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Expert Criticized for Becoming "an Advocate for the Defence"

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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, Kamloops Registry with critical comments about an expert witness.
In today’s case (Odian v. Carriere) the Plaintiff sustained a chronic neck injury as a result of a collision.  Her symptoms impacted her vocational functioning.  In the course of the lawsuit the Defendant had the Plaintiff assessed by an occupational therapist who conducted a functional capacity evaluation and provided the Court with opinion evidence expressing optimism that a kinesiology program “will likely improve” the Plaintiff’s condition.  In criticizing this opinion as “not well based” and expressing concern that the opinion strayed into prohibited advocacy Mr. Justice Dley provided the following comments

[48]         Ms. Phillips’ optimism that the new kinesiology program will likely improve Ms. Odian’s condition is not well based. There is no history or details that would justify her opinion. Ms. Phillips’ initial opinion as set out above was far less certain than what she said at trial.

[49]         I am concerned about the objectivity of Ms. Phillips’ opinion.

[50]         Ms. Phillips’ testimony was challenged particularly in light of a rebuttal report she had prepared. During her cross examination, Ms. Phillips was at times evasive and non-responsive. The tenor of the rebuttal report, coupled with her testimony and demeanor in court, was indicative of a witness who had become an advocate for the defence.

[51]         Putting Ms. Phillips in the most favourable light to the defence, the best that can be said about her opinion is that Ms. Odian may receive some benefit from new programs, but they will not cure her symptoms. Ms. Odian will still have discomfort.

[52]         I prefer the opinions of the medical experts who agree that Ms. Odian’s condition is chronic. Dr. Robinson summarized it best:

The treatment of chronic headache related to head and neck trauma is usually difficult. Research is limited despite the frequency and burden of these injuries to individuals and society. As yet there is no physical therapy that has been found to be curative. At most patients will experience temporary benefit and on occasion the headaches may be more severe following such therapy. I do not believe that there is any further advice to be given other than to maintain an active lifestyle. Regular exercise directed to improving general fitness may increase the sense of well-being and ability to cope with pain.

Dr. Robinson: February 13, 2015 at page 8.

[53]         Dr. Robinson’s opinion is consistent with the views of Drs. Laidlow and Hirsch.

[54]         I also accept the evidence of Ms. Odian. She was truthful and reliable with respect to her injuries and the ongoing symptoms.

Applications For Responsive Reports Ought to be "Extremely Rare"

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, criticizing the volume of applications the Court is seeing with Defendants arguing that they need to subject plaintiff’s to physical examinations in order to obtain ‘responsive’ expert opinion evidence.
In today’s case (Falbo v. Ryan) the Plaintiff was injured in a collision and sued for damages.  In the course of the lawsuit the Plaintiff attended several defence medical appointments, specifically with a physiatrist, a psychiatrist, a dental expert, and a rheumatologist.  The Plaintiff then served two functional capacity reports outlining vocational limitations.  The Defendant argued they needed a further evaluation to obtain a ‘responsive’ report.  In dismissing the application Master Harper provided the following reasons :

[10]        There are numerous cases that have dealt with these types of applications.  The plaintiff in fact produced a binder of 21 case authorities.  One of the cases that I find most persuasive in this matter is Timar v. Barson, 2015 BCSC 340.  In that case, Mr. Justice Smith said that IMEs for responsive reports should be rare.  I agree.

[11]        In my view, the defendants cannot reasonably claim to be surprised by the subject matter of the report, and further, it is my view that it is not necessary in order to provide a responsive report for the plaintiff to be subjected to a physical examination.  These types of orders are discretionary.  They ought to be rare.  There is, unfortunately in my view, what seems to be an acceleration of these types of applications.  They should be extremely rare, and in my view the defendants do not require a physical examination of the plaintiff in order to properly respond to Ms. Craig’s two functional capacity evaluations.

