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Court Rejects "Particularly Problematic" ICBC Expert Witness

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Adding to this site’s archived case summaries addressing advocacy by expert witnesses, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, soundly criticizing an expert witness for a lack of objectivity.
In today’s case (La Porte v. Earl) the Plaintiff was involved in a 2010 collision that the Defendant admitted fault for.   She suffered physical and psychiatrist injuries as a result of the crash.  In the course of the crash the Defendant’s insurer sent her to a psychiatrist who marginalized any psychiatric injuries she had and their connection to the collision.
In rejecting this opinion Mr. Justice Sewell provided the following reasons:

[74]         After careful consideration I have concluded that I can give no weight to Dr. Levin’s report. There are a number of reasons why I have reached this conclusion. I begin by saying that I found that Dr. Levin’s report lacked objectivity. It seemed to me that Dr. Levin was marshalling evidence in favour of his conclusion, rather than attempting to communicate constructively with Ms. La Porte to determine her actual mental state.

[75]         Dr. Levin developed a number of themes that he repeated throughout his report. One such theme was to emphasize how resilient Ms. La Porte had been before the Accident, and to extrapolate that resilience into her reaction to the pain and anxiety that she experienced after the Accident.

[76]         At the outset of his opinion, Dr. Levin referred to Ms. La Porte’s pre-accident condition and began by emphasizing that Ms. La Porte did not present with any biological or psychological vulnerabilities that would have predisposed her to the development of any psychiatric illness.

[77]         In his report, Dr. Levin does not address the important question of the interrelationship of pain and anxiety. In fact, Dr. Levin mentioned Ms. La Porte’s reported pain only in passing. In addition, Dr. Levin does not appear to have elicited any details about what actually occurred on Ms. La Porte’s last day of work. The impression he portrays is that Ms. La Porte was managing her job without any difficulty up to the time she stopped working, and stopped working only in anticipation of having an increased workload in the fall of the year. The portion of his report dealing with this question at page 5 states as follows:

Ms. La Porte indicated that she went on a medical leave in anticipation (not yet experienced) of having an increased workload in the fall of this year that could affect her physical problems. Ms. La Porte stated that she would be upset when her dispatcher would give her a passenger with a heavy wheelchair or walker. Ms. La Porte, however, did not report an actual worsening of her reported pain or physical problems that could cause her any emotional suffering. In fact, while off work Ms. La Porte reportedly improved and was able to relax at home, at times baby-sitting her grandchildren. While discussing her current activities of daily living Ms. La Porte did not report any ongoing psychological or emotional disturbances of clinical significance that would affect her ability to return to her previous workplace or any other employment for which she is suited by her education and experience. When asked about her mood while baby-sitting for her grandchildren she said, “It’s good but I get tired faster…”. [Underline emphasis added.]

[78]         The foregoing summary is at marked variance to Ms. La Porte’s evidence in court that she struggled with the heavier physical demands of her job and the physical exertions of her job significantly worsened her pain. In addition, given Ms. La Porte’s evidence in court, which I have accepted, about the circumstances of her last day of work, I can only conclude that Dr. Levin did not inquire about those circumstances.

[79]         There were two portions of Dr. Levin’s evidence that I found particularly problematic. The first relates to this sentence at page 5 of the report: “Ms. La Porte indicated that she went on a medical leave in anticipation (not yet experienced) of having an increased workload in the fall of this year that could affect her physical problems.” When Dr. Levin was asked in cross-examination whether he had italicized the word “could” in this portion of his report to emphasize that there was no actual effect on Ms. La Porte’s physical problems, he denied that intent and stated that the italics were a clerical error. I find this answer to be lacking in credibility. In the context of the rest of that portion of his report, it is obvious that Dr. Levin was emphasizing that Ms. La Porte had not yet experienced any difficulty in coping with her work at the time she stopped working.

[80]         In addition, Dr. Levin implies in this passage that Ms. La Porte had not reported any effect that her job had on her physical problems. It is unclear whether he is suggesting she denied any negative effects or whether he based this statement on Ms. La Porte not volunteering any such information. If she told him that her job had no negative effects on her physical problems, it would have been contrary to what she told the other doctors who examined and treated her, as well as to her evidence before me, which I have accepted as credible. I therefore think it is highly unlikely that she denied any negative effects. I note that Dr. Levin did not indicate that he asked any questions about this subject in his interview of Ms. La Porte.

