Court Finds High Billing ICBC Expert "Strayed Into Advocacy"

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, finding a high billing ICBC expert witness’ evidence should be afforded “very little weight” in part based on advocacy.
In today’s case (Redmond v. Krider) the Plaintiff was injured in a 2010 collision that the Defendant was found solely at fault for.  The Plaintiff suffered various physical injuries along with an accompanying psychiatric condition.  The Defendant retained a psychiatrist who gave evidence “that the plaintiff did not develop a new major psychiatric condition due to this motor vehicle accident”.  The Court rejected this evidence and in doing so Madam Justice Maisonville provided the following critical comments:

[115]     Dr. Levin obtained his initial medical qualifications in the then Soviet Union.  There was much questioning of the nature of certain patient treatment at one of the institutes from where he had received his training. 

[116]     Dr. Levin was also cross-examined on the amount of income he received in 2013 from ICBC, and from the Medical Services Plan. .  Suffice it to say that 91% of his income for 2013 was derived from ICBC reports.  In 2012, it was 87%, in 2011, 78% and in 2010, the year of the accident, 60%.  Plaintiff’s counsel therefore argued that Dr. Levin’s report was not in keeping with the Supreme Court Civil Rules, in that it was biased and so not a neutral opinion rendered by an expert for the benefit of the Court…

[120]     Overall, Dr. Levin testified that the plaintiff did not develop a new major psychiatric condition due to this motor vehicle accident, and he found that her level of functioning was inconsistent with the diagnosis of a pain disorder found in her family physician’s clinical records.  He submitted the fact that she had travelled to Las Vegas and participated in boating with her partner went against the conclusion that she was suffering from a psychiatric condition.

[121]     While I have accepted that Dr. Levin is an expert, I find that his report is to be afforded very little weight given his testimony at trial, and given the extent to which his report strayed into advocacy.  It is difficult to ignore the percentage of yearly income gained by the doctor as an expert for one particular party, ICBC, although this alone is not determinative in my finding that Dr. Levin’s report should be afforded little weight. 

[122]     I note that the doctor was argumentative with counsel.  The Court was often required to direct him to answer, as he would not clearly give his evidence in response to simple questions asked.  On cross-examination, he agreed he was not a practicing physical medicine doctor and that he did not assess the plaintiff’s physical injuries, and would defer instead to the plaintiff’s physical medicine doctors, and yet he commented that the plaintiff’s pain and limitations were inconsistent with her stated injuries.  It was difficult to accept his evidence, for the further reason that Dr. Levin stated that if the DSM-5 criteria were applied as a checklist, everyone in the courtroom would have a number of psychiatric diagnoses.  I do not accept that evidence…

[125]     In his report, Dr. Levin said that the plaintiff does not suffer from somatic symptom disorder, as the requirements of that diagnosis are a catastrophic perception of injuries, pervasive preoccupation with pain, and time-consuming, excessive activities.  However, that is not the criteria set out in the DSM-5 which was put to Dr. Levin.  That criteria requires only that there be “[o]ne or more somatic symptoms that are distressing or result in significant disruption of daily life”.  Somatic symptom disorder is a spectrum disorder, and Dr. Levin agreed with that proposition, and yet in his report, he was clearly evaluating the diagnosis as existing only if symptoms fall at the severe end of the spectrum.

[126]     Most difficult for the Court, however, was the aspect of Dr. Levin’s evidence discussing the somatic symptom disorder as it applies to the plaintiff.  As mentioned, he discussed commentary from the DSM-5 about those symptoms that may occur with severe cases of somatic symptom disorder, rather than the specific criteria.  When cross-examined on the actual diagnostic criteria, it became clear that he had not asked the plaintiff questions to determine if she met the diagnosis set out in the DSM-5.

[127]     I do not accept Dr. Levin’s evidence.  I prefer Dr. Anderson’s evidence over that of Dr. Levin.  Dr. Anderson candidly conceded matters, such as that the plaintiff would have a better prognosis if the physical component of her pain disorder was removed, and Dr. Anderson deferred to the physical medicine doctors respecting the plaintiff’s physical pain.  In contrast, Dr. Levin assumed this responsibility and asserted that, as a consequence, the plaintiff did not suffer from any a new psychiatric condition.

[131]     I do not accept Dr. Levin’s opinion and give it no weight.

Advocacy in the Guise of Opinion, bc injury law, Madam Justice Maisonville, Redmond v. Krider

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ERIK
MAGRAKEN

Personal Injury Lawyer

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

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