ICBC Doctor Criticized as "Very Unhelpful Medical Witness" By BC Supreme Court

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In the latest example of expert witnesses who cross the line into prohibited advocacy, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, criticizing a physician for such behavior.
In this week’s case (Ferguson v. McLaughlin) the Plaintiff was injured in a 2009 collision caused by the Defendant.  The Defendant’s insurer hired a physician who presented evidence largely discounting the connection of the Plaintiff’s complaints to the collision.  In rejecting this evidence Madam Justice Griffin had the following pointed comments for the physician –

[63]         The defendant called the evidence of Dr. Duncan McPherson, an orthopaedic surgeon, who performed a medical examination of the plaintiff at the request of the defendant.

[64]         Dr. McPherson was a very unhelpful medical witness.

[65]         Dr. McPherson has not practised medicine for years. He stopped his work as a surgeon in 1992 or 1994 and ceased practising medicine in 1997. It is difficult to assume that he is up to date on medical studies regarding soft tissue injuries and pain.

[66]         Dr. McPherson is wholly reliant on the Insurance Corporation of British Columbia (“ICBC”) for his income and has been for years. He was clever, and I mean this not in a complimentary way, when questioned about his reliance on ICBC for his income in the last several years, hinting at the notion that he had other sources of income. He then agreed the other sources of income were simply his investment income.

[67]         Dr. McPherson’s approach to examining patients appeared to be dependent on a verbal test. He asks the patient to explain the patient’s complaint, and if the patient does not mention pain in his answer, he concludes that in his opinion the patient does not have pain and thus does not have a lasting injury. Dr. McPherson stated that when patients describe complaints in the activities they can do, rather than stating they have pain in a body part, that is because they are not sure where the pain “should” be, implying that the patient is not telling the truth if they do say they have pain.

[68]         Dr. McPherson was in my view overly confident that the question he poses to patients is a scientifically valid “truth-o-meter”, foolproof in discovering whether pain exists or not. He seemed completely close-minded to the possibility that some patients might not understand what he means by “complaint” or may not consider “pain” to be a complaint but a condition that they simply deal with on a day-to-day basis.

[69]         Dr. McPherson found it highly relevant that when he asked the plaintiff about his present complaints relating to the accident, the plaintiff did not say he has pain, but said he is limited to certain activities now, such as he cannot do heavy work, or has issues with his back hurting during sexual activities. Dr. McPherson appeared to conclude that because the plaintiff did not say “I have pain in my back” during the interview, he therefore did not have a chronic pain injury in his back.

[70]         I found Dr. McPherson’s logic to be at best simplistic and superficial. At worst it reveals that Dr. McPherson holds such a degree of cynicism regarding patients advancing claims against ICBC that he is not independent and his evidence is unreliable.

[71]         When it was suggested to Dr. McPherson he may not have written down exactly what the patient said he was absolutely confident that he was always a perfect recorder of what patients said to him. This is so despite the brevity of his report. A reasonable, educated person would allow for the possibility of mistakes being made in transcribing a patient’s comments, but Dr. McPherson did not do so, illustrating his close-minded disposition.

[72]         It seems obvious to me that when describing his limitations to Dr. McPherson, the plaintiff was intending to convey to Dr. McPherson that the accident caused these limitations because of the pain he suffers, as he explained in court. The fact that he might not have spelled out to Dr. McPherson in a more explanatory way that ”the accident caused me to have pain in my back which limits me from these activities” is not an admission that proves that his injuries do not cause him pain in his back.

[73]         Also, Dr. McPherson gave significant weight to the fact that the plaintiff exhibits a full range of motion. He seemed unwilling to accept that a person can have a full range of motion but also suffer from pain. Dr. Lepard, the plaintiff’s family doctor until she retired in 2011, said that it is not uncommon for a patient with an injury to have full range of motion but also to have pain. I prefer Dr. Lepard’s evidence on this point, as it is consistent with the plaintiff’s evidence that he has pain on prolonged activity on a recurring basis.

[74]         Dr. Lepard did agree that the plaintiff’s range of motion suggested that his whiplash injury was not as serious as Category 3 and 4, but was more in the Category 2 range, of being in the medium to low end of whiplash soft tissue injuries.