[81]         The second troubling evidence from Dr. Levin is found in his second report dated June 9, 2014. In that report Dr. Levin comments on the reports of the other physicians that have been put in evidence. At page 5, Dr. Levin begins his comments on Dr. Oluyede’s consultation report of November 15, 2012, which he describes as a “clinical record”. He purports to paraphrase a part of Dr. Oluyede’s report commenting on Ms. La Porte’s mood as follows at page 5:

The clinical records dated November 15, 2012, state, “[…] she describes being in a state of shock…three days later, she noticed an increasing pain…following this, she has had subsequent issues with pain…presently, she is going through legal proceedings to get some compensation…”

[82]         Dr. Levin goes on to comment on this passage from Dr. Oluyede’s report, concluding with the following sentence at page 6:

It seems one of the major issues identified in Ms. La Porte’s case is reportedly, “Legal proceedings to get some compensation as she was the injured party…” However, Dr. Oluyede does not discuss any specific psychiatric or psychological injury sustained in the subject MVA that would require any compensation.

[83]         What Dr. Oluyede actually said in her consultation report at page 1 is as follows:

Three days later she noticed an increasing pain in her right leg and her right arm. She described the pain as spasmodic. On the day of the accident she was seen in emergency and had been medically cleared.

Following this she has had subsequent issues with pain and has seen a chiropractor for a while. Both car insurance companies have been involved and her car has been fixed. She took four days off of work at that time.

Presently she is going through legal proceedings to get some compensation as she was the injured party and has been incapacitated since the accident.

She describes not feeling good most of the time, feeling easily stressed out and overwhelmed. She has had to cut down her hours of work from forty hours previously per week to thirty-five hours.

She has noticed a continuous decline in both her physical and mental health. With regards to her mental health she describes easy fatigability, worry and anxiety about her future and with regards to finances. She describes feeling drained most of the time and has noticed that on certain occasions she does have what she describes as overwhelming anxiety.

[84]         In my view, Dr. Levin did not accurately or fairly paraphrase Dr. Oluyede’s consultation report. Even more problematically, when Dr. Levin was cross-examined on the above passage from his report, he again said this was either a typographical error or he misspoke himself in his dictation and meant to say “assistance” not compensation. Again, given the context of the passage, in which Dr. Levin seems to be at pains to show that Ms. La Porte is seeking compensation, I cannot accept this explanation from him.

[85]         In addition, I found Dr. Levin to be argumentative and somewhat non-responsive in the answers he gave in cross-examination. Finally, I am concerned that Dr. Levin had some animus towards Ms. La Porte. At the outset of his notes on his interview with Ms. La Porte he recorded that he felt she was being unreasonable and uncooperative with him. None of the other doctors who conducted independent medical examinations at the request of the defendants made any such comment.

[86]         I therefore give no weight to Dr. Levin’s opinion in this matter.

My 2016 Clawbies Nominations

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What’s a Clawbie?  You can click here for a lengthy explanation, or if you want to skip all that pesky reading what you really need to know is that Clawbies are annual law blog awards handed out following a top secret meeting between Steve Matthews, Jordan Furlong and Simon Fodden.  I don’t know what all goes on there but suspect it may involve drawn straws or sizable kickbacks.  Whatever the deal I know it’s not all shady business as these legal power mongers must select their winners based on peer endorsements.
For 2016 I’m going to nominate blawgging dinosaurs.  Blogs that are senior citizens by internet years that just keep going strong!
1.  Samantha Collier’s Social Media For Lawfirms which has been telling lawyers that social media is something that actually is important and is still doing so because we just don’t listen!
2. David Bilinsky’s Thoughtful Law – David wrote an article years ago that was the inspiration and he’s still going strong!
3. Slaw – Yeah, I know, its the best.  So good in fact it can’t even win anymore.  I’m nominating it anyways.
 
 

Court Declines To Reduce Care Award Where "Health Benefits Program for Aboriginal Persons" May Cover Expenses

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether a cost of future care award for a First Nation’s plaintiff can be reduced where the federal government’s health benefits program for Aboriginal persons may cover the needed treatments.
In today’s case (Watkins v. Harder) the Plaintiff was involved in a 2012 rear-end collision that the Defendants accepted blame for.  The Plaintiff was injured and was awarded damages for chronic soft tissue injuries at trial.  These included damages for future care costs.  The Defendants argued that these should be reduced by the amount of any payments that could be claimed under the health benefits program for Aboriginal persons.  Mr. Justice Gaul refused to make the deduction and in doing so provided the following reasons:

[75]         Mr. Benning estimates that the present day value of the costs of Ms. Watkins’ Tylenol 3 and Extra Strength Advil amount to approximately $12,500. The defendants do not challenge these costs but argue that, like the physiotherapy costs, the costs for these medications will likely be paid by the federal government under its health benefits program for Aboriginal persons. Consequently, to avoid Ms. Watkins’ unjustified double recovery, the defendants contend these costs should be deducted from any cost of future care award.

