Brandon Pedersen was called to the bar in Ontario in 2021 and practices with McLeish Orlando LLP, helping individuals who have suffered a critical injury or lost a loved one due to the negligence of others.
Brandon has successfully argued for his clients at the Ontario Superior Court of Justice, the Ontario Court of Justice, the License Appeal Tribunal, and the Social Security Tribunal.
Brandon is a member of the Ontario Trial Lawyers Association, the Toronto Lawyers Association, the Ontario Bar Association, Canadian Bar Association and the Law Society of Ontario.
This decision arises from a 2019 motor vehicle collision in which the plaintiff alleged that the defendant lost control of his vehicle and crossed over the centre line, colliding with the plaintiff’s vehicle. The plaintiff alleged that she suffered injuries including a concussion, whiplash, other soft tissue injuries, chronic pain and psychological injuries including depression.
This case examines a loss of competitive advantage claim and the test to determine if a question should be put to the jury.
Moran v. Fabrizi arises from a motor vehicle collision that occurred when the defendant, Ottavio Fabrizi, ran a red light and collided with a minivan that the plaintiff was a passenger in. Just before the collision, Fabrizi was the victim of a road rage incident precipitated by the third party, Dennis Chu.
Mohammad did not rebut the presumption of consent and he was held vicariously liable for the damages caused by Vahid’s operation of the rented vehicle
In Wabie, the court was faced with deciding whether the results of a single-photon emission computerized tomography (“SPECT”) scan can be used as a secondary tool to diagnose traumatic brain injury (“TBI”).
Facts
On August 20, 2014, the plaintiff, Elaine Wabie, was involved in a motor vehicle collision when her vehicle was struck from behind while she was stopped. Upon being struck, the plaintiff’s body jerked forward and then backward causing her head to hit the headrest of her car seat.
In 2015, the plaintiff’s family physician, Dr. Thomas Quigg, noted that she was exhibiting classic symptoms of a concussion. Subsequently, Dr. Quigg diagnosed the plaintiff with post-concussion syndrome and ordered that the plaintiff to undergo an MRI. While the results of the MRI were normal, Dr. Quigg noted that the effects of a concussion often take time to present. Nevertheless, Dr. Quigg cleared the plaintiff to return to work.
In 2018, after the plaintiff’s attempt to return to work was unsuccessful, Dr. Quigg ordered that the plaintiff undergo what is known as a SPECT scan. SPECT scans measure blood flow in the brain and look at brain function rather than brain structure, like an MRI or CAT scan. Therefore, SPECT scans can indicate whether a part of the brain is functioning abnormally by depicting how blood flows to organs and tissues and demonstrates the level of blood perfusion in any given area. The results of the plaintiff’s SPECT scan indicated that she was suffering from a TBI, thereby confirming Dr. Quigg’s original diagnosis.
At trial, after the evidence from the SPECT scan was presented to form a part of the evidentiary record, the defendant objected to its use. As a result, the issue before the court was whether the evidence obtained from the SPECT scan should be disregarded as evidence of the plaintiff’s TBI.
Arguments Before the Court
The defendant argued that the evidence obtained from the SPECT scan should be disregarded. The defendant relied on the decision in Meade v Hussein, 2021 ONSC 7850 to form the basis of their argument. Meade was a personal injury case where there was a claim for damages for an alleged TBI from a motor vehicle collision. At the outset of trial in Meade, the defendant moved for an order excluding all the evidence obtained from a SPECT scan administered to the plaintiff. The court found that the use of SPECT scans to prove a patient has suffered a TBI, particularly where it is necessary to differentiate the existence of a TBI from anxiety or depression, was a novel concept. As a result, the court found that SPECT scan evidence is not reliable, especially as it was not presented with any evidence that SPECT scans can be used to distinguish TBIs from anxiety or depression. Ultimately, the court in Meade disregarded the evidence from the SPECT scan in its entirety.
The plaintiff argued that this case is distinguishable from Meade. Specifically, the plaintiff argued that, unlike in Meade, the scan was not used to diagnose the plaintiff with a TBI, but rather was used to support a finding made by Dr. Quigg that she had suffered a TBI. The plaintiff also emphasized that, unlike in Meade, she was not advancing a claim for depression or anxiety.
The Court’s Analysis
The court found that SPECT scans cannot be used as a primary diagnostic tool. Instead, the court concluded that SPECT scans can be used as a secondary diagnostic tool and can be used to support a TBI diagnosis.
The court then looked at the use and purpose of the SPECT scan in this case. The Court noted that in this situation, the SPECT scan evidence was obtained after a TBI diagnosis was made by Dr. Quigg and was used to support Dr. Quigg’s diagnosis. In addition, the Court found that the SPECT scan was not used to distinguish the existence of a TBI from anxiety or depression. The Court therefore accepted the SPECT scan evidence as a secondary diagnostic tool.
Why This Matters
This case clarifies when SPECT scan evidence can be used to demonstrate a plaintiff is suffering from a TBI. Since the court found that SPECT scans are not primary tools for diagnosis, SPECT scan evidence can be used in concert with other medical techniques and observational tools to support a plaintiff’s TBI diagnosis. Finally, it is important to note that SPECT scan evidence is less likely to be admitted when a claim for depression or anxiety has been advanced or is at issue.
An example of inadmissible hearsay used to corroborate physical evidence or independent witness evidence requirements under an OPCF 44R Family Protection Endorsement.