[75]         Dr. McPherson concluded that there was no “objective” evidence of a disability relating to the motor vehicle accident. This is not a helpful opinion in relation to the injuries in this case. Pain may not something that can be measured objectively with a scientific instrument, but it can still be disabling.

[76]         I note that even the defendant concedes on the whole of the evidence that the plaintiff has suffered a soft tissue injury which will cause some future loss of earning capacity.

[77]         I do not find Dr. McPherson’s evidence to be of any value in deciding the issues in this case.

A Mind Too "Ravaged By Disease" To Be Negligent?

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Although the concept of intent plays a far more central role in criminal law than in personal injury lawsuits, the lack of ability to form intent can indeed take away culpability for otherwise seemingly negligent actions.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry discussing this.
In today’s case (SH v. AM) the Plaintiff was injured in a vehicle collision.  The Defendant denied fault in part arguing that at the time of the collision he “was suffering a psychotic episode” and was not responsible.
The Plaintiff sought to have this defense struck on an application on a point of law arguing the defense could not succeed but the Court refused to strike it finding the evidence needed to be weighed at a full trial.  In addressing the merits of such a potential defense in a BC personal injury lawsuit Madam Justice Burke provided the following reasons:

[8]             The plaintiff relies in particular on Wenden v. Trikha, 1993 CarswellAlta 528 at para. 17 (C.A.), leave to appeal ref’d [1993] S.C.C.A. No. 126, as follows:

[17]      In order to succeed, the patient would have to prove a sudden reversal of facts. First, he would have to prove that when he was well enough mentally that he could be liable for negligence, he had no reason to foresee any danger from his possessing an automobile or car keys or not taking his medication. Then he would have to prove a sudden change in condition, his suddenly becoming too insane to be liable for negligence, and that that condition continued without let-up until the time of the collision. If he did not prove the first item, then he would be negligent in having let himself slip into Insanity while having access to an automobile (or vice versa). If he did not prove the second item, then the defence of insanity would simply be irrelevant. It does not seem to us that either was proved here. [Emphasis added.]

…

16]         The parties also essentially agree the legal analysis for the determination of whether a person with a mental illness is liable for negligence includes whether the act was a conscious act of the defendant and whether the onset of the incapacity to control his or her actions was foreseeable and reasonable steps could have been taken to prevent it: Hagg; Fiala…

[23]         A review of the judgment in Hagg is helpful in understanding what is needed to come to a conclusion in this matter. At 390-91 of that judgment, while not deciding the matter, the BC Court of Appeal states:

I find it unnecessary to consider whether, as seems to be indicated in Roach, J.A.’s judgment in Buckley & T.T.C. v. Smith Transport Ltd., a driver whose mind is so ravaged by disease that he does not understand the duty which rests upon him to take care, as distinct from one who is prevented from discharging that duty, cannot be held liable for his acts and omissions in the course of his driving. I reserve this for some future occasion. I am unable to find evidence establishing, directly or by reasonable inference, that the appellant in the case at bar did not understand the duty to take care which rested upon him. Likewise, I reserve until the occasion arises the question whether insanity which does not result in impairment of faculties and judgment to the full extent I have mentioned will provide a defence to an action for negligence.

[24]         The question I am in essence being asked to decide is whether the defendant in this case had “a mind so ravaged by disease that he does not understand the duty which rests upon him to take care, as distinct from one who is prevented from discharging that duty.” In the former, the individual cannot be held liable for his acts and omissions in the course of driving.

[25]         It is apparent to me that in order for a conclusion to be reached on this point, I must weigh the evidence. The plaintiff argues the onset of the psychiatric condition was foreseeable and reasonable steps could have been taken to prevent it. The plaintiff asks me to reach that conclusion after reviewing the discovery evidence and contrasting it with the psychiatric opinions. The plaintiff also points to what she maintains is inconsistencies, in particular in Dr. Cheng’s report, on the question of whether the defendant had periods of lucidity where he knew or should have known that he should have taken steps to ensure his psychotic state did not happen or that he should not get in the car, as per the situation in Wenden. He also contrasts portions of Dr. Levin’s report on the basis of his conclusion on this point and refers to a time subsequent to the accident.