[76]         Ms. Watkins argues that to deduct her anticipated physiotherapy costs and her medication costs from a cost of future care award would be to force her into a position where she is reliant solely on the state to pay for these expenses when they are more properly attributable to the defendants’ admittedly negligent conduct. In this regard she relies on Harrington v. Sangha, 2011 BCSC 1035, which addressed the deductibility of benefits provided under the PharmaCare program. In that case, Mr. Justice Willcock found there was no risk of double recovery as the evidence showed that the program was intended to be an insurer of last resort and would not provide benefits where a tort award provided compensation for those costs. To deduct the costs from an award would be to presume the plaintiff would make a fraudulent claim for PharmaCare benefits. It was noted, however, that PharmaCare had made submissions on this issue and so was aware of any potential tort award, making double recovery unlikely (see: paras. 160-162).

[77]         In Mitchell v. We Care Health Services Inc. et al., 2004 BCSC 902, the plaintiff, a member of the Kwumut Lelum First Nation, was rendered a quadriplegic in a motor vehicle accident. On account of her injuries and as a part of her ongoing treatment, Ms. Mitchell used a variety of prescription and non-prescription medications. At trial the defendants argued the costs associated with those medications should not form part of any award for the costs of future care because they would be paid for under the federal government’s health benefits program for First Nations persons. Mr. Justice Kelleher declined to make any deduction on the basis that the plaintiff would not be eligible for the benefits program because of the tort claim compensation. A factor that distinguishes this case from Ms. Watkins’ is that Justice Kelleher had evidence before him from the acting manager of the health benefits program on that specific point (para. 124).

[78]         Other decisions not referred to by counsel indicate these benefits are generally not deducted from tort awards. In Whetung v. West Fraser Real Estate Holdings Ltd., 2007 BCSC 990, Mr. Justice Grist refused to make a deduction for health benefits received as a result of the plaintiff’s Aboriginal status. He noted at para. 71 that the “defendant’s obligation should not be put aside on the basis of possible double coverage where the social source is only prepared to be called on should any prior obligation fail”. Again, unlike the present case, there was evidence before Justice Grist that the coverage under this program only extended where no other source of funding was available.

[79]         In Cottrelle v Gerrard, [2001] O.J. No. 5472 (S.C.J.) the court took the opportunity to summarize the evidence on the nature of the health benefits program for Aboriginal persons. Madam Justice Leitch concluded at para. 103 that the publicly-funded benefits program was a matter of policy and, as such, even though there was no evidence to suggest the program would be terminated or the benefits would be reduced, there was no guarantee the benefits would continue. On this basis, the court did not deduct such benefits from the damage award. The decision was later overturned on the issue of liability and the issue of deductibility was not considered (Cottrelle v. Gerrard, [2003] O.J. No. 4194 (C.A.)).

[80]         In H.L. v. Canada (Attorney General), 2001 SKQB 233, at para. 71 the health benefits provided to Aboriginal persons were deducted from a tort award. The fact that the defendant government of Canada was both the tortfeasor as well as the benefits provider is an important distinguishing feature of that case. On appeal the court overuled the trial judge’s decision, concluding that the intensive therapy required by the plaintiff would not be covered under the benefits program and should therefore be compensated through the tort award (H.L. v. Canada (Attorney General), 2002 SKCA 131 at paras. 259-63).

[81]         Neither party has provided any evidence with regards to the nature of the benefits Ms. Watkins is entitled to as a result of her status as an Aboriginal person. I have no evidence before me regarding her continued entitlement or the certainty of the benefits provided under the program, or on the eligibility for benefits when an alternative source of funding, such as a tort award, is available.

[82]         In these circumstances I cannot conclude that the cost of the treatments and medications in question should be deducted from the award Ms. Watkins is entitled to for her future care costs. As was noted in Harrington, without any evidence to suggest it, I cannot presume that the plaintiff would make a fraudulent claim for publicly-funded health benefits. On this basis, I do not find that an award that provides for full compensation of these costs results in double-recovery for Ms. Watkins.

