By D. Joel Dick, Associate
The Ontario Superior Court recently struck a Jury Notice in a brain injury case on the basis that the calculation of damages would require counsel to educate the Jury with respect to the contested science around brain injuries.
Joseph Foniciello was rear-ended and suffered a serious brain injury. He then sued both the driver of the vehicle that struck him and the road crew that was in the course of repainting the roadway when the accident happened. The Defendant driver settled his part of the case with Foniciello, but the Trial proceeded against the roadway marking company.
At the start of the Trial, the Plaintiff moved to strike the Jury. The Court noted that it would be “a formidable task” to educate the jurors on complicated issues of neuroscience and interpreting and assessing the tests the various experts had administered. The Judge noted that in the case of a complex brain injury, it would be necessary “for the Jury to acquire a proper foundation of knowledge, and then use that knowledge to assess the evidence of competing experts.”
Considering all of the factors, including the difficulty of assessing Foniciello’s credibility given the nature of his brain injury and his documented lack of insight into his own neurocognitive deficits, the Trial Judge concluded that the matter should not proceed to an assessment of damages with the Jury. However, it is important to note that the Trial Judge split the case and allowed the question of liability to be tried by the Jury.
This is an important case that thoroughly canvasses the law related to striking a Jury. However, it also highlights the likelihood that a Motion to strike the Jury can result in a bifurcated Trial where the Jury determining liability will not hear any of the evidence about the seriousness of the Plaintiff’s brain injury.
The case can be found under the citation Foniciello v. Bendall  ONSC 2204 (CanLii).