Power J. Analyzes Right of Self-represented Solicitor to Be Paid Costs

Posted on June 29, 2007 by Stephen Cavanagh

Mr. Justice Denis Power released an interesting and rather novel costs ruling yesterday in the ongoing Riddell v. The Conservative Party of Canada litiigation.

Ottawa lawyer Alan Riddell, once the Conservative Party of Canada’s candidate in the federal riding of Ottawa South, is embroiled in a lawsuit with the party over the circumstances of his withdrawal from the 2005 election campaign. In yesterday’s ruling, Justice Power was fixing costs of an application brought by Mr. Riddell, who had been the successful party.

Counsel for Mr. Riddell sought costs on a full indemnity or, in the alternative, a partial indemnity basis. He argued that the Conservative Party had “attempted to smear Riddell’s reputation as a lawyer and lifetime Party activist in the hope that he could be pressured into abandoning his application without a hearing” and that the Party had filed an affidavit containing false allegations that impugned Mr. Riddell’s mental stability and professional integrity.

Mr. Riddell also submitted that the result achieved on the application was more favourable than two offers to settle that he had made.

What is particularly noteworthy about this decision is that part of Mr. Riddell’s claim for costs was for time spent by him personally and by others at his law firm, even though he also had counsel from McCarthy Tetrault representing him. As Justice Power noted, “in theory at least, had it not been for Mr. Riddell’s efforts, the McCarthy Tetrault fees would have been considerably higher than the claim now being made on account of the McCarthy Tetrault fees.”

Justice Power awarded costs on a partial indemnity basis. He said that the Conservative Party had “played hardball” but had not engaged in conduct warranting costs on a full or substantial indemnity basis. He reviewed the authorities and the provisions of s. 131 of the Courts of Justice Act to conclude that Mr. Riddell and his firm were entitled to recover, as costs, a portion of the value of the time that they had expended on this case. He noted that s. 131 confers on the court a discretion with respect to “the costs of and incidental to a proceeding”. His Honour felt that the phrase, “incidental to” must mean something more than just “costs of a proceeding”.

Satisfied that he had a discretion to order that Mr. Riddell and his firm be paid costs for their own time, Power J. noted that there was little in the way of guidance from the authorities, as to how that discretion should be exercised. He also remarked that he had not been provided with evidence of the profit-sharing arrangement in place between Mr. Riddell and his law firm. However, Justice Power considered that he was able to draw some inferences. He estimated that Mr. Riddell would have received in payment from his firm a net return of about 40% for his own time and that of his employees.

So, having determined that a partial indemnity award of costs was appropriate, Justice Power awarded to Mr. Riddell 60% of that 40%, applied to the value of the time for which a claim for costs had been made; in other words, the fees were allowed at a rate of twenty-four percent of the actual time. (This was on the basis that a partial indemnity costs award would normally be about 60% of the actual rate charged to the client.)

Justice Power also analyzed, in the usual way, the time spent by McCarthy Tetrault and made an award of partial indemnity costs relative to those fees.

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C.A. Says No Allocation Between Primary and Excess Insurers

Posted on June 27, 2007 by Stephen Cavanagh

In McKenzie v. Dominion of Canada General Insurance Company, released today, the Court of Appeal clarified the law with respect to overlapping insurance coverage and the order in which liability insurance policies must respond to a claim.

In the Supreme Court of Canada’s ruling in Family Insurance Corporation v. Lombard Canada Inc., that court had dealt with “other insurance” clauses in insurance policies. In that particular case, the Court held that the “other insurance” provisions in two overlapping insurance policies, each of which sought to make that policy excess to other policies, cancelled each other out. The Supreme Court propounded a scheme whereby the two policies shared coverage equally up to the limit of the policy with the lower liability limits, after which the other policy alone would respond to the claim.

In today’s case, the issue involved the interpretation of the Family v. Lombard decision. The claim arose out of a collision between two boats. Three different insurance policies provided liability coverage for the operator of one of the boats. The policies were a boat owner’s liability policy, a homeowner’s policy and a personal liability umbrella policy (“PLUP”). In the court below, it had been determined that the boat owner’s liability policy responded first, and no issue was taken with this on appeal.