Limitation Period Dismisses Two ICBC Injury Claims

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Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing two ICBC injury claims for being brought beyond the applicable limitation period.
In the recent case (DeWolfe v. Jones) the Plaintiff spouses were both injured in a 2005 collision.  They dealt with ICBC directly but never reached settlement.  During a conversation the acting adjuster, in response to the Plaintiffs advising they were not prepared to settle at the time told them that “I am leaving on maternity leave at month end and he knows that he can call to settle if things improve at any point.”
The Plaintiffs failed to start a lawsuit in time and argued that this statement from ICBC should prevent them from raising the limitation defense.  Mr. Justice Gaul disagreed and dismissed the lawsuits.  In reaching this decision the Court provided the following reasons:
[48]         In my opinion, Ms. Johal did not state or infer that liability had been accepted by the defendants to the extent that the only remaining issue was the quantum of damages. The parties had not entered into negotiations, only discussions in which Ms. Johal came to the conclusion that the plaintiffs did not want to consider settlement at that point.
[49]         Finally, even if the plaintiffs were able to establish that liability had been admitted and a promise made, I am of the view that they are unable to demonstrate they relied on such an assurance to waive the limitation period. In her examination for discovery, Mrs. DeWolfe admits that the main reasons why she did not commence her legal action earlier was that she simply did not realize there was a time frame in which she had to do so, and that “life just got busy”.
[50]         Although case authorities such as Esau v. Co-Operators Life Insurance Company Limited, 2006 BCCA 249, have commented on the advisability of insurers informing their clients of limitation periods, for better or worse the law remains unchanged. In my view, ICBC had no obligation or duty to raise the limitation period issue with the plaintiffs. Consequently, the plaintiffs’ assertion that they were unaware of that period is insufficient to ground a claim of promissory estoppel.
[51]         In my opinion, although the parties had discussed the possibility of settling the plaintiffs’ claims, there were no serious negotiations towards that end. At no point did ICBC concede to the plaintiffs that the defendants were responsible for the Accident and in my view there is no persuasive evidentiary foundation to infer that only the quantum of damages remained as an issue to be settled between them.
[52]         Finally, I am not convinced that the plaintiffs relied to their detriment on any assurances made by Ms. Johal or any other representative of ICBC.
[53]         In light of these findings, I conclude the defendants are not estopped from relying on the valid and complete defence that is available to them under the Limitation Act.
[54]         The defendants’ applications are granted and the plaintiffs’ actions are dismissed.

BC Supreme Court Outlines Parameters of Lay Witness Evidence from Doctors

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The line between opinion evidence and fact evidence when given by a physician is sometimes blurred.  Today reasons for judgement were released by the BC Supreme Court, Vancouver Registry, discussing this and outlining the parameters of factual vs opinion evidence from treating physicians.
In today’s case (Cambie Surgeries Corporation v. British Columbia) the Defendant sought clarity about the scope of evidence from physicians.  In discussing these boundaries Mr. Justice Steeves provided the following reasons:

[10]         The treatment of that evidence is well established and has been usefully surveyed by Justice Metzger in a previous judgment (Seaman v. Crook, 2003 BCSC 464):

[14]      The cases Ares v. Venner, supra; Sandu and Brink, Olynyk v. Yeo, supra; Butler v. Latter, [1994] B.C.J. No. 2358 (B.C.S.C.), McTavish v. MacGillivray, supra; Coulter and Ball et al., 2002 BCSC 1740 (CanLII); and s. 42(2) which provides:

            In proceedings in which direct oral evidence of a fact would be admissible, a statement of a fact in a document is admissible as evidence of the fact if…

when taken together, stand for the following:

(1)  That the observations by the doctor are facts and admissible as such without further proof thereof.

(2)  That the treatments prescribed by the doctor are facts and admissible as such without further proof thereof.

(3)  That the statements made by the patient are admissible for the fact that they were made but not for their truth.

(4)  That the diagnoses made by the doctor are admissible for the fact that they were made but not for their truth.

(5)  That the diagnoses made by a person to whom the doctor had referred the patient are admissible for the fact that they were made but not for their truth.

(6)  That any statement by the patient or any third party that is not within the observation of the doctor or person who has a duty to record such observations in the ordinary course of business is not admissible for any purpose and will be ignored by the trier of fact. It is not necessary to expunge the statements from the clinical records as this is a judge alone trial.

[15]      Therefore any, and I emphasize the word “any”, opinions contained in the clinical records are not admissible for their truth. The opinions are admissible only for the fact that they were made at the time.

[16]      Without having met the requirements of Rule 40A, the oral testimony of the doctor interpreting his clinical records does not change the nature of the evidence contained in those clinical records. The clinical records remain evidence of the fact that he made those notes, made that diagnosis, and prescribed a certain treatment.

[17]      The opinions contained in the clinical records do not constitute independent stand-alone expert opinions. If they did, what would be the purpose of Rule 40A? It is the expert’s opinion that the court is weighing. It is the expert’s report that the court will accept or reject. It is not the opinion in the clinical records that the court is weighing.

[11]         As can be seen, much of this parallels the orders sought by the defendant, British Columbia. There is more to be said here, but I adopt the above summary by Justice Metzger. I add two other points.

[12]         First, the causation issue here relates to waiting for a medical procedure and a patient’s rights under s. 7 of the Charter, whether the latter was infringed by the former. I say this to distinguish causation here from causation on a medical chart that most frequently relates to whether a motor vehicle accident, for example, was of causative significance in a patient’s injury. This latter causation issue may be marginally relevant to the constitutional issues in this case.

