Defense Doctor Criticised For “Advocacy” and Requiring Cross Examination to “Ferret Out” Opinions

Adding to this site’s archived posts of judicial criticism of expert witness advocacy, reasons for judgment were published today by the BC Supreme Court, New Westminster Registry, rejecting a defence expert for shortcomings in their opinion evidence.

In today’s case (Soltan v. Glasgow) the Plaintiff was injured in two collisions that the Defendants accepted fault for.  In the course of litigation the Defendants retained an orthopaedic surgeon who provided opinion evidence minimizing the impact of the Plaintiff’s injuries and prognosis.  In finding it “difficult to ascribe any weight” to these opinions Mr. Justice Saunders provided the following critical comments:

[32]         Having said that, I find it difficult to ascribe any weight to Dr. Boyle’s opinion. His opinions as to the “greater than 50%” likelihoods of certain outcomes, as described above, were stated in a conclusory manner. Rule 11-6 of the Supreme Court Civil Rules, B.C. Reg. 168/2009 requires that an expert state the reasons for their opinion, and indeed the letter of instruction from ICBC to Dr. Boyle specifically asked him to provide his reasons. In contrast to Dr. Hershler, who explicitly stated in his October 2015 report that his opinion was based on his experience with patient outcomes, and the fact that recovery can be prolonged when there have been multiple accidents, Dr. Boyle did not set out what path of reasoning led to the opinions he expresses. His report stated a number of positive and negative prognostic factors, but he did not weigh or analyze them in any fashion.

[33]         If Dr. Boyle’s unstated reasoning behind his opinions was simply that there were no objective signs of pathology, then his failure to acknowledge the subjective nature of pain and the possibility that Ms. Soltan may have found her pain levels intolerable, would mark his report as a work of advocacy. So too would his implication that a prognosis for probable full resolution of soft tissue symptoms may be based solely on objective criteria. The function of an expert witness is to assist the court, not to take sides. To demonstrate fairness and balance, Dr. Boyle’s acknowledgement of the potential for subjective pain being limiting and disabling, even in the absence of objective signs, ought to have been stated frankly in his report and not left to be ferreted out in cross-examination.

[34]         I also note that Dr. Boyle did not state in his report that Ms. Soltan’s decision to take time off work, commencing in February 2017, would not have been a reasonable approach to managing her symptoms and attempting to accelerate the process of recovery.

[35]         For these reasons, I prefer and accept the opinions of Dr. Hershler.

Advocacy in the Guise of Opinion, bc injury law, Mr. Justice Saunders, Soltan v. Glasgow

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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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