"Partisan" Experts Criticized and Rejected by BC Supreme Court

Adding to this site’s archives of judicial criticism of expert evidence, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, rejecting the evidence of two experts the court found gave evidence in a ‘partisan’ fashion.
In today’s case (Thompson v. Helgeson) the Plaintiff was involved in a 2012 collision that the Defendant admitted liability for.  In the course of the lawsuit the Plaintiff was assessed by several experts including two psychiatrists, one retained by the Plaintiff and the other by the Defendant.  The Court gave “no weight to either” finding they were partisan in their evidence.  In rejecting these opinions Mr. Justice Sewell provided the following reasons:

[72]         There is a disagreement between Dr. Ancill and Dr. Levin over whether Ms. Thompson suffers from any recognized psychiatric illness related to the Accident.

[73]         Dr. Ancill and Dr. Levin agree that Ms. Thompson does not suffer from post-traumatic stress disorder. However, they disagree on whether she suffers from any recognized psychiatric disorders.

[74]         Dr. Ancill diagnosed Ms. Thompson with the following conditions:

1.  Post-Concussion Syndrome with Mild Traumatic Brain Injury;

2.  Mild Neurocognitive Disorder arising from a Traumatic Brian Injury;

3.  Adjustment Disorder with anxiety-chronic type;

4.  Major Depressive Disorder-moderate-severe, chronic; and

5.  Somatic Symptom Disorder.

[75]         Dr. Levin’s opinion is that Ms. Thompson does not meet the criteria for any recognized psychiatric disorder.

[76]         I have reservations about the evidence of both Dr. Ancill and Dr. Levin. I found both of them to be somewhat partisan in their opinions.

[77]         I do not accept that Ms. Thompson is suffering from five psychiatric disorders as opined by Dr. Ancill. I have already concluded that she does not have post-concussion syndrome or a brain injury. Having reviewed Dr. Ancill’s report, I am unable to conclude that he took a balanced and unpartisan approach to assessing Ms. Thompson’s mental state.

[78]         On the other hand, Dr. Levin rejected the notion that Ms. Thompson suffered from any psychiatric conditions arising from the Accident and attributed any complaints she had to her pre-existing depression.

[79]         As with Dr. Ancill, I considered the tone and content of Dr. Levin’s report to be very adversarial. In his report, he repeatedly referred to what he described as inconsistencies in Ms. Thompson’s statements to him during her interview. However, on cross-examination, he was forced to agree that these inconsistencies were clarified by Ms. Thompson later in her interview. In addition, he provided no explanation as to why Ms. Thompson has developed the headaches that are her chief complaint and in fact, paid scant attention to their existence.

[80]         I also found Dr. Levin to be argumentative and at times non-responsive in the answers he gave on cross-examination. One example of this was his answers with respect to whether Ms. Thompson met the criteria for Somatic Symptom Disorder with Pain. In his report he said the following:

48.       I defer an opinion about Ms. Thompson’s physical injuries sustained in the subject MVA to specialists in internal medicine and orthopaedic surgery. However, from a psychiatric perspective, Ms. Thompson did not present with a catastrophic perception of her injuries, pervasive preoccupation with pain or excessive time consuming activities trying to manage her pain to the extent that she would be diagnosed with chronic pain disorder as a psychiatric condition currently described in DSM 5 under the rubric of somatic symptom and related disorders.

[81]         When counsel pointed out that the DSM 5 criteria for Somatic Symptom Disorder stated that a catastrophic perception of injuries was only possibly present, Dr. Levin gave unresponsive answers and failed to acknowledge the obvious meaning of the passage in the DSM 5 that he was being asked about.

[82]         Finally, Dr. Levin was the only witness of the many expert and lay witnesses who opined that “Ms. Thompson appeared as an optimistic, future-oriented, and at times cheerful woman who reported her unimpaired ability to enjoy herself and make other people laugh.” Based on Ms. Thompson’s evidence at trial, my own observations of her and the evidence of every other witness who commented on her post-Accident condition, I simply cannot accept that she presented herself to Dr. Levin in that manner.

[83]         I therefore conclude that Dr. Levin lacked the required impartiality and objectivity to provide reliable evidence about Ms. Thompson’s post-Accident condition.

[84]         With regard to the reports of both Dr. Ancill and Dr. Levin, I also do not find it particularly helpful to know whether Ms. Thompson meets the criteria for specific psychiatric disorders set out in the DSM 5. In assessing damages, the question is whether Ms. Thompson’s symptoms are genuine, whether there is a substantial connection between those symptoms and the defendant’s negligence, and the effect that those symptoms have had on the plaintiff.

[85]         After reviewing both opinions, I give no weight to either. It seemed to me that Dr. Ancill was going out of his way to identify every possible mental illness suggested by Ms. Thompson’s reported symptoms, while Dr. Levin seemed anxious to convey the impression that Ms. Thompson was in no distress whatsoever.