[13]         This is also an appropriate place to address the plaintiffs’ submission that the Rules of Evidence cannot be used by the defendant British Columbia to require them to call every patient who has had a negative experience in the health care system in order to prove their case. I agree with that submission and point out that it is not the position of the defendant, British Columbia. What is required in this case, as with other cases, is counsel’s judgment as to the type and volume of evidence that is necessary to prove their client’s case.

[14]         A second category of evidence that arises here is evidence from a doctor, who is not certified as an expert, about his or her experience with waitlists: how long they have been, how a patient gets on a waitlist, any care issues that arise while the patient is on the waitlist and other related matters. I can see no impediment to the admissibility of evidence from doctors about their observations of how waitlists operate. This is part of the everyday experience of important actors in the health care system and it can be of value to the court. I note this is not opinion evidence about whether waiting times are medically justified or not justified. Such opinion evidence must come from a certified expert.

[15]         Another related category of evidence is also from a doctor, again not certified as an expert, who testifies about his or her observations as to a patient’s situation while waiting for a medical procedure. These observations can be about a patient being in pain, having restricted movements, not being at work, being anxious and/or depressed and other matters. I conclude that these observations are also admissible. In my view the character of these observations are the same as observations that could be made by a non-doctor. The fact that the witness is a doctor is relevant inasmuch as he or she may use medical language to describe his or her observations. But I see no difference for the purposes of admissibility with a non-doctor testifying about an accident where the victim was bleeding from the leg and a doctor saying the same victim was bleeding from the carotid artery.

[16]         I acknowledge there is an element of opinion in this type of evidence. However, it has been the case for some time that distinctions between fact and opinion can be tenuous and even false (Graat v. The Queen, [1982] 2 S.C.R. 819, at p. 15 (QL)). This development in the law of evidence has been applied in cases involving, for example, non-expert telecommunication workers describing how to determine the location of a cellphone (R. v. Hamilton, 2014 ONCA 339, at paras. 272-9) and a police officer testifying about his observations from years of experience about the operation of street level drug trafficking (R. v. Ballony-Reeder, 2001 BCCA 293, at para. 12).

[17]         In some cases this is called the “compendium statement of fact exception” to the usual requirement for expert opinions (Ganges Kangro Properties Ltd. v. Shepard, 2015 BCCA 522) and in other cases it is called “lay opinion evidence”, American Creek Resources Ltd. v. Teuton Resources Corp., 2013 BCSC 1042, at para. 142).

[18]         In any case I conclude that a doctor’s observations about his patient while waiting for a medical procedure or prior to being put on a waitlist, however that list is defined, are analogous to the accepted forms of this type of evidence in other cases. This includes identification of handwriting, identification of persons, identification of things; apparent age; the bodily plight or condition of a person, including illness; the emotional state of a person, whether distressed, angry and depressed; and other categories (Graat, at para. 46).

[19]         I also conclude that this type of evidence may be generalized to reflect the experience of a doctor over a period of time and experience with a number of patients in the same situation. Of course, at a certain point highly generalized evidence without sufficient particulars cannot be given significant weight. I have in mind here statements such as patients simply being “significantly disabled” or “in significant distress.” A doctor giving this type of evidence is subject to cross-examination, including questions about specific patients, and this might include details of their treatment.

[20]         There can also be some overlap between the issue of opinion evidence and issues of hearsay. As above, a doctor may well testify about his or her observations about patients waiting for a medical procedure. However, including in that evidence what a patient said can be problematic. This may be a fine line and it could result in the doctor disclosing the name of the patient and other information. Obviously in the case of the death of a declarant, the necessity component in the principled approach to hearsay has been met. Other than these general comments, I consider that the issue of hearsay will have to be considered on the basis of individual cases.

[21]         The plaintiffs rely on what they describe as the special relationship between doctors and patients, and this means that anything said in that relationship is admissible, including hearsay. This is described as “a very strong circumstantial guarantee of trustworthiness or indicia of reliability.” I do not doubt the special relationship between doctors and patients; however, there are other special relationships in society, such as parent/child and lawyer/client. There are constraints, legal and otherwise, on conversations in those relationships, but I am not aware of any authority that says that those conversations are not subject to the usual rules of admissibility of evidence in court. I see no basis for treating discussions between doctors and patients in the broad terms urged by the plaintiffs.

[22]         Turning to a fourth and perhaps final category of evidence here, the evidence may include evidence from a doctor, again not certified as an expert, who says a patient is experiencing a specific medical condition caused by waiting for a medical procedure.

