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Defence Expert Evidence Rejected After Testimony With “Considerable Controversy”

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, rejecting the opinion evidence of a defence hired orthopaedic surgery on the grounds that the opinions were prohibited advocacy.

In today’s case (Dhugga v. Poirier) the Plaintiff was involved in 2 collisions that the Defendants conceded liability for.  The collisions resulted in chronic injuries.  In the course of the litigation the Defendants retained an orthopaedic surgeon who provided evidence minimizing the connection between the plaintiff’s symptoms and the collisions.  In rejecting this evidence as advocacy in the guise of opinion Mr. Justice Jenkins provided the following critical comments:

[57]         Dr. Marks is an orthopaedic surgeon who prepared a report for the defence dated March 8, 2017, and an addendum report dated March 6, 2019. He appeared for cross-examination at trial by way of video conference.

[58]         Dr. Marks’ reports and testimony in this case, and previously in this Court, has raised considerable controversy and allegations of opining in areas outside his expertise and that his evidence suggests he is acting more as an advocate for his client, as opposed to providing an unbiased report and testimony as is required of expert witnesses…

[62]         Returning to the suggestion that Dr. Marks was attempting to be an advocate for the defence as opposed to an independent, unbiased expert, I find that throughout his cross-examination he continually avoided answering simple questions and/or attempted to avoid answering by stating that the circumstances of Ms. Dhugga were very complex without explanation.

[63]         Dr. Marks was also cross-examined on the issue of whether he, as an orthopaedic surgeon, could offer an opinion on chronic pain in relation to the circumstances of a patient. His answer was that “chronic pain is in my expertise”, that he “trains physiatrists” and “never defers to a physiatrist on an issue of chronic pain”. That testimony conflicts with the findings of Justice Greyell in Flores v. Burrows, 2018 BCSC 334, the reasons for judgment of which were put to Dr. Marks, specifically para. 76, in which Justice Greyell stated:

In cross-examination, Dr. Marks agreed that the majority of his lectures were in the area of knee injuries but said knees were representative of joint study and that, in any event, his medical practice included all types of soft tissue injuries, including hips. He agreed that he could not offer an opinion on the issue of chronic pain as that was not within his area of expertise but rather in the expertise of a physiatrist.

[64]         It would be unrealistic to assume that Mr. Justice Greyell would have been mistaken in concluding Dr. Marks “agreed that he could not offer an opinion on the issue of chronic pain as that was not within his area of expertise but rather in the expertise of a physiatrist”. It is not reasonable to suggest Dr. Marks’ expertise has shifted in the less than two years since that judgment was released. That finding conflicts directly with the testimony of Dr. Marks under cross-examination in this trial in which he stated “chronic pain is in my area of expertise” and he never defers to a physiatrist on an issue of chronic pain.

[65]         For the above reasons I do not accept the opinions of Dr. Marks that the pain suffered by Ms. Dhugga was not related to the motor vehicle accidents.

Advocacy in the Guise of Opinion, Dhugga v. Poirier, Mr. Justice Jenkins