[26]         All of this makes clear I am being asked to weigh the evidence in order to come to a conclusion as to whether the defendant understood the duty that rested upon him to take care. In my view, that is not something that can be done under R. 9-4. This Rule is reserved for the determination of points of law without the need to weigh evidence.

[27]         I note further the inconsistencies that are pointed to could well be explained by testimony of the experts. The discovery evidence in isolation is difficult to reconcile with the differences between the parties. It is very difficult in these circumstances to come to the conclusion on the evidence on this basis. In my view, this is more appropriately left to the trial judge to determine.

[28]         As noted in Larsen, R. 9-4 can be used where the point of law arises on the pleadings and can be determined without hearing evidence. While the plaintiff says the facts in the pleadings are not in dispute, the reality is a conclusion on a crucial point in this litigation can only be reached by weighing the evidence provided in the affidavit material. This is not consistent with the comments in Larsenand Golden Gate Seafood.

[29]         While I am sympathetic to the concern of costs of a 10-day trial raised by the parties, I also note this is an important issue with far-reaching consequences. Jurisprudence has been cited to me from Alberta and other jurisdictions. It has not, however, been definitively dealt with in the B.C. courts. I also note it may be that the parties are able to reach agreements on the evidence such that only the points of contention are proffered for testing in a trial setting.

[30]         The application is therefore dismissed.

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

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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.

Personal Injury Lawyers Cannot "Stack" Contingency Fees After Being Fired

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Important reasons for judgement were released today  by the BC Supreme Court, Vancouver Registry, confirming lawyers working on a contingency basis cannot ‘stack’ contingency fees after being discharged.
In today’s case (Holness Law Group Professional Law Corporation v. Mann) the client was injured in 4 vehicle collisions and retained a lawfirm to advance her claims.  Before conclusion she discharged her initial lawyer and hired new counsel.  The claims were subsequently settled and a contingency fee of 30% was charged.  The client took no issue with the reasonableness of the global fee but a disagreement arose as to how much the first lawyer was entitled to.  That lawyer argued that
“they are not bound by another firm’s contingency fee agreement and that they are entitled to their contractual contingency fee regardless of what may be charged by a subsequent law firm.”
The court disagreed noting the firms cannot ‘stack‘ contingency fees and the single global fee must be split.  In reaching this decision District Registrar Nielsen provided the following reasons:

[20]         If the position of HLG was given effect, it would result in the stacking of contingency fees, and conceivably give rise to a situation where combined contingency fees could consume an entire award of damages. If enough lawyers were dismissed and others retained along the way to the conclusion of the case, the combined contingencies could conceivably amount to100% of any damages awarded. This would be an absurd result and contrary to s. 66 of the LPA.

…

[23]         The Law Society Rules set a maximum fee allowable under a contingency fee agreement and provides that the total fee payable by the client must be reasonable in the circumstances and not exceed 33 1/3% of the amounts recovered in a personal injury claim arising out of the use of a motor vehicle.

[24]         Pursuant to s. 66(6) and (7) of the LPA, a fee in excess of 33 1/3% must be approved by the court, before entering into the contingency fee agreement, otherwise it is void pursuant to s. 66(4) of the LPA.

[25]         If contingency fees were stackable, from firm to firm, not only would the contingency fees potentially exceed the Law Society’s maximum in short order, this would ultimately exploit clients and dissuade them from dismissing a lawyer who the client may no longer wish to represent them. Despite losing confidence in their counsel, a client could be forced to continue to retain that lawyer for fear of escalating fees. This would not be in accord with justice and fair play.

…

[33]         In the present case, both law firms participated in the outcome of the same matter, with the same client. Both firms were engaged on a contingency fee basis. Both firms agree their fee would be calculated on a 30% contingency fee basis, given the stage at which the case was settled.

[34]         This is a case where justice and fair play require a single fee to be apportioned between the two firms on a quantum meruit basis, taking into account all the circumstances and factors expressed by s. 71(4) of theLPA. That fee cannot exceed the 33 1/3% limit set by the benchers pursuant to s. 66(2) of the LPA.

