Court Rejects Expert Witness Who Gave “Evidence Unworthy of Reliance”

In one of the stronger judicial reasons rejecting expert witness evidence that I have read in recent years reasons for judgement were published today by the BC Supreme Court, Courtenay Registry, finding a defence expert gave evidence that was superficial, out of his area of expertise and “unworthy of reliance“.

In today’s case (Radewulf v. Kelly) the Plaintiff sustained chronic and disabling injuries in two collisions.  The Defendants retained an orthopaedic surgeon who provided the court with evidence minimizing the plaintiff’s symptoms and their connection to the collisions.  In outright rejecting this opinion the Court provided the following critical reasons noting that even the defence lawyer backed away from the witness’ opinions:

[82]         Dr. Robert, an orthopedic surgeon, saw Ms. Raedwulf on June 7, 2019. His examination was extremely brief, between 35- 45 minutes in total. He took a personal phone call in the middle. The physical examination was 10 minutes.

[83]         His report lacks detail. Although he claims to have reviewed reports and records of other medical professionals, they were not referenced in his report or in his evidence. In fact, in his report he listed only one item under the heading Review of Medical Documents: “Consultation with Dr. Davidson, March 19, 2018.” Of note I did not hear from a Dr. Davidson in this trial. In his evidence Dr. Morgan stressed that he was just giving his opinion, not commenting on anyone else’s. If he did in fact review the records, he had no memory of them whatsoever.

[84]         He approached the examination with very strongly held ideas such as:

i.        “I expect any severe soft tissue injury to be completely healed within 40 days”;

ii.        “People complain beyond 40 days because of behaviour magnification which is propagated by the medical and legal system. That’s my belief”;

iii.       “Pain is part of being human. It is a part of life. We all have pain”;

iv.       Muscle spasms last 2 to 3 weeks. If someone says that they have a muscle spasm, “I take it with a grain of salt”.

[85]         I find that Dr. Robert failed to fairly and comprehensively examine Ms. Raedwulf. His assessment of her injuries is tainted by his strongly held views which preclude the possibility of any plaintiff ever experiencing lasting soft tissue physical injury. His report is superficial. He overstepped his field of expertise by commenting on her ability to work full-time. He also overreached when he concluded that Ms. Raedwulf needs no treatment. In doing so, he completely dismissed her self reports of pain as well as the reports of other medical professionals.

[86]         In all I find Dr. Robert’s evidence unworthy of reliance. I reject it. I note that the defendants did not ask me to accept Dr. Robert’s evidence in their closing submissions, nor did they rely on it.