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Date: David Cheifetz From: Thu, 6 March 2008 11:15 Subject: Causation, Multiple Sclerosis and Trauma
Dear Colleagues Taylor v. Liong, 2008 BCSC 242 (CanLII) (also pdf) might make interesting reading for some.
[1] This is an action for damages for injuries arising out of a motor vehicle accident which occurred on May 22, 1998. At issue on this application for judgment brought by the defendants under Rule 18A of the Rules of Court, B.C. Reg. 221/90 is whether the evidence proves on a balance of probabilities that trauma can make multiple sclerosis (“MS”) symptomatic or otherwise alter the natural course of the disease. I ordered this issue of causation to be severed and tried separately on application of the defendants brought on September 7, 2007. This followed a voir dire held to determine the admissibility of expert evidence directed at the issue of whether there is a causal connection between trauma, including mild head trauma or whiplash injury, and the onset of symptomatic MS. ... [22] As I see it, I am not being asked through this application to determine a scientific rather than a legal issue. The question before me is whether the evidence adduced proves on the balance of probabilities that trauma, including mild head trauma or whiplash, is capable of triggering or exacerbating MS symptoms. That is a question that is necessary to answer to reach a meaningful conclusion in this law suit. In other words, it is a legal question, the answer to which is neither designed nor conducive to resolving any lingering scientific debate on the issue within the medical or scientific world. As I noted in ruling on the admissibility of the parties’ expert evidence, Lord Rodger, the Lord President, similarly characterized the same issue before the court in Dingley v. The Chief Constable, Strathclyde Police, [1998] Sess. Cas. (C.S.I.H.) 548 (Scot.), [“Dingley”], aff’d [2000] Sess. Cas. (H.L.) 77, .... [23] I thus do not accept the plaintiff’s underlying precept that the Court in addressing itself to this general issue is undertaking anything other than a determination of whether an essential element of the tort claim – causation – is made out on the basis of the cogent evidence. [24] Moreover, while I appreciate that the ultimate issue of causation is whether the plaintiff’s MS symptoms were triggered or exacerbated by the accident, the general issue – whether trauma can trigger MS symptoms – dominates the ultimate or specific issue to such an extent that it must be proved on a balance of probabilities to engage even a remote possibility of a connection between the accident and the plaintiff’s ensuing symptomatic MS. In other words, if the Court does not accept on the balance of probabilities that MS can be triggered by trauma, how can the plaintiff prove on a balance of probabilities that her MS symptoms were exacerbated by the trauma of the accident? If the plaintiff’s specific circumstances, condition, and course of treatment constituted meaningful evidence of a causal connection between trauma and the onset of MS, those issues would have been cogent considerations on the issue of the reliability and hence admissibility of the impugned expert evidence. They were not. [25] Hence, it would simply not be logical to conclude that the ultimate issue of the causation of the plaintiff’s MS onset could be proved on a balance of probabilities while concluding the general proposition necessary to establish could not be proved. [26] Such an illogical result would be amplified in the present case in which, on the plaintiff’s own theory, the MS symptoms induced by trauma occur in something less than 5% of all cases. [27] I therefore conclude that what is at issue is not a general scientific theory, but rather an essential element of the plaintiff’s case insofar as she asserts a causal connection between the accident and the onset or exacerbation of her MS symptoms. ... [121] As to the underpinnings of the plaintiff’s theory, for the reasons I have attempted to explain, I do not find in any of the studies or analysis relied on by the plaintiff, taken either individually or collectively, a logical linchpin for proof of the causal relationship being espoused, particularly in view of its asserted rarity, and the growing uncertainty of the role that its asserted mechanism – the disruption of the BBB – has in the demyclination process. [122] I find that the likelihood of a causal connection between trauma and MS exacerbation is significantly less than that of a coincidental connection, in light of all the evidence adduced, and the opinion of a substantial majority of the scientific community. [123] I thus conclude that even on a robust and pragmatic view of the evidence, it does not support proof of a causal connection between mild trauma, including whiplash, and MS exacerbation, on a balance of probabilities.
Now, for those of you whose Canadian law school tort classes are still going on, perhaps one of your students would care to explain 1. what effect does the judge believe Fairchild (not mentioned) or Resurfice (mentioned) have on proof of a sufficient causal relationship for tort? 2. how did that affect the result? 3. what part did the judge's understanding of Resurfice play in his decision? 4. what is the judge's understanding of Resurfice - this is BC: there's now plenty of law (not mentioned)? 5. how come the ancient Chinese and Hebrews made so obvious an error as to think the value of Pi was 3? Does that explain the calendars? 6. take a good luck at para 26. Maybe the judge did realize the implications of Resurfice and that's why you'll see what's missing from the case. Any discussion whatsoever of the meaning of the Resurfice material contribution test. See para 110.
Good reading.
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