‘Inappropriately Dismissive” and “Close-Minded” Defense Doctor Opinion Judicially Criticized

Adding to this site’s archived posts of judicial criticism of expert witness advocacy, reasons for judgment were published today finding a defence doctor’s opinion to be “of little value” in an injury claim.

In today’s case (Lambert v. Tiwana) the plaintiff was involved in two collisions and claimed damages.  The Defendants admitted fault in both claims.  The Plaintiff suffered a myofascial shoulder injury with persistent symptoms.  In the course of the lawsuit the Defendants had the Plaintiff examined by an orthopaedic surgeon who provided an opinion minimizing the plaintiff’s injuries.  In finding the ‘close-minded‘ and ‘inappropriately dismissive‘ opinion of little value Madam Justice Adair provided the following reasons:

[142]     I accept that Dr. Sovio found no orthopaedic injury.  However, in my view, since Ms. Bergen does not claim she suffered an orthopaedic injury, Dr. Sovio’s opinion is of little value.  His commentary when asked to review additional documents appeared to me to be inappropriately dismissive of Ms. Bergen’s pain symptoms and close-minded against the possibility that the absence of any “structural abnormality” did not tell the whole story in Ms. Bergen’s case.  I am not surprised that nothing changed Dr. Sovio’s opinion.  In my view, his perspective and opinion always had a narrow focus, consistent with his area of expertise.

[143]     In contrast, Dr. Craig, as a physiatrist, provides a more complete medical picture, including a reasonable medical explanation for Ms. Bergen’s ongoing pain symptoms in her right neck and shoulder, and I therefore prefer Dr. Craig’s opinion evidence, including his evidence concerning the nature of Ms. Bergen’s pain symptoms, over that of Dr. Sovio.  In Dr. Craig’s opinion, Ms. Bergen’s pain is primarily myofascial; in other words, it is pain originating from the muscles.  The diagnosis of myofascial pain is consistent with the objective findings made by Dr. Craig each time that he assessed Ms. Bergen, beginning in October 31, 2013, and with his diagnosis of moderate soft tissue injuries caused by the Accidents.  The appropriate inference to be drawn is that, but for the injuries Ms. Bergen sustained in the Accidents, specifically the March Accident, she would be free of her current symptoms.   

[144]     In my opinion, Ms. Bergen has satisfied her burden to prove that the injuries she sustained in the March Accident are the cause of her current symptoms.

Advocacy in the Guise of Opinion, bc injury law, Lambert v. Tiwana, Madam Justice Adair, myofascial shoulder injury

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer