Expert Criticized for Becoming "an Advocate for the Defence"

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.

Advocacy in the Guise of Opinion, bc injury law, Mr. Justice Dley, Odian v. Carriere

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ERIK
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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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