BC Supreme Court Criticizes Defense Doctor Who "Crosses the Line"

In what is not the first time, a psychiatrist who is frequently retained in the defense of personal injury lawsuits was criticized by the BC Supreme Court for crossing the line from impartial opinion to prohibited ‘advocacy‘.
In today’s case (Bricker v. Danyk) the Plaintiff was involved in a 2011 collision and sustained physical injuries with psychological repercussions.  The Defense hired a doctor who minimized the connection of the Plaintiff’s psychological difficulties to the collision.  In rejecting this evidence and finding the defense doctor ‘crosses the line‘ Mr. Justice Skolrood provided the following critical comments –

[118]     It is useful at this point to address Ms. Bricker’s submission that the court should place little weight on Dr. Levin’s opinion which she submits constitutes advocacy rather than expert opinion. She points in particular to numerous places in Dr. Levin’s report where he appears to editorialize about answers given by Ms. Bricker during his interview of her in a manner that suggests a pre-determined outcome.

[119]     Much of the editorializing complained of by Ms. Bricker is directed at questioning whether Ms. Bricker’s complaints are sufficiently serious to meet the diagnostic criteria for PTSD and Major Depressive Disorder and, in this regard, Dr. Levin raises valid issues. However, I agree with Ms. Bricker that the overall focus and tenor of his report, as well as his evidence at trial, crosses the line of what is proper for an expert witness and strays into advocacy.

[120]     Without going into great detail about his evidence, some excerpts from his report are illustrative:

a)    at p. 4 Dr. Levin suggests that Ms. Bricker has not reported any neurobehavioral or neurocognitive symptoms that “would even remotely be suggestive of any underlying concussive brain injury”;

b)    at p. 4 of Appendix A, where he records the results of his interview of Ms. Bricker, Dr. Levin refers to the “significant discrepancy” between her report to him and chiropractic records of past treatments;

c)     at p. 5 of Appendix A, he editorializes that the fact that Ms. Bricker enjoys watching National Geographic television programs involving sharks is inconsistent with someone complaining of anxiety; and

d)    at p. 5 of Appendix A, he again editorializes that Ms. Bricker’s description of her range of interests is “clearly not suggestive” of someone suffering from a major depressive disorder or PTSD.

[121]     While these are but a few examples, they reflect the argumentative nature of his report. I agree with Ms. Bricker that Dr. Levin’s evidence in its entirety lacks the degree of objectivity expected of an expert witness. For that reason, I attach no weight to his report.

Advocacy in the Guise of Opinion, bc injury law, Bricker v. Danyk, Mr. Justice Skolrood

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ERIK
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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