testimonial aid should summarize expert evidence, rather than expanding on it. Their role is to provide a visual framework for a presenter’s testimony, rather than constituting the testimony itself.

The Court observed that PowerPoint presentations and other demonstrative aids have their role in the courtroom where they can facilitate a trier-of-fact’s comprehension by clarifying facts or distilling complex information. It provided helpful guidance on when PowerPoints and other visual aids will be allowed. First and foremost, in the case of experts, the information must be found in the expert’s report, although it may be presented in a visually different manner. At the same time, the presentation should not reproduce or serve as a substitute for an expert report—rather, it should highlight certain points or put complex data into graphic form. In addition, these must be framed as educational—not advocacy—pieces. They must also genuinely assist the Court: here, Dr. Kumar’s slides were excluded in part because of their complexity. While presentations that are in existence at the relevant time (as opposed to put together for the purposes of trial) may be allowed, there must be an evidentiary foundation to establish the date of creation (which was missing in Cheesman). 

Visual aids such as PowerPoints are becoming an increasingly valuable tool in presenting expert testimony. This decision highlights that when used appropriately, they can be welcome additions to the courtroom. However, they do have potential to be abused and if counsel stray too far from appropriate use of visual aids, they run the risk of having them excluded. While every case will be unique, adhering to the Court’s guidance in Cheesman is good practice to ensure PowerPoints are ultimately admitted.

This article was originally published by The Lawyer’s Daily part of the LexisNexis Canada Group Inc.

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