Destructive Testing Protocols Should be Specific and Address Prejudice to Other Parties

By Megan Chan

In the recent Ontario Superior Court decision Logan v. Stryker Canada Corp., 2024 ONSC 6171, the court addressed a motion for an order under Rule 32 of the Rules of Civil Procedure.

Facts

A medical device, manufactured by one of the defendants, Stryker Canada Corp., was used in an emergency procedure to remove a blood clot from the brain of the main plaintiff, Evelyn Logan. During the procedure, the device fractured into two pieces. One part remained in Ms. Logan’s brain, while the other part was preserved for testing.

The part of the device that contained the fracture site (the “critical portion”) was very small, and as such, once the relevant tests were performed, the critical portion would be destroyed. Prior to testing, the critical portion must be “cross-sectioned”.

Prior cross-sectioning on a part of the device (the “extra wire”) had been conducted, but was unsuccessful, and ultimately destroyed part of the extra wire.

Positions of the parties

The plaintiffs sought to have a protocol for destructive testing of the device approved by the court, as well as to obtain an exemplar device to have additional attempts to perfect the cross-sectioning and destructive testing prior to conducting destructive testing on the critical portion of the device.

Stryker took the position that the cost of the exemplar device should be borne by the plaintiffs and opposed the destructive testing on the basis that none of the critical portion would remain viable for the defendants to further test if the plaintiffs’ testing was not reliable.

Issue

Should the court grant an order under Rule 32 authorizing the plaintiffs to inspect and test the device, and on what terms?

Law

Rule 32.01(1) The court may make an order for the inspection of real or personal property where it appears to be necessary for the proper determination of an issue in a proceeding.

(2) For the purpose of the inspection, the court may,

(a) authorize entry on or into and the taking of temporary possession of any property in the possession of a party or of a person not a party;

(b) permit the measuring, surveying or photographing of the property in question, or of any particular object or operation on the property; and

(c) permit the taking of samples, the making of observations or the conducting of tests or experiments.

Rule 32.01(3) empowers the court to impose terms on the testing as are just.

Where the testing is destructive, the proposed test must be one which appears to be necessary for the proper determination of an issue in a proceeding, per Rule 32.01(1). To establish necessity, the moving party must show that there is a reasonable possibility the proposed test will reveal something that will assist the trier of fact in determining an issue in the proceeding.

Even if necessity is established, the court retains its discretion in making orders for inspection. The court must consider whether the proposed test will impair the integrity of the property such that the party in possession of the property will be prejudiced at trial. If so, the court must balance this prejudice with the benefit to be derived from the test by the trier of fact.

Analysis

The plaintiff’s material science engineering expert gave evidence that the results of the proposed destructive testing would be highly likely to indicate the cause of the device’s failure. Without destructive testing, the court would not have the benefit of knowing a) the composition and morphology of the device at the point of fracture and b) whether the device failed because of an inconsistency, defect, or weakness at the point of fracture.

Stryker did not provide any contradictory evidence in this regard. The main issue Stryker had with the plaintiffs’ proposed destructive testing was that if cross-sectioning the critical portion of the device failed, its ability to rebut the plaintiff’s expert’s findings would be impossible.

Ultimately, the court found that the proposed destructive testing was necessary, but agreed that Stryker’s concern was valid, as the plaintiff’s proposed protocol for destructive testing did not provide details about how the cross-sectioning would be conducted. Further trials on sections were needed to determine a reliable method of cross-sectioning prior to cross-sectioning the critical portion of the device.

In order to balance the prejudice to Stryker with the benefit to be obtained from the destructive testing, the court ordered specific terms for the destructive testing. Stryker was to provide the plaintiffs (at the plaintiffs’ cost) with an exemplar device. The plaintiffs were ordered to complete all destructive testing on any extra wire and all non-destructive testing on the exemplar device.

After such testing, the plaintiffs were to provide Stryker with a specific proposed protocol for the destructive testing of the critical portion, supported by evidence from the previous testing demonstrating that the proposed protocol would achieve the desired outcome when applied to the critical portion. Stryker would then have 30 days to object to the proposed protocol for destructive testing.

Takeaway

Destructive testing must be necessary for the proper determination of an issue in the proceeding. Even if necessary, parties wishing to perform destructive testing on property should consider the potential prejudice to other parties in the proceeding and propose a plan for the testing with sufficient detail in order to convince the court that the prejudice does not outweigh the benefit of the testing.