$3 Million "Diminished Capacity" Award For Brain Injured Teen Who Planned on Being Engineer

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages of $3 million dollars for a Plaintiff who sustained a brain injury in a vehicle collision.
In today’s case (Grassick v. Swansburg) the Plaintiff, who was 16 at the time, was a pedestrian and struck by a vehicle driven by the Defendant.  The Plaintiff suffered a moderate to severe brain injury which impacted his cognition and was expected to have permanent repercussions.
The Court found that the Plaintiff was an ambitious and hard working young man who, but for the brain injury, would have had a successful career in his anticipated profession as a civil engineer.  In assessing damages of $3 million for diminished earning capacity Madam Justice Loo provided the following reasons:
[197]     I do not accept the defendant’s argument that Stirling’s part-time employment as a server in a retirement home and his work during his co-op placements demonstrate that he has an ability to do well in the workplace. Quite the opposite. His work at Maple Reinders is a forecast of the difficulties he will have with maintaining employment.

[198]     While Stirling suffers only mild cognitive impairments, they are potent for him. His cognitive impairments directly impact his drive to excel. Perhaps if he was content to be less than average at everything he does, it would not matter so much. But he was not, and is not content to be being average.

[199]     Predicting what his future earning capacity would have been, but for the accident, is a complex task and the potential range of his earnings is broad. The plaintiff relies on the expert report of Darren W. Benning, economist, for the estimated lump sum present value of lifetime earnings of a British Columbia male civil engineer. The defendant did not require Mr. Benning to attend for cross-examination.

[200]     There is a range of possibilities for Stirling; from being, for lack of a better term, an average or 50th percentile engineer earning from May 1, 2016 when he is expected to graduate, through to age 65. Based on the present value of life-time earnings, $2,399,956. However, that figure – as do all of the figures provided by Mr. Benning – includes 24.2 percent reduction for the average labour market contingencies: unemployment, part-time work and part-year work. Without those contingencies, the figure for the 50th percentile engineer is $3,166,172.

[201]     Mr. Benning has also provided figures for engineering managers. With the labour market contingencies, the figures are $3,149,822 for the average engineering manager, and $3,868,882, and $4,880,954 for the 80th and 90th percentiles, respectively. Without the labour contingencies, the figures are $4,155,437, $5,104,065 and $6,439,253.

[202]     I conclude that there is a real and substantial possibility that Stirling would have worked for a number of years as an “average” engineer, before moving up the ranks of engineers. He would have worked full time, and his professional career would be an important part of his life.  He would have succeeded in becoming one of the higher paid engineers, a well above average engineer, or an upper management engineer.

[203]     Stirling may, like many professionals, work past the age of 65. On the other hand, he may, like other professionals, decide to retire early and do other things. However, given Stirling before the accident, and now, I do not think he is the kind of person who would choose to work part year or part time.

[204]     The plaintiff seeks damages for loss earning capacity in the sum of $3 million. I find this sum to be both reasonable to him and to the defendant. I award $3 million for loss of future earning capacity.

Medico-Legal Expert Criticized for Destroying Digital Recording of IME Before Trial

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Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, criticizing an expert for destroying digitally recorded observations made during an independent medical assessment.
In today’s case (Birkich v. Canatio) the Plaintiff, involved in a  personal injury prosecution, was examined by a physiatrist who authored a report for trial.  Prior to testifying the physician destroyed digitally recorded observations of the examination.  The Defense objected to the report from being admitted but the Court reluctantly allowed the report into evidence based on the fact that the physician explained the report accurately transcribed what was digitally recorded.  In criticizing this practice Mr. Justice Betton provided the following reasons:

[10]         Given the evidence that I do have on this voir dire, specifically from Dr. Apel, that this is a verbatim transcription (with only the editing that I have described) of what was on the now destroyed digital recording, I am not inclined to grant the defence application to not allow the report. Whether, and to what extent, the examination of Dr. Apel will affect my ultimate conclusion about the weight of her opinions is yet to be determined, but I do not want there to be any illusion that this in any way endorses the practice that Dr. Apel undertook in this case or, from her evidence, what has gone on for some 20 years. It is wrong, it is not in compliance with theRules, it is not to be endorsed, and this decision should not in any way be seen as endorsing that.