The next issue was, in what order did the two remaining policies respond? Each of those policies had an “other insurance” clause that made it excess to other policies. The motions judge had applied Family v. Lombard and had found that because both policies said that they were excess coverage only, the “other insurance” provisions cancelled each other out and the homeowner’s and PLUP were both triggered after the boat owner’s policy.

The Court of Appeal held that the motions judge had incorrectly interpreted Family v. Lombard. It said that the rule in that case applied only between insurers with “a coordinate obligation to make good the loss”.

Here, the PLUP was a true umbrella policy. It required, as a condition of coverage, that there be underlying insurance with limits of at least $300,000. If the insured had failed to obtain such insurance, the policyholder would be self-insured for that amount.

Because of this, the Court of Appeal held that it was clear that the two policies in question did not have a coordinate obligation. One was intended to be “first loss” and the other to be “excess”. They covered, said the Court, “different layers of risk”.

That being so, the reasoning in Family v. Lombard was held to be inapplicable. The Court ruled that the homeowner’s insurer had to respond after the boat owner’s liability policy. Only if the claims were to exhaust both underlying policies would the PLUP be triggered.

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C.A. Says Relief from Forfeiture only Available for Post-loss Events

Posted on June 27, 2007 by Stephen Cavanagh

In Williams v. York Fire & Casualty Insurance Company, released today by the Court of Appeal, the court was dealing with a fact situation that often comes up. A driver was involved in an accident. When the accident occurred, the driver’s licence was under suspension. However, he claimed that he had been unaware of this fact and sought relief from forfeiture of his auto insurance coverage.

The driver in this case was involved in an accident in British Columbia. He had formerly lived in Ontario, where he had a number of unpaid speeding tickets, which had resulted in his licence being suspended just hours before he was involved in an accident in British Columbia. He claimed not to have known this (and that contention was not in issue on the appeal).

His insurer denied coverage on the basis that the insured was in breach of statutory condition 4: “The insured shall not drive or operate or permit any other person to drive or operate the automobile unless the insured or other person is authorized by law to drive or operate it.” The insured sought relief from forfeiture under s. 129 of the Insurance Act, which reads as follows:

Where there has been imperfect compliance with a statutory condition as to the proof of loss to be given by the insured or other matter or thing required to be done or omitted by the insured with respect to the loss and a consequent forfeiture or avoidance of the insurance in whole or in part and the court considers it inequitable that the insurance should be forfeited or avoided on that ground, the court may relieve against the forfeiture or avoidance on such terms as it considers just.

The insurer argued (as have others before it), that by its language, s. 129 applies only to “post-loss aspects of non-compliance”. Since the breach by the insured preceded the loss, contended York Fire, s. 129 does not apply.

The insured relied on a case that has often been cited in this type of case: Quarrie v. State Farm Mutual Automobile Insurance Co. (1997), 32 O.R. (3d) 421 (Gen. Div.). In that case, the insured’s licence had been suspended only four hours before the loss and he was not aware of it. The court in that case granted relief from forfeiture.

In the present case too, the motions judge had accepted the insured’s argument and granted relief from forfeiture. However, the Court of Appeal allowed the appeal. It overruled Quarrie and took a much more restrictive view of a court’s power under s. 129:

It is clear from Falk, as Madam Justice McLachlin stated, that “it is only in respect of such statutory conditions as to proof of loss or other matters or things that are required to be done or omitted with respect to the loss that the court has this power.” [Emphasis added by the court.]

The court’s power under s. 129 is only in relation to things or matters required to be done, in relation to the loss, that is, after a loss has occurred. The discretion a court has under s. 129 is a narrow one pertaining only to those policy conditions – statutory or contractual – that relate to proof of loss. It does not apply generally to all policy conditions.

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Corporate Insured Permitted to Claim Damages for Mental Distress on Behalf of Its Officers in Fire Insurance Claim

Posted on June 26, 2007 by Stephen Cavanagh

In 539091 Ontario Ltd. v. Allianz Insurance, Madam Justice Helen Pierce was dealing with various proposed amendments to the statement of claim in a fire insurance case. The motion raised several interesting issues but of particular note was the request of the plaintiff limited company to be able to claim damages for mental distress on behalf of its two shareholders (apparently without naming the individuals themselves as plaintiffs). Pierce J. granted leave to the plaintiff to amend the claim, to seek damages for mental distress on behalf of the two shareholders in question, but in their capacity as officers of the corporation.

