Somatic Symptom Disorder Not “Too Complex” For Jury Trial

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, considering whether a claim involving psychological injury was too complex for a jury trial.

In today’s case (Lee v. Averbach) the Plaintiff was involved in two collisions and sued for damages.  The Defendants elected trial by jury.  The Plaintiff argued given the medical evidence the claim was too complex for a jury trial.  The court disagreed and dismissed the Plaintiff’s application to strike the jury notice.  In doing so Master Elwood provided the following reasons:

[27]         The plaintiff describes the expert evidence on these issues as lengthy, detailed, and complex. Across these issues, the plaintiff submits, there is disagreement between the experts about the plaintiff’s condition, whether it was caused by the motor vehicle accidents and the long-term impact on her employment prospects.

[28]         I agree with the plaintiff that her current condition, most significantly in relation to the diagnosis of SSD, will require the jury to engage in a prolonged examination of some of the medical reports. The materials on this application demonstrate that SSD is a complex psychiatric disorder with nuanced symptoms and uncertain causes. To decide whether this disorder was caused by the accidents in issue, the jury will be required to undertake something of a scientific investigation. In addition, I agree that the causation and apportionment issues in this case are relatively complex, with the potential for liability to be found for one accident and not the other, and the possibility of non-tortious intervening events, including the plaintiff’s adverse reaction to the flu shot.

[29]         Having said this, I am not persuaded by the plaintiff that the examination of the medical reports or the scientific investigation that will be required cannot conveniently be undertaken by a jury. Nor am I persuaded that the issues in the case as whole are so intricate or complex that the trial should be heard by a judge without a jury.

[30]         I do not think it will be necessary for the jury to fully understand the neuroscience or the tests that the experts administered to make findings about the plaintiff’s cognitive functioning and whether any impairment was caused by the accidents. It is the job of the experts and counsel to explain the science to the jury. While SSD is a complex disorder, it would be wrong for me to presume that a trial judge would be better able to understand SSD than a properly informed jury. While there is some disagreement between the experts on this isssue, there seems to be a general agreement on the plaintiff’s diagnosis, and the disagreement about whether the disorder was a pre-existing condition is not such that it cannot conveniently be resolved by a jury.

[31]         The jury will need to sort through various events in the plaintiff’s life to make a finding on causation. In this analysis, they will have the benefit of instructions by the trial judge on the law. Their ultimate determination on the issue of causation will largely be a pragmatic application of common sense. Once that determination is made, the rest of the jury’s job should be straight forward. They will need to consider the vocational assessments, functional capacity evaluations, and cost of future care report, but none of this evidence, or any of the conflict in this evidence, is out of the ordinary for any personal injury case.

[32]         The jury will need to retain an understanding of the various parts of the case to connect those parts together and make a decision at the end of an 18- or 20- day trial. This will be challenging. But I am not convinced that the challenge is beyond the bounds of convenience as that concept as explained in the case law. Nor am I convinced that the complexity of the task as revealed by the materials on this application is such that the defendant should be denied the right to a trial by jury.

[33]         For these reasons, the plaintiff’s application to strike out the jury notice is dismissed. Costs of the application will be in the cause.