[11]         I am going to direct as part of my order here that, at the plaintiff’s expense, a transcript of my decision on this voir dire be prepared and a copy of it be provided to Dr. Apel. To the extent issues of this nature might arise in the future, in respect of Dr. Apel at least, this decision may be brought to the attention of a court dealing with issues on those occasions such that it would be considered in any decision that might be made about future reports. If there is, not that I think that there should be, but if there is any misapprehension or confusion among the bar about the nature of instruction letters and what experts should be informed of, I would hope that this decision might, in some measure, resolve that because it is simply unacceptable. It is an easy process in this digital age for that information to be retained, it is abundantly clear from the Rules what the intention is, and to be faced with these sort of issues, in my view, is something that simply should not be occurring.

Expert Who "Did Not Meet With, Examine Or Interview" Plaintiff Given Zero Weight

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In the latest case  (Preston v. Kontzamanis) of courts having critical comments for medico-legal practices, reasons for judgement were released today by the BC Supreme Court, Quesnel Registry, rejecting the opinion of a defence retained doctor who “did not meet with, examine or interview” the Plaintiff but nonetheless authored a report opining on the Plaintiff’s injuries.
In criticizing this practice Mr. Justice Parrett provided the following comments:

[125]      The defendant provided and relied upon what purported to be an independent medical report (IME) by Dr. Boyle.

[126]     Dr. Boyle readily acknowledged that he was not asked to and did not meet with, examine or interview the plaintiff.

[127]     Dr. Boyle reviewed documents and information provided by counsel and wrote his report.

[128]     These documents and that information included clinical records of various medical professionals.

[129]     This is a process that is unlikely to assist the court in any material way.  The first concession is invariably, and was in this case, that interviewing, examining and getting a personal history is important to providing an accurate and complete assessment.

[130]     This is a trend that appears to have been of relatively recent origin.

[131]     It is also a trend which has drawn adverse comment from judges of this court.  Dhaliwal v. Bassi 2007 B.C.S.C. 549 (Burnyeat, J. at paras. 2-3); Ruscheinski v. Biln 2011 B.C.S.C. 1263 (Walker, J. at paras. 85-87);Rizotti v. Doe 2012 B.C.S.C. 1330 (Tindale, J. at para. 35).

[132]     To these I would add my own comments.  Where an expert chooses to prepare a report as he did here, expecting this court to accept and rely on it.  He is presenting a report in which he effectively asserts that he accepts as true and accurate the factual base on which his opinions are based.

[133]     Where he does so without seeing, examining or taking a personal history he chooses to offer his opinion on the basis of hearsay.  Worse still he chooses to offer it on the basis of his interpretation of hearsay recorded by others.

[134]     Another difficulty presents itself with respect to the report and evidence of Dr. Boyle and the report of Dr. Hawk.

[135]     The clinical records and other documents were admitted under the terms of a document agreement which was entered as Exhibit #1.

[136]     Under the terms of that agreement the use of documents in general, which includes clinical records, is limited.  Paragraph 2 and 5 of that document are particularly notable.

[137]     In my view, Dr. Boyle’s report should be afforded the weight it deserves and in this case where credibility and exaggeration are both asserted against the plaintiff by the defendant that is no weight at all.

[138]     It was not argued in this case that the report was inadmissible and Dr. Boyle’s qualifications to give an expert opinion on this case and in these circumstances was not addressed. I leave it then to another day and for full argument for this court to consider whether the requirements are met to allow the report to be received at all in these circumstances.

