Defence Expert Opinion Rejected for "Compromised Objectivity"

As previously discussed, the law in BC provides expert witnesses with immunity when they provide negligent opinions in the medico-legal context.  This gap in the law is unfortunate and has been done away with in the UK.  Unless BC follows suit, the only meaningful avenue in discouraging “advocate” expert evidence is judicial rebuke.
To this end I have been highlighting judicial criticism when it arises with respect to expert opinion evidence.  Adding to this collection are reasons for judgement released this week by the BC Supreme Court, Vancouver Registry, dismissing an expert’s opinion concluding it would be “unsafe for the Court to put any stock in his opinion“.
In this week’s case (Sooch v. Snell) the Plaintiff was involved in a 2006 collision in Kelowna, BC.   He sustained soft tissue injuries to his neck and shoulder and was awarded $45,000 for his non-pecuniary damages.  In the course of the lawsuit the Defendant had the Plaintiff examined by a retired orthopaedic surgeon.  This doctor testified at trial and provided an opinion that it was “unlikely that there was any direct injury to the cervical spine or shoulder at the time of the injury“.
After cross examination the Court was unimpressed with this experts opinion.  In rejecting this expert’s evidence Madam Justice Ballance provided the following criticism:

54] Dr. Christian retired from his practice as an orthopaedic surgeon in 2005.  Since then, he has focussed his practice on disability evaluation.

[55] Dr. Christian conducted an independent medical examination of Mr. Sooch on March 18, 2010.  He spent between 45 and 55 minutes assessing Mr. Sooch.  He did not keep detailed notes, preferring instead to occasionally jot down a point or two and then dictate his findings and opinion immediately after the examination…

[60] It is obvious on the face of Dr. Christian’s report that in reaching his conclusion on causation, he relied heavily on this misconception as to the timing of Mr. Sooch’s medical appointment on the day of the Accident.  Yet, after he became aware that Mr. Sooch had actually gone to the medical clinic some hours before the Accident had taken place, he denied placing any importance on his mistaken belief.  He insisted that it was not in his “consciousness”, and was of marginal importance, if any, and maintained that knowledge of the true state of affairs would not have changed his opinion one way or another.

[61] The unfolding of Dr. Christian’s cross-examination on that and related matters was uncomfortable to observe.  At times, his demeanour was combative and the entire exchange on the issue of causation called his impartiality into question.  Dr. Christian’s responses to other lines of questioning were also sometimes argumentative and displayed a compromised objectivity.

[62] I am not able to credit Dr. Christian’s assertion that his mistaken impression about the timing of Mr. Sooch’s appointment on the day of the Accident did not impact his opinion on causation.  It plainly did…

[73] Based on the criticisms I have already expressed about the lack of balance in Dr. Christian’s assessment of Mr. Sooch’s pre-Accident soft tissue complaints, and his refusal to concede that his opinion on causation was partially fastened to his misunderstanding about the timing of Mr. Sooch’s medical appointment on the day of the Accident and other troubling aspects of his testimony, I consider it unsafe for the Court to put any stock in his opinion…

Advocacy in the Guise of Opinion, bc injury law, benchslap, Madam Justice Ballance, Sooch v. Snell

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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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