Another part of the motion dealt with the withdrawal of an admission. The reasons of Pierce J. provide a useful discussion of the law on this subject.

Background

The plaintiff was a numbered company owned by Lenard and Margaret Ager. It operated an R.V. sales business whose premises were damaged by fire in August, 2001. In April, 2002, the corporation sued its insurer, Allianz, for payment on a policy of insurance. No proof of loss was delivered until August, 2002, after Allianz had entered a statement of defence. (Arguably, under the statutory conditions of Part IV of the Insurance Act, there was no cause of action when the action was commenced because under statutory condition 12, the loss only became payable “within sixty days after completion of the proof of loss”. Since no proof of loss had been filed, the insurer could not have been in breach of the policy.)

When it was delivered, the proof of loss indicated that the plaintiff intended to pursue a claim for business interruption, although no such claim had been pleaded. In correspondence, the plaintiff’s solicitor expressed an intention to amend the pleading, to advance such a claim. The solicitor said that it was through oversight that he had not done so. 

The issue nevertheless received quite a bit of attention in the course of the examinations for discovery and ensuing answers to undertakings. In 2005, counsel for the plaintiff wrote to the defendant’s solicitor and said, “I can confirm that there will be no claim for business interruption loss.”

In April, 2005, the plaintiff filed its trial record. Pretrial conferences were held in 2005 and again in 2006. In November, 2005, to the surprise of counsel for the defence, the plaintiff’s solicitor advised that the business interruption claim was still being pursued.

At this motion, the plaintiff sought amendments to its claim, to advance the claim for business interruption and to claim damages for mental distress on behalf of its two shareholders.

Withdrawal of an admission

Allianz opposed the addition of the business interruption claim on several bases, but primarily because the insurer said that the amendment amounted to the withdrawal of an admission. Although Rule 26.01 mandates the making of amendments to pleadings “at any stage of an action”, Rule 51.05 imposes more rigorous requirements where the proposed amendment would have the effect of withdrawing an admission.

Counsel for the plaintiff argued that the statement, that no business interruption claim would be made, was not an admission as it had not been made by the principals of the plaintiff company.

Justice Pierce’s reasons say, “I do agree with the rationale for this submission”. However, the context of this language suggests that she actually intended to say, “I do not agree with the rationale for this submission.” She noted that the corporation had to be represented by counsel and that even if that counsel were dismissed, any admission made by him would remain in effect.

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Privilege Waived on Expert’s Report After It Was Reviewed by Second Expert

Posted on June 26, 2007 by Stephen Cavanagh

UPDATE: We have learned that the plaintiffs have sought leave to appeal Justice Power’s decision. We will report the outcome of that motion, which is to be heard on July 20, 2007. 

It is our understanding that the main (although not the only) ground on which the plaintiffs intend to challenge the ruling of Power J. is the fact that the expert Sack said that the report of expert Gray had not affected Sack’s opinion. Justice Power found that it could have had an effect. It sounds like the issue will be whether a court should apply a subjective test (was the second expert actually influenced by the first expert’s report or not?) or an objective test (is it reasonable to conclude that the first expert’s report had some effect on the opinion of the second expert?)

Our original post follows.

In Bazinet v. Davies Harley-Davidson, Mr. Justice Denis Power held that privilege had been waived on an expert’s report for which privilege had been claimed after that report was referred to in a report from another expert. Waiver of privilege occurred when the report of the second expert was produced to the defendant.

The action arose out of a single-vehicle motorcycle accident. The defendant was alleged to have negligently repaired the plaintiff’s motorcycle.

Counsel for the plaintiff had obtained a report from an expert by the name of Sack, which report was produced to counsel for the defendant. In that report, Sack had said that he had reviewed an earlier report that had been prepared by another expert, Gray. That report had been obtained at the request of counsel for the plaintiff prior to the commencement of the litigation. The plaintiff had claimed privilege on the Gray report and did not intend to call Gray as a witness at trial.

On the motion, the plaintiff had filed a letter from Sack, in which the latter said that although he had read Gray’s report, “this document did not play any role in the opinion I established”. Justice Power said that he “had some difficulty” with that statement. He asked that he be given a copy of the Gray report. His Honour reviewed the report and placed it in a sealed envelope, in the court file. His reading of the report led Power J. to say that Sack’s statement, that the Gray report had played no role in Sack’s opinion, “is certainly a proposition subject to argument because the Gray report expresses possibilities and probabilities for the tire failure”.

