"Miscontruction of the Facts" Leads to Expert Opinion Rejection

Earlier this month I discussed the “Garbage In Garbage Out” Principle which basically means an expert opinion based on flawed facts is of little value to the Court.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry demonstrating that an opinion based on misconstrued facts is not helpful.
In today’s case (Gillespie v. Yellow Cab Company Ltd.) the Plaintiff was involved in two collisions and sustained a head injury.  He suffered from ongoing cognitive problems at the time of trial and damages of $85,000 were assessed for his non-pecuniary loss.
The Defendants argued that the Plaintiff did not sustain a head injury but instead suffered from a “metabolic syndrome” unrelated to the crash.  In rejecting this opinion the Court noted that the Defendant’s expert’s report was based on flawed facts and provided the following reasons:

202]     Dr. Eisen’s report described both accidents as being “of a mild nature”.

[203]     He did not view photographs of the plaintiff’s car in the first accident until after he presented his report. He was not aware his car was a total loss or that there was $4,900 damage to the taxi and $6,900 damage to the cube van. Although the doctor described the plaintiff’s windshield as “shattered” he did not know where he obtained that information.

[204]     Although the second accident was evidently quite minor, in my view, Dr. Eisen was clearly in error in describing the December 2009 accident this way. Although no questions were asked to clarify “mild” “moderate” or “severe” the evidence points to the first accident being in the range of two moderate collisions involving two impacts. Dr. Eisen did not view the photographs of the damage to the three vehicles nor understand the force of impact that led to Mr. Gillespie striking his head. The apparent damage to all three vehicles, the blow to his head, and the description of the impacts during the accident are inconsistent with Dr. Eisen’s conclusion that this was a mild impact collision.

[205]     In this regard I conclude that Dr. Eisen’s opinion was based on a clear misapprehension of the accident and the injury mechanism. This factor alone diminishes the weight of his report.

[206]     The evidence is uncontroversial that Mr. Gillespie’s head struck and shattered the windshield in spite of the airbag deploying.

[207]     I observed that Dr. David concluded that Mr. Gillespie’s inner ear dysfunction occurred because of direct impact, acoustic trauma from airbag deployment, and the explosive forces associated with airbag deployment.

[208]     Dr. Eisen formed his opinion that Mr. Gillespie’s ongoing cognitive symptoms following the accident are the product of metabolic syndrome based on his assumptions that Gillespie’s past and ongoing health included evidence that he was diabetic and had impaired glucose function, was obese, had untreated hypertension, and had impaired lipid metabolism. He described his condition of metabolic syndrome on the basis of those four factors…

[211]     Not only was the expert’s opinion based on a clear misapprehension of the accident and the initial injury mechanism but also, in the end, Dr. Eisen’s analysis of the underlying data was so flawed that his opinion that the plaintiff suffered from metabolic syndrome is markedly unreliable…

[217]     However, Dr. Eisen seems to have ignored that Dr. Levis, Fraser Health Concussion Clinic and Dr. Foti recorded the plaintiff’s complaints of short-term memory loss, reversing numbers, headaches, dizziness, and difficulty word-finding from December 21, 2009 until October 2011. Clearly, his cognitive problems persisted throughout the months after the accident without abatement; they did not re-emerge 11 -12 months later as assumed by Dr. Eisen. This error by Dr. Eisen relating to his ongoing cognitive impairment would likely have affected his opinion if he had relied on more accurate information.

[218]     Dr. Eisen’s misconstruction of the facts leading to his conclusion that the plaintiff did not suffer a head injury in December 2009 is a significant flaw in his opinion. Further, his opinion that Mr. Gillespie developed unrelated cognitive problems in 2011 because he was experiencing metabolic syndrome is not supported by the facts or his own opinion that some of the indications of Mr. Gillespie’s altered state of mind in the interval after the accident were indications of an accident related to mild traumatic brain injury.

[219]     … I treat his report with little to no weight…