Judge slams top pathologist over testimony
The reputation of Dr. Michael Pollanen, Ontario’s much- praised chief forensic pathologist, has taken a blistering hit from an Ontario Superior Court judge who is sharply critical of his testimony in recent criminal proceedings.
Judge Anne Molloy Wednesday delivered written reasons for her oral decision, issued from the bench, in pre- trial motions in the second- degree murder trial of Joel France.
In her decision, Molloy found Pollanen “had failed to properly prepare before testifying,” yet nonetheless “expressed an opinion with certainty,” offered opinions beyond his area of expertise, “looked for ways” to support that hastily taken position and “started from a position that this was a case of abuse.”
Her findings echo some of those of the Goudge inquiry, in which former appeal court judge Stephen Goudge blasted the province’s forensic services after flawed child death investigations led by former Hospital for Sick Children pathologist Dr. Charles Smith.
Goudge found that Smith had made false and misleading statements in court and exaggerated his expertise.
Molloy prefaced her findings by noting that she considered “t he cautionary tale of now disgraced ( Dr. Smith), a pathologist whose testimony as an expert witness resulted in numerous miscarriages of justice,” and quoted a scholarly article on the lessons of the Goudge inquiry in which Pollanen was cited as an authority.
“Ironically,” she said, she found that Pollanen himself displayed some of the biases experts should be wary of and which Pollanen once said experts could displace by paying attention to peerreviewed literature.
While she said “I do not question the professional expertise of Dr. Pollanen, nor do I doubt his integrity,” Molloy wrote, “… he himself ran afoul of some of these very same principles.
“It is a compelling illustration of how easy it is to fall into these errors and how cautious lawyers and judges must be in evaluating such evidence.”
She also found that Pollanen was “evasive and disingenuous” in one particular area.
Her findings are bound to send ripples of shock in defence lawyer and prosecution circles, as the well- regarded Pollanen is widely credited with bringing what he once told the Toronto Star was “a culture of accountability” to the forensic service.
It’s probably fair to say that he was previously considered an untouchable expert.
Pollanen himself, reached by email late Wednesday, told Postmedia he hasn’t “seen the ruling in this case. I will need to review it” before commenting.
He had testified before Molloy in January in a voir dire about the death of twoyear- old Nicholas Cruz, the baby of France’s live-in partner Marleny Cruz. The little boy died as a result of septic shock secondary to injuries to his intestines, and was dead by the time Cruz and France brought him to hos- pital on July 14, 2013.
Pollanen’s anticipated evidence at trial — that the little boy’s injuries could not have been caused by a fall — was the linchpin of the Crown’s theory that France had administered the fatal blow and had had murderous intent. After all, Pollanen had testified to just that once before, in March, 2015, at France’s preliminary hearing.
But at the pre- trial motion before Molloy, Pollanen produced a supplementary report the day before he took the witness stand.
In it, he purported to have surveyed the medical literature on children’s abdominal trauma and concluded, again, that such injuries are usually caused by blows to the abdomen.
This time, he granted that it was possible Nicholas’s injuries could have been caused by “an unprecedented accident … but it is improbable.”
But in a devastating crossexamination by France’s defence lawyer, Nathan Gorham — which Molloy took pains to praise and credit for bringing to light problems with the doctor’s testimony — Pollanen acknowledged he hadn’t in fact reviewed the literature.
And when Gorham presented him with a bound volume of 26 scholarly published articles on abdominal trauma causing injury to the bowels, Pollanen acknowledged he’d not seen 23 of them — and many showed examples of children sustaining perforations of the intestines after falls from a short height.
“It was only as a result of extensive independent research by defence counsel and a very skilled crossexamination by Mr. Gorham that the weaknesses in Dr. Pollanen’s evidence came to light,” the judge said.
She added, that’s the problem “with highly polished expert witnesses who wander off their area of expertise or who offer opinions without any scientific basis. They appear to be knowledgeable in areas about which they have no expertise, even when they are not.”
At the January pre- trial, Molloy ruled that while prosecutors could call Pollanen as a witness at trial, and he could provide his expert opinion on the cause of Nicholas’s death and the nature of the other injuries, such as bruising, he had sustained, she placed strict boundaries upon his testimony.
He wouldn’t be allowed to testify as to whether an assault was more likely, or express his opinion on whether an accidental fall had caused the child’s injuries.
Pollanen would also have to tone down his language, and avoid loaded terms such as “significant” in describing the degree of force used.
It was after the judge’s oral ruling that prosecutors and defence reached a negotiated agreement, a plea bargain.
France pleaded guilty to the lesser offence of manslaughter based on his failure to get Nicholas medical treatment. The little boy’s mother, Cruz, earlier pleaded guilty to the same offence.
Molloy reserved her decision on which of the adults may have killed Nicholas.
IT WAS ONLY AS A RESULT OF EXTENSIVE INDEPENDENT RESEARCH BY DEFENCE COUNSEL AND A VERY SKILLED CROSS-EXAMINATION BY MR. GORHAM THAT THE WEAKNESSES IN DR. POLLANEN’S EVIDENCE CAME TO LIGHT. — JUDGE ANNE MOLLOY, ONTARIO SUPERIOR COURT