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“Biased” ICBC Expert Report Excluded From Evidence

Reasons for judgment were recently published by the BC Supreme Court, Vancouver Registry, ordering that an ICBC expert’s report was biased and not admissible at trial.

In the recent case (Didyuk v. Redlick) the Plaintiff was involved in three motor vehicle accidents and was claiming damages.  In the course of the lawsuits ICBC used their power to send the plaintiff to an independent medical exam.  This resulted in their expert authoring a report making numerous negative comments about the plaintiff’s credibility.  In finding that expert was outright biased and not allowing the report into evidence Madam Justice Ahmad provided the following reasons:

[25]         In my view, Dr. Hawkeswood’s report contains a number of examples in which he usurps the court’s role by making very clear assessments of credibility:

a)    At page 5, lines 131 to 132, he states:

. . . based on my observations, I question Mr. Didyuk’s honesty with reporting of his symptoms. In other words, I strongly feel he was misleading me.

b)    At page 5, lines 133 to 139, he provides an opinion that the plaintiff was malingering. He states:

Based on the above, I question the reliability of all of his subjective symptoms. The preponderance of DSM-V criteria are predicated on authentic subjective mental health complaints. I am not convinced he has significant psychopathology, based on reasons provided already. Malingering seems like an appropriate term, recognizing this is impossible to prove one way or another. I nonetheless believe malingering probably does actually exist in some select instances and, based on my relatively lay understanding of this challenging concept, it would seem appropriate here.

c)     Also on page 5, lines 169 to 170, he states:

Frankly, Mr. Didyuk’s dramatic presentation during today’s assessment raises the question of what injuries he actually sustained by way of these three minor . . . vehicle accidents.

d)    At  page 7, with respect to the plaintiff’s medication use, he says “In all honesty, I actually question whether he is taking all of these pills . . .” Nonetheless, he provides a treatment plan, “If Mr. Didyuk is truly taking all of these pills on any given day” [Added emphasis]; and

e)    At page 8, line 260 to 261, describing what he referred to as “objective features of this case”, Dr. Hawkeswood referred to the “fact that [the plaintiff] presented as being more physically disabled than he probably is outside of the clinical setting.”

[26]         I am satisfied that each of those comments goes to the ultimate issue of the plaintiff’s credibility, which falls within a recognized category of exclusionary rules that precludes an expert from opining on credibility. Not only does it usurp the role of the trier of fact, it simply is not necessary. Those Mohan factors are not met.

[27]         The defendants do not argue that Dr. Hawkeswood does not make assessments of credibility. However, to the extent that assessment does not meet the Mohan criteria, they say it is not enough to exclude the report in its entirety. They say that any transgressions can be cured by redacting those portions of the report that refer to the plaintiff’s credibility. They argue that, this not being a jury case, I, as a judge alone, am able to give the evidence appropriate weight or disabuse myself of the credibility assessment altogether.

[28]         Whether it is within the court’s discretion to excise the offending comments in the report, in the circumstances of this case, I do not have to decide. Rather, I am satisfied that other problematic issues with the report, that I will discuss below, together with the assessments of credibility, make it appropriate to render the report as a whole inadmissible.

[34]         First, the fact that Dr. Hawkeswood considered it necessary or appropriate to comment and report on the plaintiff’s credibility is, in itself, an indication of partiality. However formed, those credibility findings were not based on any objective or measurable data. Their inclusion in the report indicates a bias against the plaintiff.

[35]         Second, the manner in which he obtained the facts on which he based his assessment of credibility, at least in part, is also problematic.

[36]         As noted above, prior to speaking to the plaintiff or conducting his formal physical examination, Dr. Hawkeswood observed the plaintiff while he was in the waiting room and at a time that the plaintiff was not aware he was being observed. The fact that those observations were made and were important enough to include in the report is significant in two ways.

[37]         First, it is not the role of an expert to find facts, and certainly facts outside their area of expertise. Rather, their role is to summarize the information that is provided and deliver an opinion based on the facts that are presented: Brough at paras 16 and 22.

[38]         Second, not only was this “fact finding” outside the scope of his role, it appeared to taint his view of the plaintiff and the conclusions he made, even before he had spoken with or conducted a physical examination.

[39]         His observations outside of the formal examination included, first:

He seemed concentrated and engaged in his [telephone] conversation, and did not appear to be obviously affected by any medical condition;

and secondly:

. . . he was wearing a leather jacket and his light‑coloured hair was combed backwards. My point is that he looked well.