Turning to an analysis of the law, Power J. said that prima facie, the defendant was not entitled to production of the Gray report. He referred to a decision of Mr. Justice Ferguson in Browne v. Avery and to the Court of Appeal’s decision in Conceicao Farms Inc. v. Zeneca Corp. Drawing on these authorities, Justice Power held that privilege on the Gray report had been waived by the production of the Sack report. As well, he found that the document was producible as a “finding, opinion or conclusion” of the expert Sack. His Honour said:

 [32] The law appears settled that a report of one expert that was apparently used and considered by another expert is subject to disclosure to an opposite party in circumstances where the privilege is waived concerning the report of the second expert. Courts have reasoned that the first report is a “finding” within the meaning of Rule 31.06(3). The term “findings”, has been held to include the information and data obtained by an expert contained in documents where it appears that the expert reached his or her conclusion and opinions apparently based, in part at least, on such findings.

[33] The plaintiff’s decision to rely on the Sack report constitutes a waiver of privilege over that report and, by inference, over the report of Mr. Gray even if a waiver of privilege with respect to the Gray report was an inadvertent one.

[34] In these circumstances I am compelled to conclude that the Gray report is a relevant document in the plaintiff’s possession and should be produced under Rule 31.06 on the grounds that the report is no longer privileged, privilege having been waived. The defendants are entitled to the disclosure and production of the report for the purposes of inspection of the report. The defendants are also entitled under Rule 31.06(3) to obtain disclosure of the findings, opinions and conclusions of Mr. Gray because, privilege having been waived, the plaintiff was not in a position to refuse disclosure on discovery. As well, even if there was no waiver of privilege, the defendants are entitled to the information pursuant to the said rule.

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Costs Roundup: Costs Award Means Pyrrhic Victory for Conrad Black; Solicitor Personally Liable for Costs

Posted on June 22, 2007 by Stephen Cavanagh

Two new costs decisions are, we think, worthy of note.

Sun-Times Media Group Inc. v. Conrad Black

ConradBlack.jpg

At a time when Mr. Black probably has other things on his mind, Justice Colin Campbell had the task of fixing costs of a half-day motion in which Black had enjoyed at least partial success. What made this case a bit out of the ordinary was the amount claimed by Black’s lawyers as costs of the motion: $243,314 on a substantial indemnity basis or $178,308.81 on a partial indemnity basis.

Counsel for the plaintiff Sun-Times submitted that Black should receive either no costs or that those costs be limited to $15,000.

Campbell J. was obviously more than a little exasperated at the amounts in issue:

I find it astounding that our cost regime could give rise to a “reasonable” expectation on the part of two sides in a motion that took less than half a day to argue, which would differ by over a quarter of a million dollars.

…

If our system is to respond in a formulaic way such that a half-day motion can result in a cost award of $243,314, then there is little doubt that the critics who claim that the civil justice system fails to meet the needs of the vast majority of citizens are correct.

His Honour had a number of criticisms of the Black costs tab:

  • the breakdown of time was not specific as to who did what, as no dockets were provided with the submissions;
  • a claim was made for expert’s fees of $32,433.63. No preliminary authorization had been obtained for the introduction of expert evidence on a motion. In this case, the “so-called expert evidence, which should have no place on a motion of this type”, was neither necessary or helpful, said the judge. The disbursement was disallowed;
  • His Honour was very critical of a claim for $9,616.96 for photocopies: “In this day and age, cases can be provided by CD with the actual references relied on either quoted in the factum or included in a short compendium. When one considers the alternatives, a profit centre photocopy rate of $0.25 a page or more that gives rise to a claim of nearly $10,000.00 must be considered excessive.”;
  • a claim for a disbursement of $3,004,53 for online legal research was also found to be excessive, particularly since the students doing the research were being charged out at $150 per hour.

Although Justice Campbell acknowledged the importance of the motion to Mr. Black (apparently, the concern was that he not be subjected to cross-examination at this time), His Honour said that importance to one side should not mean automatic recovery of all fees incurred. In the result, he awarded $65,000 for all fees, disbursements and GST, on a partial indemnity basis.

