"En Masse" Document Book and Discovery Transcript Admission Leads to New Trial Following Jury Verdict

Reasons for judgement were released today by the BC Court of Appeal ordering a new trial after a document book was admitted ‘en masse’ along with a discovery transcript in a personal injury  jury trial.
In today’s case (Han v. Park) the Plaintiff was injured in a 1999 collision that the Defendant admitted fault for.  The litigation had a “somewhat tortured history” finally coming to trial in October 2013.  The Plaintiff was awarded only a fraction of the damages she sought.  The Court of Appeal ordered a new trial finding it was inappropriate to give the jury access to a defence document book without careful limitations as to the use of the various documents contained therein and also for having access to a discovery transcript.  In criticizing these steps the Court of Appeal provided the following reasons:

[31]         This Court has held that medical records should not be entered en masse: Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431:

[39]      The preferable approach is obvious. Clinical records should not be admitted into evidence, by consent or otherwise, unless counsel identify the specific purpose for particular portions of the records. Furthermore, it would be preferable to introduce discrete portions of the records when they become relevant so that their admissibility can be ruled on at that time, when the jury will better appreciate the purpose of those portions in the context of the case and will have the assistance of a contemporaneous limiting instruction. In no event should a “book” of documents simply be handed up to the court and admitted as a whole.

[Emphasis added.]

[32]         I would not restrict this comment to medical records. Further, the fact that an appellant may have consented to the admission of the records is not always the determinative factor in deciding whether documents should have been entered into evidence, and will not preclude the ordering of a new trial with costs to the appellant after prejudicial clinical records were entered into evidence: Owimar v. Greater Vancouver Transit Authority, 2007 BCCA 630, citing Samuel.

[33]         In Owimar the court held that a new trial was required where the admission of certain psychiatric records without a proper limiting instruction resulted in an unfair trial:

[41]      In my opinion, the admission of the psychiatric records in this case rendered the trial unfair. The records were left with the jury at the second day of trial. The limiting instruction as to opinions expressed in the records was given shortly before the jury retired to consider its verdict. In the meantime, there were many statements contained in the records that portrayed the plaintiff as unstable and out of touch with reality. Those statements might easily have been accepted by the jury as further diminishing the plaintiff’s credibility. Although there is no doubt that the plaintiff’s credibility was a central issue in the case and he had much to do to convince the jury of his truthfulness, that issue deserved to be proved independent from psychiatric evidence that had no bearing on the physical injuries he claimed to have suffered. I would accordingly order a new trial.

[34]         I agree with the appellant that like Owimar, the inclusion of some of the clinical records and material contained in the Exhibit had the effect of portraying the appellant as a difficult, manipulating, and stubborn individual. As appellant’s counsel states, this portrayal shifted the focus of the jury to the appellant’s negative character traits, rather than to the main issues of the trial.

[35]         The respondents’ trial counsel assured the judge all the documents in the Exhibit would be referred to in the cross-examination of Ms. Han but they were not. Some of the documents were irrelevant, some were prejudicial, and some were inflammatory. The Exhibit was marked outside the presence of the jury – the trier of fact – which is an irregularity. There was no document agreement in place, so the basis for the appellant’s consent to the admission of the Exhibit is not clear. Even with consent, the trial judge is always the gatekeeper.

[36]         In my view, the Exhibit should not have been admitted en masse. Some of the documents and records should not have been admitted at all, as their admission was highly prejudicial and resulted in a substantial wrong or miscarriage of justice.

[37]         On this ground alone, it is in the interests of justice to order a new trial….

[39]         I agree with the appellant there was a significant risk that the jury would give greater weight to the transcribed portions than to the appellant’s testimony since there was no transcript of her answers given in evidence in response. The judge’s instruction to the jury that the transcript was an aide memoir did not overcome the resulting prejudice to the appellant resulting from the jury having only one side of the picture during their deliberations.

[40]          This procedure was highly irregular and prejudicial to the appellant, resulting in a substantial wrong or miscarriage of justice.

[41]         I would also allow the appeal on this ground.

Lastly, the Court noted it is inappropriate to conduct a present value calculation when considering the costs consequences of a historic formal settlement offer.