[23]         In my view that is an issue that is at the heart of this litigation and ultimately for me to decide. There can be evidence on that issue that would certainly assist the court, but in my view it must be evidence in the form of an expert. To be clear, evidence on that issue or similar issues from a doctor testifying without being certified as an expert is not admissible. I take examples of this from the will-say statements that include a statement that wait times have a significant impact on the health outcomes and quality of life of patients or delayed treatment has a negative impact on the overall well-being of patients. Again, these conclusions are for the court to make based on admissible evidence including observations by physicians, expert reports and evidence from patients.

[24]         I close this discussion by saying, I have considered the trial and Supreme Court of Canada levels Chaoulli matter (Chaoulli v. Quebec (Attorney General), [2000] J.Q. No. 479, 2005 SCC 35). As urged by the plaintiff, I have treated those judgments as a guide to the issues here. I also note that the specific issues raised here were not raised or otherwise decided in Chaoulli (except for comments from the minority judges at the Supreme Court of Canada.) Here the issues are very clearly in dispute and they require consideration and resolution.

 

Announcing MacIsaac & Company's new Distracted Driving Campaign

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macisaac-co-distracted-driving-billboard
 
I try to keep the commercial messages in this website to a minimum but wanted to quickly break tradition to announce my firm’s anti Distracted Driving Campaign.
Simply titled “we sue distracted drivers” the message is clear, simple and to the point.
Between web and more traditional avenues such as billboards and bus ads I hope the message that distracted driving comes with consequences is loud and clear.
You can visit the new website here.

Responding Expert Reports Must Be Tendered in Party's Case in Chief

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Interesting procedural reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing when a party must tender responding expert reports.
In today’s case (Cambie Surgeries Corporation v. British Columbia) the Plaintiffs sought to tender their responding expert reports after the Defendant tendered their expert reports. The Defendant objected noting the reports should properly be admitted as part of the Plaintiff’s case in chief.  In agreeing with the Defendant Mr. Justice Steeves provided the following reasons:

[9]             It seems to me that the Rules are intended to promote efficiency in a trial. Historically, expert opinion evidence was given simply by a notice, as described in Abell v. British Columbia (Greater Nanaimo Water District), 1979 CanLII 657 (BC SC), but now there are strict requirements. With respect to reply reports, they are intended to avoid parties putting in reply reports at trial for the first time. Here the plaintiffs’ position would not bring back that situation entirely; however, it would at least open up the risk of sur-reply expert reports, thus possibly lengthening these proceedings.

[10]         Overall I conclude that, while it is always open to a party to apply to apply to call rebuttal evidence, a responding expert under the Rules is quite a different part of a trial. In short, a responding expert report is not rebuttal evidence in the usual sense of being in response to unanticipated evidence. In my view, as with all anticipated evidence, the plaintiffs must call and exhaust their evidence. This is paraphrasing of the judgement in Commercial Electronics v. Savics, 2011 BCSC 162. The plaintiffs will examine their expert witnesses about their reports, including responding reports as part of their case.

$150,000 Non-Pecuniary Damage Assessment in Polytrauma Injury Case

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for multiple injuries sustained in a vehicle collision.
In today’s case (Chappell v. Loyie) the Plaintiff was injured when his motorcycle was struck by the Defendants vehicle in an intersection collision.  He suffered numerous injuries, some of which resolved others which caused ongoing disability.  In assessing non-pecuniary damages at $150,000 Madam Justice Fisher provided the following reasons:

[176]     I find that Mr. Chappell sustained the following injuries as a result of the accident:

a)       injuries to his feet and ankles which caused severe pain initially and substantially resolved within about four months;

b)       soft tissue injuries to the back and neck with chronic, ongoing pain that affects his level of activity and his ability to cope with his other injuries;

c)       carpal tunnel syndrome in the left hand, which caused significant pain over time but resolved within a month following carpal tunnel release surgery in November 2012, with an 80% risk that he would have developed carpal tunnel in his left hand in any event;

d)       headaches that are cervicogenic in origin and have become chronic partly as a result of his long term use of pain medication;

e)       injury to the previously reconstructed ACL in the left knee, which caused it to eventually dissolve and require replacement and which continues to cause intermittent pain, but with a 20% risk of damage to the reconstructed ACL regardless of the accident;

f)        injury to the rotator cuff in the right shoulder that eventually required surgical repair, which has substantially resolved but continues to cause intermittent pain, but with a 20% risk of re-injury in any event and an 80% risk of problems in the right shoulder due to degenerative problems, some of which are now present;

g)       a mild TBI that did not cause significant symptoms and resolved within about two months following the accident; and

h)       severe depression and anxiety that developed over a year after the accident, is ongoing, and may improve with concentrated treatment.

