Case Name:

Reis v. Doman

Between
Lionel Reis, plaintiff, and
Jaroslava Doman, Colleen Petruk, Northwest GTA Hospital
Corporation - Georgetown Hospital Campus and Preston
Tran, defendants

[2004] O.J. No. 5214
Court File No. 99-BN-2265

Ontario Superior Court of Justice
Tulloch J.

Heard: February 2, 2004.
Judgment: February 2, 2004.
(8 paras.)

Evidence - Real or demonstrative evidence - Trial practice.

Motion by the plaintiff, Reis, for an order granting him permission to refer to demonstrative evidence consisting of medical illustrations of his hip injury arising from a motor vehicle accident. The defendants, Doman, Petruk, Northwest GTA Hospital Corporation and Tran, argued that the evidence would have an inflammatory effect on the jury and the prejudicial effect would outweigh the probative value. One of the illustrations referred to an artist's depiction of future effects on Reis' hip.

HELD: Motion allowed in part. Three of the illustrative aids were not excessive and their probative value outweighed the prejudicial effect. The artist's depiction's prejudicial effect outweighed its probative value.

Counsel:

Stewart C.E. Gillis, for the Plaintiff

David A. Tompkins, for the Defendant, Colleen Petruk

RULING 1

1. TULLOCH J.:- At the commencement of trial, the plaintiff's counsel brings a motion for, among other relief, an order in limine granting the plaintiff permission to refer to demonstrative evidence consisting of the medical illustrations and photographs of the plaintiff's hip injury which was occasioned as a result of the accident. The plaintiff intends to tender and prove these illustrations and photographs during the course of the trial of this action. These illustrations consist of four different depictions of the injury in question. The first illustration, entitled "Details of Left Hip Fracturing", shows the posterior (back) view as well as the lateral (outside) view of the plaintiff's hip. There is also an x-ray of the injury dated August 21, 1998 photographed on this illustration. There is also an indication on the depiction that the illustrations were constructed from x-rays, CT scans and medical reports.



2. The second illustration is entitled "Mechanism of Left Hip Injury/Dislocation" and shows:
   1. the force that is transmitted through the femur upon the impact of the accident;
   2. the fracture of the acetabulum;
   3. a concept of the primary cartilage damage; and
   4. the dislocation of the hip in forward flexion.


3. The third illustration is entitled "Surgical Repairs of Hip Fracturing" and details the lateral post-op view as well as a detailed view of the repair of the injury. There is also a photograph of an x-ray of the posterior view of the hip injury repair, dated August 24, 1998.



4. The fourth illustration is entitled "Concepts of Possible Future Outcome from Left Hip Injury". This illustration attempts to show a sectional front view of the hip injury in an advanced state of osteoarthritis. This illustration also depicts what the hip would look like with total hip replacement or arthroplasty. It is clear from the drawings that this fourth depiction is only the artist's conceptual illustration of the future deterioration and not a reflection of the current state of the injury.



5. Counsel for the plaintiff argues that all of these illustrations are demonstrative aids which would be used during the trial to inform and assist the jury in understanding their responsibilities. He argues that their probative value outweighs the prejudicial effect.



6. Counsel for the defence on the other hand argues that all these depictions will have an inflammatory effect on the jury and that the prejudicial effect of allowing them to be tendered into evidence far outweighs the probative value. The defence argues that this is especially true with respect to the fourth illustration which depicts a possible future outcome that does not currently exist and which may never occur.



7. I have examined each of the illustrative aids that counsel intends to tender. As well, I have carefully considered the positions of both counsel and I am of the view that the first three illustrative aids are informative depictions which will be of great assistance to the jury in their overall understanding and assessment of the evidence. I find those illustrations are not inflammatory or excessive and that their probative value far outweighs their possible prejudicial effect. I therefore find that the plaintiff is allowed to use the first three illustrations to aid the jury in understanding the evidence.



8. With respect to the fourth illustration, I agree with defence counsel's argument and rule that it is not admissible as its prejudicial effect in this case far outweighs the probative value. This illustration is a concept of possible future outcome, not a reflection of the current state of the injury. There is no certainty that what is depicted in the illustration will ever be a reality. Therefore, this illustration ought not to be tendered into evidence nor referred to by counsel.

TULLOCH J.

QL UPDATE: 20050110
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