Functional Assessment Biomechanical System (FAB) Deemed Inadmissible in Injury Claim

Reasons for judgement were released today by the BC Supreme Court considering the admissibility of the “Functional Assessment Biomechanical System” (known as FAB for short) in a personal injury claim.
In today’s case (Forstved v. Penner) the Plaintiff was suing as a result of personal injuries.  In presenting her case she hired an occupational therapist to write a report summarizing her physical limitations and giving an estimate of her future care needs.  In preparing this report the occupational therapist used the FAB system.
Mr. Justice summarize the FAB System as follows:

[5] The development of the FAB started in 2004 and Mr. McNeil has been using the FAB results since 2006 or 2007 in the preparation and formulation of his opinions.

[6] The FAB in short is comprised of hardware, the most critical part being some 13 wireless inertial sensors that are attached to a subject or patient’s body while they undertake various physical tasks; and software, that translates the signals from the sensors into measurements of the movements of the body on a real-time basis. Embedded in the software are functions such as the analysis of the data as requested by the operator as the test subject is conducting the instructed activities. It also includes a timer function, graphing and other report templates.

[7] Mr. McNeil is present while the subject performs the tests and says that he observes the actions of the subject. He also states that the FAB is not a diagnostic tool but rather augments his findings. He says he applies standardized tests which are set out in his report and that the FAB system provides additional measures that would otherwise only be guessed at by an evaluator.

The Defence lawyer argued that the expert report should not be admitted into evidence because the FAB System was “novel as a science or technique“.  Mr. Justice Masuhara agreed that the report was not admissible as the FAB System does not meet the judicially required “threshold level of reliability“.

Specifically Mr. Justice Masuhara held as follows:

[12] As I have mentioned, the report itself reflects the measurements from the FAB. The report is lengthy, being 82 pages, again which I say is largely comprised of the information derived from the FAB.

[13] The report says that there are checks and balances within the tests when cross correlating and with cross correlating tests in order to establish the level of effort put forth by the individual. As I have said, he states that it is not a test protocol and that standard tests are used throughout the assessment and that motion capture system augments the evaluator’s observation and allows for accurate measurement, mobility and measurements of biomechanical forces that could otherwise not be performed by the evaluator and that tests are performed to identified the reliability of the individual’s pain reports including distraction tests and Waddell signs.

[14] On the other hand, the defence in following the factors in R. v. J.?L.J. points to the following.

[15] That the technique which includes both the hardware and the software has not been tested except by Biosign or someone under its direction. Mr. McNeil’s own words stated that the testing was still in the “beta phase” which I took to mean that it was not yet ready commercially. The software itself is proprietary and Mr. McNeil being an occupational therapist is not able to speak to the coding as he did not develop it, nor could he speak to the hardware but relied upon his own team of engineers who have developed these things. From that perspective there are some difficulties with respect to the ability to test and to query the software and the hardware embedded and integrated within the FAB.

[16] That the technique while Mr. McNeil indicated was under some form of peer review, nothing has been published and Mr. McNeil was not able to indicate when such a review or the results of such a review would be produced. He also agreed that the motion capture technique is a relatively new technique. Though I note that he stated it was not “cutting edge”.

[17] There are no published standards for the techniques nor is there any rate of error known though Mr. McNeil did say that the device had met CSA, Health Canada, FDA and FCC standards. However, on cross-examination it was revealed that these standards largely deal with safety issues with respect to the device being used upon a subject and could not be taken to speak to the accuracy or reliability of the FAB.

[18] In regard to the technique being generally accepted, Mr. McNeil is the only occupational therapist in British Columbia using the motion capture software. There is no consensus on any technology being the best for the type of work that is the subject of this ruling. No one has yet purchased his technology and the vast majority of occupational therapists do not use motion capture techniques.

[19] Complicating the entirety of the circumstances is the fact that Mr. McNeil is the inventor and a marketer of the FAB. He has a financial interest in the acceptance and success of the FAB. Mr. McNeil’s testimony revealed a lack of appreciation regarding the role of a court expert and the need for open and candid disclosure of a financial interest in the very tools that he refers to in validating or verifying the reliability of the information supporting his opinions. His view that such information was irrelevant was troubling. This problem with respect to his non-disclosure was also referred to by Madam Justice Allan recently in the Rizzolo v. Brett, 2009 BCSC 732 at para. 105. I wish to add that Mr. Mussio was not aware of these issues and that Mr. Chan for the defence only came upon Mr. McNeil’s testimony before Allan J. on the weekend before this trial started.

[20] In the circumstances, I am of the view that the results from the FAB do not meet the threshold level of reliability. As the subject report is comprised to a large degree with the data from the FAB, which creates an unwarranted perception of precision, and which is integrated into the recommendations I rule that the report is not admissible in its present form. Having said that, I think it would be in order for the court to receive submissions from Mr. Mussio and of course reply by Mr. Chan as to Mr. McNeil being called to provide evidence and his opinions based on his observations or some other form in which his testimony can be received by the court. That concludes my ruling.

bc injury claims, expert reports, FAB, FAB System, Forstved v. Penner, Functional Assessment Biomechanical Systen, Mr. Justice Masuhara, novel science, Occupational Therapist, unreliable scientific evidence

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ERIK
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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