An expert opinion sent two parents to jail for their daughter’s death. Now the case has fallen apart and Ontario’s top pathologist is under scrutiny — again

A high-profile child homicide case has fallen apart after testimony from Ontario’s top pathologist Dr. Michael Pollanen led to an accusation that he “deceived the criminal justice system.”

Manslaughter charges against Sean and Maria Hosannah in the death of their two-year-old daughter Matinah were withdrawn in late March, ending a years-long ordeal for the parents. They spent time in jail after their initial conviction and have always maintained their innocence.

Just days into a pretrial hearing, where the Hosannahs were challenging the admissibility of the medical evidence underpinning the charges against them, the case collapsed. Pollanen was the first and only witness to take the stand.

At the Hosannahs’ original trial, Pollanen had dismissed alternative explanations for Matinah’s severe vitamin and protein deficiencies, such as genetics. Under cross-examination at a hearing before the Hosannahs’ new trial, the pathologist conceded that a “cascade” of events involving genetics and other factors was “reasonable” and couldn’t be ruled out.

He acknowledged that he hadn’t read the relevant medical literature closely enough to be able to make an informed opinion on its plausibility.

‘A miscarriage of justice’

Defence lawyer Nathan Gorham, who represents Matinah’s father, said this case is a “cautionary tale” about “how flawed expert evidence can contribute to a miscarriage of justice.”

“Better safeguards are needed to prevent inaccurate expert opinions from distorting the search for a true verdict in a criminal trial,” Gorham told the Star.

The Crown’s decision to drop the charges means the court will not rule on the medical evidence, leaving unanswered questions about what happened to Matinah.

Crown lawyer Eric Taylor, who has prosecuted the case from the beginning, told the court that it was no longer in the public interest to carry on. He said his decision was not related to the concerns about Pollanen’s evidence, and defended the pathologist.

Pollanen did not respond to calls and emails requesting comment for this story. A spokesperson for the solicitor general, which is responsible for Ontario’s death investigation system, said the ministry does not comment on statements that have been made by the defence in court filings.

Pollanen’s appointment meant to restore public confidence

For those accused of murder, Pollanen’s opinion can often be the difference between freedom and imprisonment. As Ontario’s chief forensic pathologist, he routinely testifies in complex homicide cases; he estimated in the pretrial that he has given evidence in court at least 250 times.

Pollanen’s 2006 appointment as top pathologist was meant to help restore public confidence in Ontario’s justice system after the devastating wrongful-conviction scandal involving disgraced pathologist Charles Smith. The Hosannahs’ case is one of several in recent years that have exposed serious concerns about Pollanen’s expert opinions.

Standing outside the courthouse after the hearing ended, Matinah’s father said, “This is surreal.”

“We knew all along that this was going to happen eventually, that justice would come,” he said.

The Hosannahs were convicted of killing Matinah in 2014 and served nearly eight months in jail before they were released on bail, pending appeal. They lost custody of their other children and are currently facing a criminal charge in relation to one of Matinah’s surviving siblings in a case that also involves allegations of malnutrition.

They intend to plead not guilty, Gorham said, and are fighting to get their kids back.

“The whole saga for them is linked to Dr. Pollanen’s opinion,” Gorham told the Star.

Experts cast doubt on Pollanen’s conclusions

Pollanen performed the autopsy in 2011 and asserted that Matinah died from an asthma attack and malnutrition, the result of not getting enough food, or enough of the right food. At the original trial, Pollanen told the jury that he had “ruled out” alternative explanations for the severe protein and vitamin deficiencies found in the 27-month old when she died.

Fresh medical evidence casting doubt on Pollanen’s conclusion, contained in two expert reports, prompted the Ontario Court of Appeal to overturn the Hosannahs’ convictions in 2020 and order a new trial.

At the recent hearing, Gorham repeatedly pressed Pollanen.

“Surely, you must recognize that in a homicide case like this, you didn’t do enough research to express an opinion.”

“I disagree,” Pollanen replied. “I believe the opinion I gave was reasonable.”

In a court filing before the Crown dropped the charges, the Hosannahs’ lawyers slammed Pollanen for allegedly denying “his own failures” and refusing “to admit things that were obviously true.”

They alleged he “caused a miscarriage of justice” and argued the proceedings should be stayed, due in part to Pollanen’s evidence, which they alleged, “offended basic notions of fairness.”

“People believed him because his title implied that he was an elite expert, because he was convincing and charismatic, and because the medical and scientific issues on the case made it difficult to detect the dubious underpinnings of his opinion,” wrote lawyers Gorham and Selwyn Pieters, who represented Matinah’s mother.

Pollanen is a ‘qualified’ expert, Crown says

Taylor, the Crown lawyer, defended Pollanen as a “properly qualified” expert, whose opinion “would be admissible.” He said he did “not share” the view expressed by the defence lawyers that the pathologist “intentionally misled or deceived the court.”

