Even white knights are answerable
Ontario’s head forensic doctor grilled in court
To borrow from the immortal words of the Talking Heads in Once in a Lifetime, “And you may ask yourself, well, how did I get here?”
How can it be that almost a decade after the Goudge inquiry released its report into the messy trail left behind by former SickKids’ pathologist Dr. Charles Smith, the white knight who rode in to build Ontario a new forensic service and save the day is now being asked uncomfortably familiar questions?
The white knight, of course, is Dr. Michael Pollanen, Ontario’s chief forensic pathologist since 2006, the year that allegations about Smith reached a critical mass and prompted a sweeping coroner’s review. It found that Smith had reached dubious conclusions of foul play in 20 child autopsies, some of which ended in wrongful convictions.
That in turn led to the Goudge inquiry, headed by now-retired Ontario Court of Appeal Justice Stephen Goudge, who concluded in 2008 that Smith had “actively misled” his superiors, “made false and misleading statements in court” and exaggerated his expertise.
Compare that to the language reluctantly used last month by Ontario Superior Court Justice Anne Molloy to describe Pollanen.
She found that he had failed to properly prepare before testifying and “nevertheless expressed an opinion with certainty”; had “offered opinions beyond his area of expertise”; looked for ways to shore up those opinions; and “started from a position that this was a case of abuse, which he then sought to prove.”
In other words, Molloy was suggesting, like his disgraced predecessor Smith, Pollanen did not approach the case with an open mind and was “thinking dirty.”
The former boy wonder — he hung out at the old forensic pathology department as a teenager — had testified before Molloy in a voir dire at the trial of Joel France.
The 39- year- old France was accused of second- degree murder in the July 14, 2013 death of two-yearold Nicholas Cruz, the child of his live-in girlfriend.
At the preliminary hearing in October of 2014, Pollanen testified that the lethal injury to the little boy — he died of septic shock, secondary to a rupture of his intestinal wall — had been caused by “a significant force,” likely a “punch, a kick or a stomp” to his abdomen.
In cross- examination he flatly told France’s lawyer, Nathan Gorham, that a short fall, say from the edge of a crib, could not have caused the injuries.
Pollanen brought up the fact that “this is actually an area that has been studied in the medical literature. It’s — in the medical literature; you look (it) up ...”
And that literature, Pollanen said, showed that “falls in childhood are innocuous. They’re trivial.” He was unequivocal. But Gorham did what he suggested, and reviewed the literature, and by the time Pollanen testified at the pre-trial before Molloy, Gorham had his ducks in order.
Pollanen brought a new supplementary report with him, which he said he wrote to survey the literature and answer the hypothesis that a short fall could have caused the little boy’s injury.
But in cross- examination, Gorham asked that very question. Pollanen said it was possible, but that in his opinion it had not.
Gorham then showed him a volume of 26 scholarly articles, many of which cited examples of children suffering perforated intestines after falls from a short height.
Pollanen hadn’t seen 23 of them before.
He acknowledged his answer at the preliminary heari ng was wrong, and t hat he hadn’t looked at the literature. Molloy was clearly shocked.
As she put it once, “he started his task with the mindset that this child had been the victim of assault and he approached everything thereafter from that mindset, including his testimony in court ...”
She also pronounced Pollanen’s answers around how long he’d belatedly spent doing the literature review “evasive and disingenuous.”
Molloy ruled he couldn’t give his opinion on whether an as-
BUT WHAT IS MOST INTERESTING IN HINDSIGHT IS HOW CAREFULLY POLLANEN ANSWERED QUESTIONS ABOUT HIS CREDENTIALS FROM AMANI OAKLEY, THEN A WET-BEHIND-THE-EARS LAWYER REPRESENTING THE LEWIS FAMILY. — CHRISTIE BLATCHFORD
sault had caused the boy’s injuries and couldn’t say the required force was “significant” — a decision that knocked the stuffing out of the Crown’s theory that France deliberately administered the fatal blow. After the ruling. prosecutors and defence lawyers reached a plea bargain, with France pleading guilty to manslaughter for failing to get Nicholas medical help.
It was a bolt out of the blue — a stunning, uncharacteristic and eerily familiar flaw in a man who prided himself on being the anti- Charles Smith.
Yet there were early signs that some of the same trappings that led to Smith becoming virtually unassailable in court for so long — deferential if not reverential treatment, a growing self- confidence and the simple fact that scientists can often bedazzle lawyers with scientific language — may have been in play for Pollanen too.
In 2002, a Baltimore lawyer named J. Wyndal Gordon filed a formal complaint against Pollanen with the College of Physicians and Surgeons of Ontario, alleging that Pollanen had “attempted to mask his credentials and deceive others” by not explicitly declaring that he was at the time a postgraduate student and visiting medical examiner training at the Chief Medical Examiner’s Office for Washington.
It was only while he was there, in 2001, that his licence to practise kicked in.
Pollanen had testified about the cause of death in a so-called “shaken baby” case that sent a man to jail. (He was re-tried last year and was convicted again.)
It’s unclear what, if anything, happened as a result of the complaint. College spokeswoman Kathryn Clarke said this week that unless a screening committee has concerns and refers the matter to a hearing, complaints aren’t made public. “Dr. Pollanen,” she said, “does not have a complaints/discipline history reportable on the public register.”
In 2002, Pollanen testified at the coroner’s inquest into the death of Lana Lewis, a 45-year-old Toronto mother of three who died on Sept. 12, 1996, about two weeks after her last visit to her chiropractor for a neck manipulation.
In the course of the sometimes heated and controversial case, Pollanen changed his opinion as to the cause of death: he first said the death was linked to chiropractic neck manipulation, then said it wasn’t. But what is most interesting in hindsight is how carefully Pollanen answered questions about his credentials from Amani Oakley, then a wet-behind-the-ears lawyer representing the Lewis family.
She asked about his testimony in other criminal cases and said, “So they ( the courts) were aware you were a student?” to which Pollanen answered, virtually each and every time, “My CV was presented at each occasion where I gave evidence.”
Oakley’s point — and she was berated for it by the other lawyers, most of whom represented individual chiropractors or their professional bodies — was that he’d “permitted assumptions to stand … that he was qualified in areas he was not.”
Several lawyers even demanded she be forced to apologize to the jury for daring to question Pollanen’s expertise.
In the end, the jurors deemed Lewis’s death an “accident,” meaning they believed it was linked to the chiropractic treatment she’d had.
Pollanen hasn’t yet commented upon Molloy’s criticism and is out of the country until Monday.
However, Dr. Toby Rose, Ontario’s deputy chief forensic pathologist, said that it isn’t just pathologists’ reports that are subject to peer review, but also “court transcripts following expert testimony of forensic pathologists, which will be the case in this instance as well.”
She said, “I also want to stress that (we take) all judgments by the courts very seriously,” and that in addition, complaints and concerns are reviewed by the Death Investigation Oversight Council, an oversight body.