ICBC Psychiatric Expert Rejected As Not “Useful or Reliable”

Adding to this site’s archived case summaries rejecting expert evidence for improper bias or advocacy reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, finding an expert opinion by an ICBC expert deserved “limited, if any weight” for lacking usefulness or reliability.

In today’s case (Millar v. Wasden) the Plaintiff  was involved in a 2013 collision.  Fault was admitted by the Defendant.  The crash caused longlasting and disabling physical and psychiatric injuries.  In the course of the lawsuit ICBC retained a psychiatrist who provided the court with opinion evidence minimizing the connection of the collision to the plaintiff’s injuries.  In rejecting this evidence Mr. Justice Voith provided the following criticism:

[71]         Having said this, the concerns I have with the evidence of Dr. Solomons are sufficiently significant that I have given his evidence limited, if any, weight. This is so for various reasons. What follows is illustrative and not exhaustive of those concerns.

[72]         In his first report, Dr. Solomons, under the heading “Facts and Assumptions”, provides a history of sorts. In that history, he states:

7. Mr. Millar followed up with his doctor, Dr. O’Brien, who’d noted his complaints of low back, neck and shoulder pain as well as neurocognitive symptoms of dizziness, being in a fog, forgetfulness, balance problems, headaches, memory and concentration difficulties and waking during the night. By early July his back pain was much improved, and he had ongoing cognitive complaints of memory difficulties.

8. Dr. O’Brien started Mr. Millar on treatment with the antidepressant citalopram in November 2013 without noting the reasons for his prescription. Mr. Millar did not notice a difference from the medication. Dr. O’Brien noted in December 2013 that Mr. Millar was content and happy and that his mood was good, and he noted in January 2014 that he felt the citalopram helped his mood and lessen his anxiety.

9. Dr. O’Brien noted in his last entry in May 2014 that Mr. Millar had no mood disturbance. He had no headaches. He was sleeping well. His memory and concentration were normal.

[73]         The reality is that Mr. Millar saw Dr. O’Brien on a near monthly basis from July 2013 to May 2014. During that year, he complained to Dr. O’Brien about his problems with concentration and memory on each occasion. Dr. Solomons said that he had omitted these references in his chronology because, having noted that Mr. Millar complained about his memory on one occasion, there was no need to do so again. Be that as it may, the history Dr. Solomons provided, objectively viewed, is misleading. It suggests a fleeting difficulty with memory and concentration rather than a significant and enduring problem that caused Dr. O’Brien to send the Plaintiff to a concussion clinic and to get CT and MRI scans, all of which are noted in Dr. O’Brien’s clinical records.

[74]         Furthermore, though there is a single reference in Dr. O’Brien’s notes in May 2014 to Mr. Millar’s memory and concentration being normal, this single notation was aberrant. The fact is that after May 2014, Mr. Millar continued to consistently complain about his memory and concentration. Dr. Solomons was not provided with these further notes but he apparently made no inquiry about Mr. Millar’s status and progress after May 2014. Dr. Prout’s report, conversely, does refer to such further notes and he observes Mr. Millar’s ongoing difficulties.

[75]         Next, Dr. Solomons’ opinions are, on a consistent basis, at odds with significant bodies of medical evidence on important issues. He concludes, for example, that Mr. Millar suffered no psychiatric difficulties in the Accident. I have earlier reviewed the relevant expert and lay evidence that relates to this issue. I observe, in particular, that Dr. Prout, an expert retained by the Defendant, though not a psychiatrist, concluded that Mr. Millar’s ongoing difficulties were, in large part, on account of his depression and anxiety.

[76]         Similarly, though Dr. Solomons expresses the view that there is no need for the Plaintiff to receive counselling or psychological therapy the Defendant agrees that a part of Mr. Millar’s cost of future care should be on account of counselling. Still further the Defendant argues that Mr. Millar failed to mitigate his losses by, inter alia, failing to obtain or attend psychological counselling.

[77]         In a similar vein, Dr. Solomons, in his evidence, refused for some time to accept that some segment of the population who suffer a mild traumatic brain injury do not recover from that injury. This is inconsistent with, for example, the evidence of Drs. Prout and Cameron, both of who are neurologists. Ultimately, Dr. Solomons yielded on this issue.

[78]         Next, Dr. Solomons questioned aspects of the reports of each of Drs. Bishop, Krassioukov, and Levin. There is a certain hubris or risk associated with a psychiatrist opining on the work of a neuropsychologist and a physiatrist respectively. Certainly the Defendant did not choose to retain experts with these sub-specialties to address the work of Drs. Bishop and Krassioukov. Furthermore, the tone of Dr. Solomons’ written comments is unnecessarily strong in that it overtly questions the competence of Drs. Bishop and Krassioukov. I would observe, for example, that Dr. Krassioukov is an exceptionally accomplished individual with an international reputation. I had considerable confidence in his evidence.

[79]         Though I do not consider that I need to deal with all of the details of Dr. Solomons’ opinions in relation to the work of others, a few examples are useful. Dr. Solomons raised various issues that he said others, including Drs. Krassioukov and Levin, had failed to raise. This included, for example, Mr. Millar’s blood pressure, his blood sugar and his cholesterol. At trial the evidence suggested that none of these matters were pertinent to Mr. Millar’s ongoing difficulties. Furthermore, there is no evidence that Dr. Solomons sought to obtain any such information for the preparation of his first report.

[80]         Similarly, Dr. Solomons was critical of Drs. Krassioukov and Levin for not addressing Mr. Millar’s history of drinking and smoking in their assessment of his clinical presentation. The reality is that Dr. Solomons, in his first report, noted Mr. Millar’s history with smoking and drinking, including since the Accident, but he ascribed no significance to these matters and they formed no part of the opinions he expressed.

[81]         Ultimately, for these and other reasons, I do not find Dr. Solomons’ evidence useful or reliable.