[40]         He contrasted that with his assessment of the plaintiff’s appearance in the examining room:

His hair changed from being slicked back to now looking like he just woke up and got out of bed, dishevelled and matted forward on his forehead.

[41]         The implication of highlighting that contrast was to suggest that the plaintiff’s later appearance was disingenuous.

[42]         In addition to his own personal observations, Dr. Hawkeswood also recorded that his receptionist indicated to him that “[the plaintiff] may be a challenging patient”.

[43]         On the basis of his observations in the waiting room and third party information from the receptionist, Dr. Hawkeswood had concluded or implied, all without having spoken to or examined the plaintiff, that:

a)    the plaintiff was not “obviously affected by any medical condition”;

b)    the plaintiff was a “challenging patient”; and

c)     the plaintiff changed his appearance in a disingenuous attempt to exaggerate his condition.

[44]         Those conclusions seem to taint the rest of the doctor’s observations.

[45]         For example, after the formal physical examination commenced:

a)    Dr. Hawkeswood notes he “seems to pretend not to hear me at times”;

b)    Based on the physical examination, Dr. Hawkeswood reported that the plaintiff “would strike me as having a degree of depression”, however he does not base his conclusion on that point on the physical examination. Rather, based on his observations in the waiting room, Dr. Hawkeswood stated, “[He would] have a hard time concluding he looks overtly depressed.”

[46]         Dr. Hawkeswood’s fact finding even extended to speculation on the plaintiff’s sunglasses, of which he wrote:

What I find interesting is that the little plastic tab that holds the price tag is still attached to the glasses, making me wonder if he has ever needed to put them on before.

[47]         The doctor notes the plaintiff clarified using the glasses for light sensitivity. Nonetheless, he left the unstated implication that the plaintiff wore the glasses that day in a disingenuous attempt to exaggerate the issues he alleges arose from the accident.

[48]         Dr. Hawkeswood even goes further to state:

I note it was quite a sunny morning today and he definitely did not have his sunglasses on when I saw him earlier on.

[49]         In my view, that observation and implied conclusion were intended solely to cast the plaintiff in a negative light, much in the same way that an advocate at trial would do. That is, in my view, good evidence of Dr. Hawkeswood’s impartiality or partiality.

[50]         That he was not impartial in his view of the plaintiff is also evident in the language he uses to describe his physical examination of the plaintiff:

a)    at line 169, he describes the plaintiff’s presentation as “dramatic”;

b)    at line 610, he describes the plaintiff’s gait as “wildly exaggerated”; and

c)     at line 174, the phrase “legitimate musculoskeletal injuries” is used to imply the plaintiff’s injuries are not “legitimate”.

[51]         All of those observations could have, and should have, been described in neutral ways using objective metrics. Rather, he uses language that evidences negative judgment. In my view, the fact that Dr. Hawkeswood uses the descriptors he does, or at all, is a further indication of his partiality and the biased way in which he formulated his opinion.

[52]         The same is true of his characterization of the severity of the motor vehicle accidents, which he describes as being “minor” no less than four times, and on one occasion, as “a few minor fender benders”. While that characterization appears to be based on the ambulance crew report that formed part of the file, Dr. Hawkeswood does not address Dr. Kim’s records that include a speed estimate for the second collision of 50 to 60 kilometres per hour.

[53]         In my view, each of the passages and references set out above, disclose a willingness on the part of Dr. Hawkeswood to substitute objective data with his own subjective view of the plaintiff.

[54]         Combined:

a)    The “fact-finding” in the waiting room;

b)    The conclusions Dr. Hawkeswood made as a result of that “fact finding”;

c)     The language used to describe the plaintiff, his conduct and his injuries; and

d)    The inclusion of his assessment of credibility in the report.

make this a clear case in which there is a realistic concern that Dr. Hawkeswood is unable or unwilling to provide the court with fair, objective, and non‑partisan evidence.

[55]         The defendants have not established otherwise.

[56]         In my view, that concern permeates over the whole report.

[57]         For those reasons, as I have previously ruled, the Hawkeswood report dated February 16, 2021, including the addendum that was not before the court, is inadmissible in its entirety.

bc injury law, Bias, Didyuk v. Redlick, Madam Justice Ahmad