Court discharges jury due to "improper" closing submissions of plaintiff's counsel

In reasons released last week, the court in Leaf v. Newton, 2017 BCSC 968, discharged the jury after hearing four weeks of evidence in a medical malpractice case due to the "improper" and "misleading" statements made by plaintiff's counsel during closing argument.  Madam Justice Wedge said:

[1]            THE COURT:  The defendants in this medical malpractice trial have brought an application asking that I discharge the jury and, under R. 12-6(12), continue the trial by judge alone.

[2]            The basis for this application is the closing address made by counsel for the plaintiff at the conclusion of this four-week trial. The defendants say the cumulative effect of the numerous alleged improper submissions cannot be rectified by cautions to the jury. They submit any attempts to rectify the transgressions will only magnify them in the minds of the jury members and enhance their prejudicial effect. Moreover, they say instructions to the jury to disregard submissions of counsel for the plaintiff could also prejudice the plaintiff in the eyes of the jury.

[3]            Counsel for the plaintiff, not surprisingly, vigorously opposes this application. It is the plaintiff who sought a jury trial in this case, and her right to do so cannot be negated except in the most extraordinary of circumstances. Plaintiff’s counsel says this is not one of them. He correctly notes that there is a very heavy burden on the defendants in this case to convince the court that the jury ought to be discharged.

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[23]        Plaintiff’s counsel first of all revealed to the jury the terms of the arrangement between the plaintiff and the BCAS that resulted in them being released from the lawsuit. He told the jury that the paramedics were allowed out of the action “without paying a dime to the plaintiff” because in his opinion there was no case against the paramedics. He submitted further that blaming the paramedics was a “red herring,” part of the “fog” created in the case, clearly meaning “fog” created by the defendants. He submitted further that he, as counsel, was not in the business of suing people when there is no case against them.

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[36]        Plaintiff’s counsel went on to tell the jury that the “but for” test for causation was also known as the “so what” test, apparently attempting to downplay the test the plaintiff must meet as a matter of law. He also denigrated the expert evidence on causation, quoting Bob Dylan’s line “You don’t need to be a weatherman to know which way the wind is blowing.” He did not explain to the jury how that could be so, given that they have no expertise in neurology or emergency medicine.

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[41]        Plaintiff’s counsel repeatedly told the jury to cut through the fog, implying that much of the evidence called by the defendants was an attempt to obscure the truth. He appealed to the jury to decide the case on the basis of their sense of justice. He stated that people have a “sense of smell and of taste,” and that similarly the jury had a sense of justice such that they would remedy the wrong done to the plaintiff by the defendant.

[42]        Plaintiff’s counsel expressed his personal opinion that the plaintiff’s family were decent, honest people whom the jury must believe were telling the truth. He also expressed his opinion this was an honourable family who did not want the plaintiff to be a victim of negligence and did not want to bring a lawsuit against the defendants, hence, the decision to release the paramedics from the lawsuit without any compensation because there was no merit in the allegations against them.

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[49]        I have no doubt that plaintiff’s counsel was doing all he could to advance the plaintiff’s case, a tragic one, before the jury. Nevertheless, his advocacy in closing crossed the permissible line in too many respects to rectify.

[50]        I have very reluctantly concluded that I have no alternative but to discharge the jury, despite the fact that they have heard four weeks of evidence in this trial.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/09/2017BCSC0968.htm