Defense Expert Witness Receives Judicial Drubbing

It seems there has been a lot of judicial scrutiny as of late of expert witnesses crossing the line into client advocacy.   Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, providing the latest example of this.
In last week’s case (Thibeault v. MacGregor) the Plaintiff was injured in a 2010 collision.  It was a so-called ‘low velocity impact’ but the Court rejected this defence and found the Plaintiff did sustain a moderate whiplash injury.  Non-pecuniary damage were assessed at $35,000.  In the course of the lawsuit the Defendant arranged for an independent medical exam of the Plaintiff.  This physician provided opinion evidence which the Court largely rejected.  In doing so Mr. Justice Weatherill provided the following criticism:
[95]         Counsel provided detailed written submissions on the issue of the Vondette Report’s admissibility.  I agree generally with the submissions of plaintiff’s counsel.  Dr. Vondette’s report is prolix in the extreme.  Dr. Vondette’s review of the plaintiff’s background was beyond thorough and comprehensive – it reported the minutia of the plaintiff’s social, family, psychological and medical history.  He opines on matters that have no relevance to the plaintiff’s claim in this proceeding: He overreaches into the areas reserved for the trier of fact.  He makes remarks that go solely to the plaintiff’s credibility.  His report in many places is argument in the guise of opinion.  Much of the report purports to be opinion when what is written is not an opinion at all but rather a regurgitation of the plaintiff’s complaints. ..
97]         After hearing counsel’s submissions, I concluded that Dr. Vondette was probably an expert whose opinions, properly articulated, could be of benefit to the Court.  Although I found the vast majority of the Vondette Report to be inadmissible, I decided that it was in the interest of justice to grant leave allowing Dr. Vondette, with counsel’s assistance, to produce a summary of those portions of the Vondette Report that are properly admissible.
[98]         Dr. Vondette did so.  His summary (“Summary”) is two pages in length and captures succinctly and helpfully the opinions he was attempting to express in his report.  The Summary, together with counsel’s letter of instruction and appendices “A” and “E” from the Vondette Report were collectively marked as Exhibit 7.
[99]         Unfortunately, Dr. Vondette’s oral testimony was not as helpful as was the Summary.  He returned to the prolix method of communicating that he suffered from when writing his report.  He sought to justify this communication method on the basis that “I am a competent and thorough physician” and that any review of the plaintiff’s circumstances that was less than comprehensive and itemized is “rubbish”.
[100]     Dr. Vondette pontificated throughout his testimony regarding the virtues of his specialty and his experience within it.  In addition to the field of physiatry, he apparently views himself as having bountiful knowledge in other specialties in which he has no formal training, including psychiatry, psychology gynecology, physiotherapy, family medicine, social work and occupational therapy.  He testified that his expertise is such that he tells physiotherapists “exactly what I want done”…
[103]     Dr. Vondette was argumentative and condescending throughout his cross-examination.  Virtually all of his answers were lengthy monologues.  He was critical of Dr. MacKean’s March 5, 2012 report because it was only two pages in length.  He was critical of her December 5, 2012 report because, in forming her opinion, she reviewed and relied upon only her March 5, 2012 report and Dr. Salmaniw’s two July 2012 reports. 
[104]     Dr. Vondette refused to agree that Dr. Salmaniw, as the plaintiff’s family doctor for more than 20 years, knew more about the plaintiff and what was best medically for her than he did after a three hour consultation.  In Dr. Vondette’s words: “I think I can reasonably size up what’s going on here”.
[105]     Finally, Dr. Vondette described Mr. Harvie’s physiotherapy methods as “strange off-shore theories followed by a bunch of over-excited disciples”.  In his view, the plaintiff needed to be taken out of the hands of Mr. Harvie and sent to a physiotherapist who is more orthodox and who performs scientifically validated forms of treatment.
[106]     Needless to say, the approach to the role of an expert witness in the context of court proceedings that Dr. Vondette followed is unhelpful, counterproductive and is to be discouraged.  It is not within the purview of an expert witness to determine facts or issues of credibility and reliability: Brough v. Richmond, 2003 BCSC 512 at paras. 14 – 17.  Unfortunately, Dr. Vondette allowed his subjective views of the plaintiff formed from his review of her medical and personal history to overwhelm whatever impartiality he may initially have had.  I have been unable to take meaningful guidance from his opinions and testimony.  To the extent that his opinions conflict with those of Drs. Salmaniw, MacKean and Reeves, I accept the opinions of the latter experts and reject those of Dr. Vondette.

Advocacy in the Guise of Opinion, bc injury law, moderate whiplash, Mr. Justice Weatherill, Thibeault v. MacGregor

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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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