ICBC Expert Witness Rejected for "Facile and Argumentative" Testimony

Adding to this ever growing database of case comments criticizing expert witnesses for advocacy, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, rejecting the evidence of an orthopaedic surgeon hired by ICBC and providing critical comments about his courtroom testimony.
In this week’s case (Devilliers v. McMurchy) the Plaintiff was involved in a 2008 collision.  She sustained “a significant back injury leading to significant pain that has become chronic and likely permanent“.  The Plaintiff was awarded non-pecuniary damages of $75,000.  In the course of trial the Defendant called an orthopaedic surgeon who minimized the connection between the plaintiff’s symptoms and the collision.  In rejecting this opinion Mr. Justice Saunders provided the following critical comments:
[34]         I am not persuaded by the alternative theories Dr. Grypma put forward. In attributing Ms. De Villiers’ continuing symptoms in part to deconditioning, Dr. Grypma completely overlooked Ms. De Villiers’ ongoing exercise routine, which has led to a 90-pound weight loss. He also gave no explanation as to how the relatively mild degenerative changes seen in the MRI study could account for Ms. De Villiers’ chronic pain and its resistance to the various treatments she has undertaken, without the accident having been a critical factor in the onset of her complaints. To accept his changed opinion, I would have to find that the emergence of symptoms of back pain in proximity to the accident was mere coincidence. I am not prepared to make that finding.
[35]         Furthermore, Dr. Grypma’s interpretation of Dr. Schuurman’s CL-19 report as only demonstrating a Grade I soft tissue injury overlooked the fact that Dr. Schuurman clearly found it to be a Grade II injury; the second page of the CL-19 form has a ticked box next to the description of a Grade II injury:
Neck/upper back
musculoskeletal signs:
·        decreased ROM
·        point tenderness.
Dr. Grypma initially maintained on cross-examination that a Grade II injury classification requires both decreased range of motion, and point tenderness. However, he conceded that the Québec Task Force Grade II classification uses point tenderness as a clinical sign, distinguishing this injury from a Grade I injury in which there are no clinical signs. Attempting to defend his position that this was not a Grade II injury, Dr. Grypma then asserted that Ms. De Villiers’ injury could be viewed as a “Grade 1.5”. There is no evidence of such a classification being recognized. I was not impressed by this testimony.
[36]         Dr. Grypma contended that as patients waiting for hip replacements usually have chronic pain over two to three years prior to having surgery, and the vast majority of these patients eventually recover, there is every reason to believe that Ms. De Villiers will also recover from her chronic low back pain. I found this analogy facile and argumentative. Dr. Grypma did not claim any expertise in the field of chronic pain treatment.
[37]         Overall I found Dr. Grypma’s evaluation of Ms. De Villiers to be ill-considered and superficial, and I give no weight to his evidence.

Advocacy in the Guise of Opinion, bc injury law, Devilliers v. McMurchy, Mr. Justice Saunders

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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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