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ICBC Expert that Testified “he could not have been in error” Rejected by BC Supreme Court

Reasons for judgment were published today by the BC Supreme Court, Victoria Registry, assessing damages for chronic pain and anxiety following a vehicle collision.

In the course of the claim ICBC’s expert witness whose opinion was “predicated on inaccurate and critical factual assumptions” was rejected.

In the recent case (Nadeau v. Toulmin) the Plaintiff was involved in a 2016 collision.  The crash resulted in chronic pain and anxiety.  In the course of litigation ICBC retained a physician who provided opinion evidence minimizing the plaintiff’s injuries and their connection to the collision.  In finding that the court was “unable to give his opinions any weight” the following critical reasons were provided by Mr. Justice Walker:

[130]    Unfortunately, it is clear from reading his report and listening to his testimony that Dr. Solomons’ opinions are predicated on inaccurate and critical factual assumptions.

[131]    For example, in his testimony, Dr. Solomons confirmed that he incorrectly thought that Ms. Nadeau did not return to driving a school bus after the Accident:..

[132]    He said that he only realized later that she returned to bus driving for a short time when he read a report from Ms. Nadeau’s family doctor:…

[133]    He incorrectly assumed and wrote in his report that Ms. Nadeau returned to regularly driving a vehicle following the Accident. He incorrectly believed that Ms. Nadeau “regularly” drives a vehicle and has no “anticipatory” anxiety getting into one nor increased anxiety driving with her granddaughter as a passenger. He also incorrectly said that Ms. Nadeau drives her granddaughter to school five days per week and that she drives herself to work three days per week.

[134]    When pressed in cross-examination, Dr. Solomons testified that he could not have been in error about these factual assumptions.

[135]    He confirmed the significance of his factual assumptions to his opinion in cross-examination:…

[137]    Dr. Solomons resiled from his diagnosis concerning Ms. Nadeau’s anxiety when challenged in cross-examination. He conceded it did not resolve within one month. However, he remained resolute in what he conveyed as his strongly held opinion that Ms. Nadeau does not suffer from any psychological injury or anxiety issues of any significance. In doing so, it was clear that he placed significant focus on his understanding that Ms. Nadeau continues to have little difficulty driving a vehicle.

[138]    I am satisfied that Dr. Solomons’ inaccurate factual assumptions, which are clearly belied by the unchallenged and highly credible and reliable evidence of Ms. Nadeau and the lay witnesses, caused him to reject the veracity of Ms. Nadeau’s account of her symptoms. As a consequence, and unlike Drs. Grabowski, Paramonoff, and O’Breasail, Dr. Solomons did not place the same weight on Ms. Nadeau’s account of her anxiety and behaviours while in a motor vehicle. I agree with Ms. Nadeau’s submission that Dr. Solomons also discounted the diagnosis made by Ms. Nadeau’s family physicians who prescribed her psychotropic medications to help with her anxiety and mood issues….

[145]    The opinions expressed by Dr. O’Breasail in his report and testimony are clear, candid, objective, without advocacy or argument, and premised on an analysis of facts proven in evidence. I accept his opinions in their entirety. In light of the significant factual inaccuracies underlying Dr. Solomons’ evaluation, I am unable to give his opinions any weight.

Advocacy in the Guise of Opinion, bc injury law, Mr. Justice Walker, Nadeau v. Toulmin