Taylor said there were still “triable issues” around whether the Hosannahs appropriately sought medical attention for Matinah before her death, and that there remained “a reasonable prospect of conviction with respect to the charge” of failing to provide the necessities of life. He said he had concluded that it was no longer “in the public interest” to pursue the prosecution, “Given the passage of time and given the fact that the Hosannahs have been otherwise” held accountable “for the death of their daughter.”

At their 2014 trial, the jury heard that the Hosannahs followed a strict vegetarian diet that consisted of healthy food and that they were distrustful of doctors. However, the parents have always insisted that they sought appropriate medical treatment for their daughter and fed her a balanced diet.

When Matinah died, the family home was clean, the fridge was stocked with nutritious food, including milk and eggs, say court documents filed by their lawyers in the recent pretrial hearing.

Still, the lawyers argued, “doctors became suspicious that Matinah’s parents, a young black couple, had abused their daughter and contributed to her death” and said that, in this case, the court should “be mindful of the dangers of racial bias and systemic, unconscious discrimination.”

What caused Matinah’s death?

Pollanen’s conclusions in the case started to unravel during the Hosannahs’ appeal.

After another forensic pathologist challenged Pollanen’s opinion that an asthma attack had contributed to Matinah’s death, Pollanen conceded that the evidence didn’t show signs of acute asthma.

Gorham’s cross-examination of Pollanen focused on an expert report by Dr. Marvin Miller, an Ohio-based pediatrician and genetics specialist.

Pollanen had received Miller’s report at least three years ago, when it was included as part of the “fresh evidence” that led the court to overturn the Hosannahs’ convictions and order a new trial.

Miller disagreed with Pollanen’s assertion in his autopsy report that “there was no evidence of an underlying disease” to explain the malnutrition or Vitamin D deficiency rickets found in Matinah, a condition that weakens the bones. He refuted Pollanen’s interpretations of the evidence, providing alternative medical explanations for the various findings that had led Pollanen to conclude she had not gotten adequate food.

Pollanen agreed that the 20 medical journal articles and other literature that Miller referenced in his report seemed relevant, but he said he didn’t know if he’d read any of them.

At that point in the appeal, Gorham continued, Pollanen would have understood that the Hosannahs had been convicted of manslaughter, and that they intended to use this expert report, which directly challenged his opinion, to argue that their convictions should be overturned.

“Did it ever occur to you that given the magnitude of the situation it was something that ought to be done that you review the literature included in (the expert) report?” Gorham asked.

“It occurred to me, but we have to stay in our area of expertise,” Pollanen replied, noting that he is not a pediatrician. “I thought it was more appropriate that another expert should do it.”

At the outset of the pretrial hearing, Pollanen testified that Matinah’s death investigation was “maximally” complicated. He agreed that reviewing the relevant medical literature is an important component in ensuring objectivity in the evidence-based approach to death investigations that he has espoused.

Miller’s opinion informed the alternative explanation for Matinah’s death that Gorham proposed during his cross-examination, which Pollanen acknowledged was “reasonable.”

Pollanen’s expert opinions have drawn scrutiny, criticism

In the aftermath of the scandal involving Smith, whose flawed autopsy analyses tainted more than a dozen criminal cases, Pollanen played a key role in helping to overturn wrongful convictions. He is credited for bringing objectivity and an “evidence-based approach” to the province’s forensic pathology service, whose experts are entrusted with the difficult work of searching a body for clues to render an opinion about what caused a death.

However, Pollanen has been accused of falling into some of the same traps that led to the miscarriages of justice he has worked to rectify. In 2017, a superior court judge denounced him for offering “expert opinions on matters that were not appropriate, not within his knowledge and expertise, and incorrect” about the death of two-year-old Nicholas Cruz.

His role in the death investigation of another infant has also come under intense scrutiny, in a battle that is still playing out in court. The pathologist who performed the autopsy and believed mysterious fractures found on the boy were the result of a bone disease, alleges that Pollanen abused his power to overrule some of his colleagues and change the cause of death to child abuse. The parents in the “baby Alexander” case were blamed for the fractures and separated from their surviving children.

In that case, Pollanen has argued it was his duty to get involved in the investigation, and try to resolve the disagreement between the doctor who performed the autopsy and other doctors including a child abuse pediatrician. The police saw no evidence of abuse.

These cases show the concerns about Pollanen are “an ongoing and systemic issue,” Gorham and Pieters asserted in a court filing.

The Hosannahs were “publicly shamed” following their conviction, their lawyers said. The Star named the parents after it successfully fought in court to narrow a publication ban, which had been in place to protect the privacy of Matinah’s surviving siblings.

The Hosannahs will now be added to the Canadian Registry of Wrongful Convictions, said Kent Roach, a University of Toronto law professor, who launched the database earlier this year. The registry does not judge innocence but logs all cases where a conviction is overturned “based on new matters of significance related to guilt.”

Rachel Mendleson is a Toronto-based investigative reporter for the Star. Follow her on Twitter: @rachelmendleson