Defence Expert's Evidence Rejected in Fibromyalgia Trial Based on "Advocacy"
As previously discussed, expert witnesses have a duty to be objective when giving their evidence and opinions in a BC Supreme Court trial. Rule 11-2 specifically sets out that “In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party.”
If experts fail to abide by this requirement they risk having their opinions rejected and further being criticized by the Court. Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, highlighting such a result.
In last week’s case (Marchand v. Pederson) the Plaintiff was involved in a 2007 motor vehicle collision. It was a rear-end collision and fault was admitted. The trial focused on the value of the Plaintiff’s claim.
The Court heard competing expert witnesses with the Plaintiff’s physiatrist (Dr. Apel) providing evidence that the collision caused various injuries including fibromyalgia.
This opinion was contradicted by a physiatrist retained by the Defendant (Dr. Nowak) who provided an opinion that the collision played a lesser role in the Plaintiff’s symptoms.
Dr. Nowak’s opinion was largely rejected with the court placing little weight on it. Non-pecuniary damages of $65,000 were awarded with the Court providing the following reasons in assessing damages and criticizing the defence expert:
 I find Dr. Nowak’s evidence to be problematic. He initially refuses to answer a question based on assumptions. It is clear that he is wrong in his reading of the intake report of Dr. Kinakin where he assumed that the pain was remaining constant. He is not accurate in the date of the last chiropractic treatment. I am of the view that Dr. Nowak is more of an advocate than an expert and I give very little weight to his evidence. I prefer the evidence of Dr. Apel when it comes to the diagnosis of fibromyalgia and the other conclusions reached by Dr. Apel. I am satisfied that the plaintiff may have improved somewhat from her last visit with Dr. Apel but I am satisfied that she continues to suffer a long term disability in respect to the fibromyalgia in the lower and upper back. I accept Ms. Phillips’ functional capacity evaluation and the limitations that the plaintiff has in respect to job opportunities because of her physical restrictions. I am also satisfied that the report of Dr. Wallace is fair and balanced and should be given a great deal of weight. I accept the plaintiff’s evidence that she stopped seeing her chiropractor, Dr. Kinakin, because she no longer had pain, but the chiropractor asked her to continue to see him because he was of the view that she had subluxation, which is poor posture so he was giving her treatment for that. She confirmed that she did not have any pain when she stopped seeing Dr. Kinakin. I accept her evidence….
 The function of non-pecuniary damages is to compensate the plaintiff for pain, suffering and loss of enjoyment of life and loss of amenities. Taking into account the relatively young age of the plaintiff (she is now 24 years old), the chronic nature of her injuries, the severity and duration of her pain, her disabilities, her emotional suffering and loss of her social and marital life, I am of the view that a proper award would be in the amount of $65,000.