…

[200]     Mr. Chappell’s multiple injuries are serious and cumulative, the prognosis for a pain-free existence is poor, and their effect on Mr. Chappell’s life has been profound. His colleagues and friends who testified described him before the accident as a positive, active “larger than life” individual who was “happier building a fence for you than watching a movie”. He was known for his strength. Tab Buckner, one of his oldest friends who worked with him in construction, said he was very physical, proficient and could think outside the box. Steve Raby, one of his fellow firefighters, described Mr. Chappell as “one of the biggest, strongest people” he knew, a happy person who liked to socialize, and “not a complaining kind of guy”. Todd Roberts, another firefighter and hunting friend, said that Mr. Chappell organized all the gear for their hunting trips and all he had to do was “jump in the truck”. Mr. Chappell’s wife, Cheryl Ann, testified about the deep happiness and intimacy they had found together, the joys and challenges of blending their families and their common interests in home renovation projects. She said that her husband loved his work as a firefighter, could do “pretty much anything” when it came to renovations, and was very particular about his lawn and garden.

[201]     The picture painted by these witnesses of Mr. Chappell after the accident stands in stark contrast to these descriptions. They all said that Mr. Chappell is no longer active, doing either construction work, hunting or social activities, and the most he does is to take an advisory role in projects. Many thought he was coping with what they perceived as pain and fatigue. Todd Roberts described his activity level as “next to none” and his personality as drastically changed, “he just seems his mind is elsewhere”. Tab Buckner noticed that Mr. Chappell had difficulty getting in and out of chairs, could barely move at times, seemed angry with the world, and was not coping well with his wife and stepsons. Anthony Tanner, his oldest stepson, observed that the relationship between his mother and Mr. Chappell had become more strained. Mrs. Chappell described the course of Mr. Chappell’s injuries and recovery since the accident, his obvious pain, his growing frustration and then sadness at his lack of progress, and the personal difficulties that developed between them as he became more irritable, impatient and argumentative. There is no longer any intimacy in their relationship, which is obviously a very difficult issue for both of them.

[202]     I found all of these witnesses to be honest and straightforward, but Mrs. Chappell was quite exceptional. Throughout her testimony she was responsive and respectful, and while of course she was supportive of her husband, she did not overstate the positive or understate the negative. Her evidence was entirely consistent with Mr. Chappell’s evidence about the nature and quality of their lives together and what has happened to their relationship since the accident.

[203]     All of this evidence is consistent with how I have already described Mr. Chappell: after five years of dealing with his physical injuries, he is a broken man, emotionally isolated, suffering in constant pain, ashamed of his physical limitations and his inability to cope, and desperate for solutions.

[204]     Moreover, by June 2012, Mr. Chappell was forced to give up his career as Captain of Suppression and abandon his ultimate goal of becoming Battalion Chief of Suppression. This loss of a job he loved caused him great personal distress. As I indicated above, while there was a measureable risk that he would have had to do this at some point in any event, this change occurred much sooner than it would have absent the accident. I will come back to this when I address future loss of capacity.

[205]     In these circumstances, I award of $150,000 for non-pecuniary damages, after taking into account the extent of the risks outlined above that some of Mr. Chappell’s conditions would have occurred regardless of the accident.

"Cut and Paste Affidavit" Derails Defence Medical Exam Application

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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing a defence request for an independent medical assessment of a Plaintiff in part due to the use of a “cut and paste affidavit”.
In the recent case (Mirzai-Sheshjavani v. Ho) the Plaintiff was involved in a collision and sued for damages.  As trial neared the Plaintiff served expert reports and the Defendant applied to compel the Plaintiff to attend an independent medical exam to obtain a responsive report.  The request was denied with the Court criticizing the supporting materials.  In dismissing the application Master Baker provided the following reasons:

[3]             The global response addressed the — I think the term used in some of the email was the “institutional litigant” approach of the defence. I agree in large measure with that. I agree just from the materials before me. Mr. Jiwa says there are too many of these applications, “these applications” being applications for defence medical examinations brought very proximate to the trial, often with short leave. He is correct.  There is no utility in my getting into an anecdotal review, but it has become quite common in chambers to have that application. Yes, short leave is typically given. Yes, the applications are heard, and I guess, yes, sometimes the applications are successful, perhaps often, I do not know, but it is becoming the case where a fair proportion of the short-leave applications that we hear on a daily basis relate to just this subject. His conclusion and his assertion is that this represents an institutional litigant who is, as he termed it, sitting on their hands until the trial date approaches. I do not know. I do not know whether that is the case or not. I suspect it may be because litigation is being driven by adjustors and not by counsel. I believe it may be the case that counsel are not being given enough latitude to exercise their professional judgment. I do not know.

[4]             It is not for me to tell them how to do their job, but that might explain a few things, but in the particular case before me, the affidavit in support — one of the affidavits in support — is by Dr. Hummel indicating why he needs to do a physical examination of the plaintiff and there is just absolutely no question that this is a cut-and-paste affidavit. It is taken literally verbatim from the affidavit of — I think it is — Dr. Reebye in one of the other cases cited to me – down to the punctuation.

