Overview
This recent decision of the Superior Court of Justice may have far-reaching impacts on plaintiffs to substantiate what is typically thought of as “subjective” brain injuries at trial and at the LAT.
At trial, the defendant moved for an order excluding all evidence referring to a brain SPECT scan (“single-photon emission computed tomography”) undergone by the plaintiff in order to detect brain injury. The plaintiff opposed the motion.
Facts
The plaintiff’s claim arose from a motor vehicle collision in which she sustained a traumatic brain injury (TBI) as well as emotional and psychological trauma.
In May 2019, the plaintiff underwent a SPECT brain scan. Dr. Hui-Yin Siow, a specialist in diagnostic radiology and nuclear medicine, rendered a consultation report that interpreted the brain SPECT to conclude that it revealed previous traumatic brain injury.
Neurologist Dr. Sara Mitchell also testified at trial that the use of brain SPECT technology is controversial and there is no consensus in the medical or scientific community that it is an accurate or reliable tool to diagnose brain injury at the individual patient level.
Held
The brain SPECT evidence administered by Dr. Siow was inadmissible as it failed to satisfy the reliable foundation test for novel scientific evidence as set out in R v. J.-L.J:
- Whether the theory or technique can and has been tested;
- Whether the theory or technique has been subject to peer review and publication;
- Whether there is a known or potential rate of error or the existence of standards to test the theory or technique; and
- Whether the theory and technique is generally accepted by the relevant scientific community.
The four factors are not an exhaustive list to determine the admissibility of proposed expert evidence and may not apply to all expert evidence in all cases.
Analysis
Did the brain SPECT evidence constitute “novel science”?
While brain SPECT scans had been used in clinical practice for thirty years, its use in proving that a patient suffered a TBI was novel. Its use in this case was for a novel purpose.
Referring to R. v. Trochym, [2007] 1 S.C.R. 239, Justice Bale opined that while such a tool may have a level of reliability for its use in therapy to yield information about a course of treatment for patients with TBIs, it is not necessarily sufficiently reliable to be used as a forensic tool in a court of law, to prove that a patient has sustained a TBI.
In applying the four factors in J.-L.J., the court provided the following analysis:
Whether the theory or technique can and has been tested:
Dr. Siow conceded his methodology had not been tested but argued that by its nature, it is not susceptible to testing.
Whether the theory or technique has been subject to peer review and publication:
Dr. Siow’s work had not been published nor peer-reviewed. There were no peer-reviewed articles supporting his theory that the brain SPECT can distinguish TBI from depression or anxiety disorders at the individual patient level.
Whether there is a known or potential rate of error or the existence of standards to test the theory or technique:
There were no known or potential rates of error associated with Dr. Siow’s theory or technique. While there may have been standards by which the theory and technique could be tested, it had not been.
Whether the theory and technique is generally accepted by the relevant scientific community:
Widespread acceptance can be an important factor: a known technique that has attracted only minimal support may be viewed with proper skepticism.
The use of SPECT to diagnose TBI was not supported by the academic community as represented by teaching hospitals in the GTA.
The Court also considered a number of Canadian medical publications: the CANM guidelines, which were silent on whether the SPECT could be used to distinguish TBI from anxiety and depression. The Ontario Neurotrauma Foundation did not discuss the use of SPECT scans in their guidelines for diagnosis of concussion and mTBI. Further, a statement proffered by the Radiological Society of North America stated that there was insufficient evidence for the routine clinical use of SPECT for diagnosis of TBI at the individual patient level.
There was no evidence before the court that the use of the SPECT is accepted as a primary diagnostic tool capable of quantifying and following mTBI patients.
Other factors considered by the Court:
Dr. Siow’s credentials, while impressive, were not sufficient alone to overcome the lack of peer review and acceptance of the SPECT to detect TBI in the scientific community.
Justice Bale noted that Dr. Siow’s demonstration at trial was compelling, however, that if proving the reliability of his methodology was easy one would have expected it to have gained widespread acceptance. The effectiveness of such evidence at trial demonstrates why it is necessary that novel scientific evidence meet at least a basic level of reliability.
The case referred to by the plaintiff, Morgan v. Metropolitan Toronto (Municipality) (2006), could be distinguished because it used brain SPECT evidence only to consider the effect of a Hepatitis B vaccination on a plaintiff with chronic fatigue syndrome. While in that case the SPECT evidence was allowed, the issue of novel evidence was not raised nor did the trial judge place any weight on the evidence.
Finally, while there may be less of a concern that novel science evidence will obfuscate the issues in a trial by judge alone, if evidence cannot go reliably before a jury, then it is equally inadmissible in a nonjury trial.
Conclusion
The brain SPECT evidence relied on by the plaintiff to prove she had sustained a TBI in the subject motor vehicle collision was excluded from trial in voir dire.
