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No Striking the Jury for Somatic Symptom Disorder

This case explains how to apply to strike a jury notice in a motor vehicle case. The claimant applied to strike the jury due to complex medical causation issues. He argued that somatic symptom disorder, SSD, was far too difficult for a jury to understand.(Lee v. Averbach, 2019 BCSC 1280).

The court disagreed and did not strike the jury. It is well-established that a litigant who has properly elected trial by jury cannot not be deprived of that right unless there are cogent reasons. Juries are generally held to be capable of understanding complicated medical expert evidence.

Even though there were 13 experts and 460 pages expert reports the Judge refused to strike the 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.

The Judge was not convinced that that the defendant should be denied the right to a trial by jury. The application to strike the jury was dismissed.

Catastrophic Injuries

Tags: Rule 12-6(5)(a) Court may refuse jury trial, Rule 12‑6(5) Court May Refuse Jury Trial, Strike Jury Notice

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"Renn A. Holness is a gifted lawyer and author to over 1000 legal blog articles. Married father of two daughters, son of a neurosurgeon and founder of Holness Law Group."

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