Insurance Giant Argues Former In House Lawyer Cannot Act for Plaintiff Suing Them

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing arguments by the Manufacturer’s Life Insurance Company attempting to have a former in-house lawyer of theirs acting as plaintiff counsel in a breach of contract claim against them.
In today’s case (McMyn v. Manufacturer’s Life Insurance Company) the insurer argued that, as a former in-house lawyer, Plaintiff’s counsel had knowledge of their “business practices, litigation strategies, insurance policies and certain claims personnel” and it would be unfair to allow him to now use this knowledge against them.
In dismissing the application Mr. Justice Myers provided the following reasons:

[32]    With respect to the claim for LTD benefits, it is up to the plaintiff to show that she fell within the terms of the policy.  The terms of the policy are certainly not secret.  It cannot be argued or assumed that Manulife has some secret interpretation of the policy that Mr. Fishman has knowledge of.  It is hard to see that knowledge of the claims people would have any effect on Mr. Fishman’s train of inquiry on that issue, including the handling of examinations for discovery.  As in most LTD claims the real issue will no doubt be – and no one argued otherwise – Ms. McMyn’s medical condition and how that fits into the wording of the policy.

[33]    With respect to the bad faith claim, the plaintiff must show a failure of Manulife to act with reasonable promptness or a failure to deal with the insured fairly:  702535 Ontario Inc. v. Non-Marine Underwriters, Lloyd’s London, England, [2000] O.J. No. 866 (Ont. C.A.).  That will obviously depend on the way this claim was handled based on the evidence in this case.  Knowledge of how the claims people may have handled past claims will be of little or no assistance.

[34]    Manulife argued that Mr. Fishman has insight into how the claims people or Mr. Lizé perform in examinations for discovery.  That might be true.  But it must be put into perspective.  First, in terms of witnesses selected for examination for discovery or at trial, the relevant witnesses are those that have familiarity with the facts of the claim.  That is something that any lawyer would be able to ascertain through document discovery or interrogatories.  Mr. Fishman has no inside knowledge of that because he was not at Manulife when the plaintiff filed her claim.

[35]    Knowledge of how Manulife personnel perform in examinations for discovery might provide a minor advantage.  But any lawyer who had previously done an examination for discovery or cross-examination in trial of that witness would also have that insight.  It is to be borne in mind that Manulife as a major LTD insurer in Canada is an institutional litigator.  This is not a one-off claim being made against it.  Any lawyer specialising in LTD claims would be expected to act against Manulife multiple times and most likely come up against the same Manulife personnel.

[36]    Insofar as Mr. Fishman being aware of Manulife’s claims handling procedures, once again he has been gone from the company for over two years.  The issue will be the way this claim is handled.  If there are Manulife claims handling manuals their existence will come out in the examinations of discovery conducted by any counsel.

[37]    In Sandhu the Court noted, at para. 32, that the approach to this type of application is a “cautious one” and that the court should only interfere in “clear cases”.  While the Court of Appeal disqualified the lawyer, this case comes nowhere near to the facts in that case, where the lawyer had knowledge of confidential information pertaining directly to her new client.

[38]    Regarding Mr. Fishman having handled bifurcation applications, Manulife said Mr. Fishman is aware of Manulife’s preference for bifurcation of bad faith claims.  So would any lawyer who was previously on the receiving end of that type of application from Manulife.  In this case, the simple fact is that Manulife will make the application or it will not.  I fail to see what confidential strategy could have been involved in bifurcation claims that would give Mr. Fishman an advantage.

[39]    Finally, I do not place any significant weight on Mr. Lizé having been appointed as the case manager on this file.  He was not appointed until after Manulife knew that Mr. Fishman was acting on the case.  Manulife also appointed Mr. Lizé as the case manager on the Galley action.  Manulife says it would be inconvenient to appoint another case manager, because they would have to come from out of town for discoveries, trial or meetings.  However, for a company the size of Manulife that must be a small consideration.

[40]    In Atco, the Court concluded that the case the lawyer was acting on against Atco was sufficiently connected to the work he had done at Atco to raise the rebuttable presumption that he had confidential information pertaining to the new retainer.  The connections in that case were more direct than the ones here.  In Atco the lawyer knew all of the data and other corporate information relevant to Atco’s rate applications.  Here, there is only a general knowledge of claims practices and company personnel.

[41]    I conclude that the connections between this case and the work Mr. Fishman did at Manulife are not sufficient to raise the presumption that he had obtained confidential information that could be used in this case.