[5]             The interesting paragraph, paragraph 9(d), where he says, “I understand that the plaintiff has been assessed by Dr. Heran and Dr. Kazemi…” — well, that was not verbatim, different doctors — “…whose reports I have not reviewed extensively, but sufficiently to determine that they noted the plaintiff’s complaints of neck, back, and shoulders causing headaches,” et cetera, on down to, “To properly assess his claimed injuries, I need to review the plaintiff’s history, accident information provided, and conduct a physical examination.”  These are all conclusions. He does not say, “Well, I notice that Dr. Heran did this or did not do this, performed this test which I think as a professional is inappropriate for the symptoms suggested”; no, nothing, he just simply says, “I need to look at this person,” and when he says that, he essentially, in my respectful view, says, “I need to do the same things Dr. Heran did,” but he just says that without giving us any reasons and, without reasons, there is no evidence, there is no requirement proven, and the application fails, but I also agree with Mr. Jiwa’s submissions that there is not a surprise here.

[6]             Yes, I can see the defence’s point, but I can also see the other elements and aspects of Dr. Kazemi’s report which, as Mr. Jiwa points out, says, among other things, he needs to be assessed for neurosurgery. Well, maybe you can say that is different than being assessed by an orthopedic surgeon, I do not know, but it is obvious that Dr. Kazemi certainly considered that a full understanding of the plaintiff’s circumstances would require further inquiry by another specialist and, in fact, the very specialist or physician of the same specialty that he considered who happens to be Dr. Heran. So no surprise there.

[7]             The application is dismissed.

"Outlandish" Uncorroborated Injury Claims Rejected

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, largely rejecting many “outlandish” claims in a personal injury lawsuit that were not supported by medical evidence.
In today’s case (Lamb v. Fullerton) the Plaintiff was involved in several collisions and sued for damages.  He claimed aggravation of a historic head injury and further claimed severe consequences including ‘vomiting 100 times in a day‘ and severe bowel incontinence.  The reported symptoms and any relationship to the collisions in question were not corroborated by medical evidence.  The court was critical both of the lack of evidence in support of the claim and the Plaintiff’s credibility.  In rejecting these and other portions of the claim Madam Justice Warren provided the following reasons:
9]             Mr. Lamb’s testimony was unsatisfactory.  Regrettably, I have concluded that it is almost wholly unreliable in establishing that any injury or aggravation of injury was caused by these accidents, particularly in the complex circumstances of a serious, ongoing pre-existing condition and two intervening accidents that are not the subject of this action.
[10]         Mr. Lamb unreasonably persisted in making claims that were inconsistent with either independent evidence or other aspects of his own evidence, and he made little, if any, attempt to explain the inconsistencies.  Two particularly striking examples were his insistence that his behavioural and memory problems were aggravated by the accidents in question and his repeated assertion that he broke his clavicle in the December 8, 2010 accident…

[14]         Mr. Lamb also baldly advanced claims, some of which were out of the ordinary and even outlandish, without corroborating evidence in circumstances where one would expect corroborating evidence to exist.

[15]         Mr. Lamb claimed to have been vomiting 100 times in a day.  He claimed that the bowel incontinence was so severe that he was using countless incontinence pads and 20 gallons of isopropanol annually to clean his soiled clothing.  He offered his own opinion as to the cause of these conditions, which was blood accumulating in his stomach as a result of bleeding from his esophagus caused by wincing and cringing due to the pain.  Yet, he appears to have taken few, if any, steps to obtain medical attention for these conditions; he offered no medical evidence to support his own dubious opinion as to the cause of these conditions; and he produced not even a single receipt for isopropanol or incontinence pads…

[20]         Mr. Lamb acknowledged having been untruthful in other contexts.  He admitted that he told a surgeon who performed his cataract surgery in June 2012 that he had undergone chemotherapy for leukemia but he seemed to reluctantly acknowledge during the trial that he has never had leukemia…

[85]         As I have already explained, because Mr. Lamb’s subjective reports provide the foundation of his claims it is particularly important to examine his evidence carefully.  For the reasons already expressed, I have concluded that his evidence was neither credible nor reliable.  He has failed to marshal any persuasive independent corroborating evidence.  Most importantly, he has presented no medical evidence in respect of the cause of the injuries and conditions he claims to suffer from; whether his pre-existing conditions were aggravated by the accidents; if so, the extent of the aggravation; or the impact of the two intervening accidents on his current condition.  In the circumstances of this case, such evidence is necessary in order to establish possible causes of the injuries and conditions about which he complains:  Deo v. Wong, 2008 BCCA 110 at para. 19.