No Weight Given to “Simply Conclusory” Defence Medical Opinion

Adding to this site’s archived posts of judicial criticism of expert witness advocacy or otherwise unsatisforcy expert opinions, reasons for judgement were recently brought to my attention finding that ‘no weight‘ should be attached to an expert that provided a ‘simply conclusory‘ opinion.

In the recent case (Tzotzolis v. Wyman) the Plaintiff was involved in a 2016 rear-end collision.  Following the crash the Plaintiff suffered from persistent lower back pain.  Although the case involved a BC crash ICBC retained a physician based out of Ontario who occasionally flies to BC to provide an independent medical exam.  That physician opined that the persistent back pain the Plaintiff suffered from was not related to the crash which was merely coincidental.  In rejecting this opinion and finding it deserves ‘no weight’ Mr. Justice Saunders provided the following comments:

[30]         The defence medical expert was Dr. Joseph Wong, a specialist in physical medicine and rehabilitation. Dr. Wong is based in Toronto. He has lately, as of last November, begun doing independent medical examinations in British Columbia. He is in this province for about one week every month for that purpose. He sees five patients a day over five days. His appointments last an hour. That was the length of his assessment of Mr. Tzotzolis, when Dr. Wong examined him in April of this year.

[33]         Where Dr. Wong chiefly differs from the plaintiff’s experts is that he does not believe the plaintiff’s pain is as a result of the accident. Dr. Wong’s report states that the plaintiff’s arthritis is likely pre‑existing and therefore not related to the accident. The report did not explicitly state that the accident did not cause the arthritis to become painful, or in other words that it did not cause the previously asymptomatic arthritis to become symptomatic; that conclusion, however, was implied, and Dr. Wong confirmed in cross‑examination that this is his view. He regards the accident and the arthritis becoming symptomatic as merely coincidental. His report, however, did not explain why he holds this position. He volunteered in cross‑examination that there are “many possible reasons” why this could be so. Plaintiff’s counsel, sensibly, did not invite him to elaborate.

[34]         Dr. Wong had been explicitly asked by ICBC in their letter of instruction to opine in relation to any pre‑existing condition he found, specifically as to whether the plaintiff would have suffered symptoms complained of regardless of the accident. He was also asked whether the accident accelerated or aggravated the onset or development of symptoms, or whether it aggravated the severity of symptoms Mr. Tzotzolis would have suffered in any event. His report did not provide answers to those questions.

[35]         That the mechanical forces imparted to the spine in a motor vehicle collision may be sufficient to trigger pain in previously asymptomatic degenerative arthritis of the spine is not a novel proposition. There must have been hundreds of decisions in this court over the years based on this scenario. If Dr. Wong meant to contest the possibility or medical plausibility of such a physiological process, he ought to have said so clearly and explained his logic. If what he meant instead was that in Mr. Tzotzolis’ particular circumstances there are more probable explanations, he ought to have said what those explanations were. Instead, his report was simply conclusory.

[36]         Rule 11‑6(1)(f) requires that an expert witness’s written report must set out the expert’s reasons for his opinion. Dr. Wong’s report was not in compliance with that subrule.

[37]         In contrast, Dr. Badii’s report stated, at para. 40:

My opinion on causation is based on the close temporal relationship between the accident and the onset of symptoms as well as the medical plausibility of the above injuries occurring during the type of accident in which Mr. Tzotzolis was involved.

Dr. Faraday gave a similar opinion. Neither of the plaintiff’s doctors was challenged by defence counsel on cross‑examination as to their reasoning. Dr. Wong did not author a rebuttal report.

[38]         Without Dr. Wong having stated his reasons for his opinion, it is simply impossible to weigh his opinion against those of the plaintiff’s experts. I give Dr. Wong’s opinion no weight.

Advocacy in the Guise of Opinion, bc injury law, Mr. Justice Saunders, Tzotzolis v. Wyman

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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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