McDonald v. Standard Life Assurance Company

In this case, Justice Joseph W. Quinn, on his own initiative, had convened a hearing as to whether counsel for the plaintiff ought to be personally liable for the costs of two motions. One motion had been brought by each side in this litigation concerning long term disability benefits. The plaintiff had asked that the statement of defence of Standard Life be struck out for its failure to provide “a summary of the facts of the surveillance” on the plaintiff. The defendant had moved to set aside a certificate of non-attendance and for an order that the plaintiff be examined before the discovery of the Sun Life representative. The plaintiff had lost both motions.

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No Coverage Under Homeowner’s Policy for Allegations of Negligent Supervision of Driver

Posted on June 21, 2007 by Stephen Cavanagh

In The Co-operators General Insurance Company v. Murray et al., Mr. Justice Robert MacKinnon ruled that a homeowner’s insurance policy did not cover a claim that the insureds failed to supervise their son, who had been the driver in a single-car accident.

It was acknowledged on all sides, that the parents’ auto policy did not respond to the claim against them because their son had been driving someone else’s car at the time of the accident. However, the parents contended that their homeowner’s insurance policy ought to provide them with a defence to allegations in the plaintiffs’ claim, that the parents had failed to discipline or supervise their son and had failed to act as reasonable and prudent parents. The plaintiffs had also pleaded the reverse onus provision of s. 10 of the Parental Responsibility Act 2000, which says, “In an action against a parent for damage to property or for personal injury or death caused by the fault or neglect of a child who is a minor, the onus of establishing that the parent exercised reasonable supervision and control over the child rests with the parent.”

The insurer, Co-operators, took the position that it did not owe a defence to its insureds because the liability coverage in its homeowner’s policy contained an exclusion for damage arising from ownership, use or operation of any motorized vehicle.

Justice MacKinnon noted that “the court is not required to accept the descriptive labels in the Wilsons’ [the plaintiffs’] statement of claim as dispositive of the issues on this application….I must review the pleadings to discern the substance and true nature of the claim. Substance trumps form.”

His Honour reasoned that no matter how the evidence came out at trial, the parents could only be found liable if it were also found that their son had driven a car negligently. Findings of negligent supervision or poor parenting, standing alone, could not result in the parents being responsible to the plaintiffs in damages. Therefore, the pleaded claims were derivative of the negligent driving claims that had been made against the son. The latter engaged the exclusion in the Co-operators’ policy, with the result that there was no coverage for the parents.

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Motions for Non-suit a Waste of Time, Says C.A.

Posted on June 13, 2007 by Stephen Cavanagh

After yesterday’s decision by the Court of Appeal in Prudential Securities Credit Corp., LLC v. Cobrand Foods Ltd., we are unlikely to see many more motions for non-suit in this province. The Court said that the procedure “has little practical value”, that it “adds to the time and expense of a trial” and that it is “becoming obsolete”.

The ruling was also interesting because the Court heard two appeals, one by the plaintiff and the other by one of two defendants. In both, the Court agreed that the trial judge had erred. But it dismissed both appeals on the ground that no substantial injustice had resulted from the errors.

Prudential had sued a husband and wife, the former on a guarantee and the latter on the basis that the husband’s transfers of property to her had been fraudulent and therefore void under the Fraudulent Conveyances Act. At trial, counsel for both husband and wife brought motions for non-suit and elected to call no evidence. The non-suit motions were argued over the course of two and a half days and the trial judge, Mr. Justice Herman J.W. Siegel, reserved his decision. He advised counsel that if he decided to dismiss the motions, they should be prepared to re-attend before him, to make closing submissions.

A few days later, he released his decision. He dismissed the husband’s motion for non-suit and granted the wife’s motion. He said that his reasons would follow. When they did, nine months later, the reasons dealt not only with the motions for non-suit but also gave judgment for Prudential against the husband on his guarantee. The trial judge had evidently forgotten about having counsel present their final arguments.

The husband appealed on the basis that because his counsel had not been able to make closing submissions, he had not been afforded an opportunity to fully present his case.

Prudential also appealed the dismissal of its claim against the wife, following her motion for non-suit. It argued that the trial judge had applied the wrong test in granting the wife’s motion.

The Court of Appeal (the panel was made up of Justices John Laskin, Stephen Borins and Kathryn Feldman) agreed with both of these submissions but chose not to disturb the trial judge’s decision. In the course of its reasons, Justice Laskin, writing for the Court, discussed motions for non-suit in language calculated to discourage their use in future cases.

