Lawyer defends editing of expert witness reports before they were submitted as evidence

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      B.C. Supreme Court Justice Mary Ellen Boyd has turned down an unusual application for a court order to revise the exhibits in a convoluted medical malpractice suit.

      The exhibits were filed in a suit launched 13 years ago against Grace Hospital and two doctors by Donella Oliver in connection with the birth of her disabled daughter.

      On June 27, lawyer Dorothy-Jean O’Donnell, who began representing Oliver after the case closed in 1994, asked for an order to ensure that expert medical witnesses’ original written opinions matched photocopied versions entered in court.

      “Some of the exhibits have been shuffled like a deck of cards,” O’Donnell claimed in the hearing, citing medical charts for her client and her client’s daughter being interchanged, and records from a related human-rights case being “spread all over the exhibit files”.

      O’Donnell also claimed there were deletions from expert medical witnesses’ reports.

      Lawyer Andrew Wilkinson, who represented the defendant doctors, said at the hearing that there were only “trivial photocopying glitches” in the exhibit binder.

      He emphasized that the original trial judge, retired B.C. Supreme Court Justice Kenneth Meredith, had already turned down an identical application from O’Donnell to revise the exhibit binder.

      To do so now, Wilkinson claimed at the hearing, would reopen the trial—which he said was beyond Boyd’s authority.

      Wilkinson also claimed that there was an agreement between lawyers on both sides in the original trial to reduce the volume of paper and that Meredith knew about changes to the reports.

      “This is the nature of trial preparation,” Wilkinson said at the hearing. “It is incumbent on counsel to do this for the convenience of the court.”

      In her oral reasons for judgment delivered at the close of the June 27 hearing, Boyd accepted these arguments—even though O’Donnell had alleged there was no evidence of an agreement between lawyers dealing with reducing the volume of paper in individual reports.

      Boyd, however, stated emphatically that all the lawyers involved in the original trial had agreed which documents should be entered as exhibits. Boyd said it was “unrealistic” to expect expert witnesses to approve “every single deletion” from their reports, adding that this can be done by lawyers arguing a case, and, failing that, by a judge.

      “There was an editing process [between lawyers] where each counsel chose what would be presented,” Boyd said. She also said that to reopen the exhibits now to revisions would change the evidence and “fundamentally change the record which existed at trial”.

      Oliver’s daughter, Tarryn, was born in 1982 with cerebral palsy and other handicaps after Oliver’s doctor had failed to diagnose gestational diabetes. Tarryn later became legally blind after developing cataracts.

      Her mother refused to allow surgery—despite a doctor’s recommendation—citing medical texts to support her argument that there was a real risk of her daughter losing all of her remaining vision.

      After both sides had closed their cases before Meredith in 1994, lawyers representing all parties agreed on a $1.25-million structured settlement. They obtained approval for the settlement before a different judge, B.C. Supreme Court Justice Carol Huddart.

      At the time, Donella and Tarryn Oliver were both represented by Lauri Ann Fenlon of Russell and DuMoulin, with Tarryn’s legal case overseen by the public trustee.

      In February 1995, Huddart issued an order that resulted in Tarryn Oliver receiving a settlement valued at approximately $650,000—$350,000 in intermittent lump-sum payments over 40 years, and $2,461 per month indexed at three percent, compounded annually.

      Another $531,213.74 from the settlement went to various law firms to cover legal fees, disbursements, and taxes.

      Huddart’s order placed $50,000 in trust for Donella Oliver, who rejected the settlement offer and declared that she wanted Meredith to issue a decision at trial.

      Another $100,000 was placed in court by the defendants to cover Oliver’s future claim, which was continuing before Meredith, with the difference to go to Tarryn if her mother obtained a smaller award.

      The public trustee falls within the Ministry of Attorney General and looks after the legal and financial interests of people who are incapable of doing it themselves.

      Deputy public trustee June Laker wrote a letter on March 21, 1994, to Fenlon saying she felt that a “premium” to Fenlon’s law firm was warranted, given the complexity of the case and the positive result.

      Russell and DuMoulin filed an affidavit in court saying that the billable hours for handling the case amounted to $226,530.25. Another $104,518.98 was charged as a “premium”.

      The case took a strange twist in March 1995 when Meredith, the original trial judge, wrote a memorandum stating that Fenlon was “in no position to recommend settlement resulting in payment to her firm of premium in fees over cost”. He also wrote he suspected that the settlement was “misconceived”.

      In February 1996, Meredith refused to issue a decision in Oliver’s lawsuit against two doctors and Grace Hospital.

      “I decline to do so or to consider the case further since another judge apparently has taken conduct of the proceedings,” Meredith wrote at the time. “I very much deplore that this conclusion will probably put Mrs. Oliver in an invidious position.”

      Last January 30, B.C. Supreme Court Chief Justice Bryan Williams dismissed Oliver’s motion asking him to order Meredith to issue a decision before he retired the following week.

      Instead, Williams granted Grace Hospital’s motion to appoint another judge to deliver a decision, which resulted in Boyd being assigned to the case.

      Wilkinson had previously filed an argument in court claiming that Oliver has no legal claim for damages arising out of the birth of her disabled daughter.

      “Throughout her evidence, Donella Oliver demonstrated a strong propensity for getting into conflict situations with schools and health care professionals, and then to take the position that it was not her obligation to make the best of her situation in any way,” Wilkinson claimed.

      Prior to the original trial, Tarryn’s case manager, child psychiatrist Brian Harris, had written a seven-page medical report, which included lavish praise of Oliver’s parenting skills. Lawyers involved in the case agreed to delete almost half of Harris’s report, including many positive comments about Oliver, before entering it as an exhibit.

      Harris filed an affidavit before the June 27 hearing saying no one had told him during the original trial about the deletions, which he only learned of after they were pointed out by Oliver.

      “It is my understanding that it is the standard procedure in the field of opinion reports, that if deletions are to be made, they should be initialed by the author of the report, and the original report should be provided to show why the deletions were made,” Harris claimed in his affidavit.

      However, lawyer Don Holubitsky, who represented Grace Hospital at the hearing, said Harris was qualified as an expert in child psychiatry, and if evidence unrelated to this area had been presented, Harris would have faced extensive cross-examination.

      “The Harris excisions were made by Ms. Fenlon after objections by defence counsel,” Holubitsky said.

      At the same hearing, Holubitsky addressed why orthopaedic surgeon Martin Mankey wasn’t called as a witness at the original trial.

      The original notes from a conversation with Mankey had said: “Even without surgery, the optimal physiotherapy schedule for Tarryn is three times a week.”

      White tape had been placed over that sentence when those notes were entered as an exhibit in the original trial. Holubitsky said that Fenlon had agreed to that particular deletion in return for Mankey not having to be cross-examined.

      Final arguments are expected to be made in Oliver’s lawsuit in B.C. Supreme Court on August 27-29.