“Little Weight” Given to ICBC Expert Witness With “Lack of an Open Mind”

Adding to this site’s archives of expert witnesses being judicially criticized for advocacy, reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, expressing reservations about the reliability of an ICBC retained expert who “became somewhat combative during cross-examination” downplayed the Plaintiff’s subjective reports of pain and showed a “lack of an open mind“.

In today’s case (Luck v. Shack) the plaintiff was injured in a 2014 collision that the Defendant accepted fault for.  The crash resulted in chronic soft tissue injuries and myofascial pain syndrome.  In the course of the lawsuit the Defendant retained an orthopaedic surgeon who provided an opinion minimizing the Plaintiff’s injuries and their relationship to the crash.  In concluding that “little weight” should be given to this doctor’s opinion Madam Justice MacDonald provided the following comments:

[100]     Dr. Sovio became somewhat combative during cross-examination. When asked if he knew how long he spent assessing Ms. Luck, he testified that when the plaintiff notes how long an assessment takes, the assessment becomes a farce, it becomes a performance rather than an examination. He testified that some patients come in very hostile. When questioned, he agreed that Ms. Luck was not hostile.

[101]     Dr. Sovio tended to downplay Ms. Luck’s subjective reports of pain.  For example, he used the words “ache” on page one of his report to describe what Ms. Luck had reported to him as “pain” during her assessment, as was set out in his notes from the date of the assessment. This contrasts with his treatment of the clinical record from Dr. Childs dated May 26, 2014 (pre‑accident). This record refers to “soreness, achiness and discomfort” in Ms. Luck’s paraspinal muscles. In his report, Dr. Sovio records this as “pain”. As he stated: “May 26, 2014 six months prior to the motor vehicle accident the patient was seen complaining of low back pain for three weeks. The pain was in the paraspinal muscles.” Dr. Sovio refused to acknowledge that there might be a difference between the definitions of pain and ache.

[102]     Dr. Sovio appeared unwilling to accept that Ms. Luck’s pain was genuine after the accident because he observed no objective findings on her examination to explain her pain. Dr. Sovio’s lack of an open mind as well as some of his comments undermined my confidence that he was testifying in a manner consistent with the impartiality the court expects from an expert witness. I give little weight to Dr. Sovio’s evidence due to these concerns.

Advocacy in the Guise of Opinion, Luck v. Shack, Madam Justice MacDonald

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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.

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