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Costs Denied Where Jury Awards Plaintiff Only $20,000 in MVA Claim

Posted on June 1, 2007 by Stephen Cavanagh

Garisto v. Wang is one of relatively few cases in which a trial judges has imposed the costs penalties contained in Rule 76 of the Rules of Civil Procedure.

The plaintiff had originally sought damages of $800,000 in this car accident case. By the time of trial (which lasted 7 or 8 days), the plaintiff’s demands had reduced to $100,000 plus. At trial, the jury found for the plaintiff on liability but awarded only $20,000 in damages. After the statutory deductible was applied, the award dropped to $5,000.

The Insurance Act provides, in s. 267.5(9), that “In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the determination of a party’s entitlement to costs shall be made without regard to the effect of paragraph 3 of subsection (7) on the amount of damages, if any, awarded for non-pecuniary loss.” So, for the purpose of considering the plaintiff’s entitlement to costs, Mr. Justice Peter H. Howden was required to treat the damages as having been $20,000. (The situation is different, incidentally, when it comes to evaluating offers to settle. There, the Insurance Act deductibles are taken into account. This is discussed in one of our posts from 2004.)

In this case, the plaintiff’s solicitor was seeking $52,470.50 in fees on a partial indemnity basis plus disbursements of $27,769.44, or $80,239 total. He had a contingency fee arrangement with the plaintiff, for payment of 20% of any amount recovered, plus any costs payable by the opposing party.

Justice Howden considered Rule 76.13(3) of the Rules of Civil Procedure. Rule 76 deals with the “simplified procedure” for cases where the claim is for $50,000 or less. Subrule 76.13(3) deals with the costs consequences of suing in ordinary procedure, where the amount awarded at trial turns out to be less than $50,000. That subrule provides, in effect, that if a plaintiff sues under ordinary procedure and receives less than $50,000 at trial, he or she shall receive no costs, unless the court is satisfied that it was nevertheless reasonable for the plaintiff to have sued under ordinary procedure.

As we have written in a post earlier this year, Ontario courts seem reluctant to deny costs under Rule 76.13(3). However, Justice Howden bucked that trend and ordered that the plaintiff in this case receive no costs. There was no question that the jury’s award of $20,000 was well below the simplified rules threshold of $50,000. (If the deductible had been taken into account, the actual recovery–$5,000–would have been less than the limit of Small Claims Court’s jurisdiction.)

His Honour went on to find that it was not reasonable, in this case, for the plaintiff to have sued under ordinary procedure. This was in part because the plaintiff had “significant pre-accident conditions similar to or the same as his complaints in this case” and also due to the absence of any convincing evidence to substantiate a loss of income claim. (Justice Howden also mentioned the plaintiff’s “flat demeanour” and the fact that one of the plaintiff’s own witnesses suggested that the plaintiff had understated his ability to play golf.)

 

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Court Orders that Neuropsychological IME be Videotaped

Posted on June 1, 2007 by Stephen Cavanagh

Mr. Justice Michael Quigley has ordered that a neuropsychological assessment sought by a defendant in a motor vehicle case, be videotaped. His Honour had been advised that the neuropsychologist whom the defence had retained was not prepared to undertake the examination on this basis, but he nevertheless concluded that, in the circumstances of this case, the videotaping requirement was reasonable.

In Dempsey et al. v. Wax, counsel for the plaintiff, who was seeking to have the court order that the examination be vidoetaped, had introduced evidence of a previous neuropsychological assessment, done on behalf of the AB insurer. That examiner had concluded that the plaintiff’s level of intelligence was 18 points lower than expected and that “[m]emory and new learning abilities were more severely affected with general memory being some 24 points below expectancy”. As well, there was evidence from the plaintiff’s family physician, that “because of Ms. Dempsey’s slow processing, inattention, and poor memory, it would be preferable for the neuropsychological assessing to be videotaped”.

There was no suggestion, in this case, that the defence neuropsychologist had any “defence orientation”. Rather, in agreeing that the examination should be videotaped, Justice Quigley seems to have been concerned primarily with the integrity and reliability of the evidence at trial, given the memory problems from which the plaintiff was suffering.

It should be noted that counsel for the plaintiff had undertaken that any neuropsycholgical assessments of this plaintiff that he might schedule, would also be videotaped.

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