The Functional Assessment Biomechanical System (“FAB”) is a motion capture system that tracks and measures body movements and biomechanical forces. It has been used in recent years during work capacity evaluations.
Last year the inventor of the FAB attempted to have the system’s measurements introduced in two separate personal injury trials (you can click here and here to read my summaries of those cases). Both times the trial Judges refused to let the evidence in finding that the inventor was not candid about his financial interests associated with system and further that the system did not meet the judicially required threshold of reliability.
More recently, in the trial of Carr v. Simpson the FAB’s inventor took a third kick at the can and attempted to have his system’s measurements introduced at trial. This time he was forthright about his financial interest in the product. This change in candour seemed to make all the difference with Mr. Justice Bernard allowing the FAB’s measurements to be introduced at trial. Mr. Justice Bernard gave the following reasons permitting FAB measurements into evidence:
 In the case at bar, Mr. McNeil testified with knowledge of the rulings in Rizzolo and Forstved, and the plaintiff has endeavoured to have Mr. McNeil address the evidentiary problems and shortcomings which were identified in these earlier cases. I am satisfied that in his present testimony Mr. McNeil has been more forthright about his role as inventor of FAB and of his financial interest in it. It seems that in both Rizzolo and Forstved it was Mr. McNeil’s lack of candour, rather than his inventor/owner status per se, which was particularly troubling to the court. I am not persuaded that the now more candid Mr. McNeil should be precluded from giving expert testimony merely because he has a financial interest in FAB, in the absence of other evidence which might call into question his independence.
 In relation to the reliability of FAB and proof thereof, the evidence establishes that it is a measuring tool, albeit a technologically-advanced one, rather than a diagnostic instrument per se. The distinction is, in my view, important.
 The science about which Mr. McNeil testified is the assessment of the human body’s functional capacity. This science is well-recognized by the courts, and its application generates findings which may be of assistance to the court and which could not likely be made without such evidence. It is not a novel science. The introduction of a novel measuring instrument in the application of a science does not make the science, itself, novel. For example, the advent of MRIs did not make orthopaedic medicine a novel science; accordingly, I am not persuaded that the cautious approach to admissibility (as suggested in R. v. J.-L.J. [R. v. J.J.], 2000 SCC 51,  2 S.C.R. 600, and adopted in Forstved), including the threshold burden imposed upon the tendering party, obtains. This is particularly so in non-jury trials in which the judge’s “gate-keeper” function has much reduced significance.
 I do not mean to suggest by any of the foregoing that the reliability of the tools employed by experts may not be challenged in an attempt to undermine the factual underpinnings of a diagnosis or assessment; however, unless the undermining renders the opinion virtually valueless, it will go to the weight of the opinion and not to its admissibility. In the instant case, I am not satisfied that the evidence elicited from Mr. McNeil in cross-examination so weakened his opinion as to render it of no value and, therefore, inadmissible. As already noted, only Mr. McNeil testified in the voir dire, and the defendant elected to call no evidence on the issue of the reliability of FAB.
 In summary, I am satisfied that the evidence tendered in this case relating to: (a) the reliability of FAB, and (b) Mr. McNeil’s financial interest in FAB, falls far short of establishing a reasonable basis for excluding the opinion evidence of Mr. McNeil. It remains open to the defendant to argue that these factors, to the extent that they are established by the evidence, affect the weight to be attached to Mr. McNeil’s opinion.