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"Nonsensical" Objection to Statistical Evidence Rejected

Written by admin on . Posted in ICBC Wage Loss.

Statistics have their place in trial.  When proving average earnings of certain occupations the shortcut of referencing statistical data can be of great value and save time and money.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing this.
In last week’s case (Smith v. Fremlin) the Plaintiff was injured in a 2009 collision.  She was a recent law school graduate at the time just entering her career in law.  It was found that, as a result of the injury, she likely could not compete in private practice and would have lifelong limitations in her working capacity.  The Plaintiff introduced statistical evidence of the present day value of a lifetime of earnings for legal professionals.  The Defendant objected to this arguing witnesses of fact instead should be called to address this.  In rejecting this “fundamentally flawed” objection Mr. Justice Groves provided the following reasons:
[43]         Counsel for the defendants took significant objection to the report of Robert Wickson.  At trial, I rejected their argument that the report should not be admitted as evidence.  The substance of that argument is worth considering in these Reasons. 
[44]         It was the position of the defendants that any report which attempts to provide evidence to the court as to average income of persons within certain employment designations is fundamentally flawed.  It was the position of the defendants that the court should require the plaintiff to produce evidence of persons, working as practicing lawyers, who could testify as to what they earn.  The suggestion was further made that these witnesses should be women practicing law in British Columbia. 
[45]         One must keep in mind that all parties appear to have agreed to this matter being litigated under the Fast Track model in three to four days.  It is nonsensical to require a party to prove a claim by calling a potentially large number of witnesses, in this case, female lawyers in British Columbia of the same age, to testify.  It is folly not only as to the time and cost, but also as to the possibility of finding this information in advance.  It would require people to willingly disclose their income.  Additionally, it is folly when one considers the number of persons that would have to be called to create any level of statistical reliability. 
[46]         What this Discovery Economic Consulting report shows is that for persons who fall within the NOC classification of ”Lawyers and Quebec Notaries”, the potential earning capacity is approximately $1.94 million over the course of their career.  Importantly, the persons that fall within this classification are a much larger body of persons then simply practicing lawyers.  Although numerous types of lawyers and notaries are included in this classification, it also includes judicial assistants, advisory counsel, articling students, advisors of law and corporate affairs, and a number of other job classifications which may not require law degrees, such as legal officers and legislative advisors. 
[47]         I accept that this report is evidence of lifetime capacity for someone with the career path that Ms. Smith was undertaking.  In fairness, however, the number should be increased as a number of persons falling within the classification are not lawyers and employed in occupations, likely to be earning less, such as articling students.  I find that working to age 69 is not unreasonable.  As such, I would find that a reasonable dollar figure for lifetime earnings for a lawyer is $2,000,000.

Concussion Lawsuits – Are the Floodgates About to Open in the MMA World?

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The below post is cross-posted from my Canadian MMA Law Blog; 
__________________________________________________________________________

This weekend another sports related concussion lawsuit has hit the media.  This time  its the NHL making headlines.
The family of late enforcer, Derek Boogaard, hasfiled a wrongful death claim against the NHLarguing the League is responsible for brain damage the feared fighter sustained in his years playing professional hockey.  He had at least 66 on ice fights in his professional career.
Such lawsuits are becoming more commonplace in the world of professional sports.  These lawsuits are often grounded in the theory that sports organizations allow athletes to compete while undermining or concealing the risk of injury.  So what does this have to do with MMA?  It is likely a foreshadowing of things to come.  More importantly, it is a good opportunity to get ahead of a potential problem for the betterment of the sport.
The NHL and NFL are mature leagues with a lengthy history.  There are generations of retired athletes with long term data to draw from comparing these athletes to retired members of the general population.  One pattern that is becoming clearer is that of Chronic Traumatic Encephalopathy and its relationship to long term involvement in contact sports.  Athletes who experience repetitive brain trauma over their careers have a greater chance of developing this degenerative disease.   The relationship of brain dysfunction and exposure to repeated sub-concussive trauma is also becoming better understood. As the long term health of more retired athletes is studied, a greater understanding of this pattern occurs.
While there is clearly homework to be done in terms of this link and MMA, the one thing the UFC and other MMA organizations can learn from these lawsuits is to get ahead of the curve.  There is nothing to gain by taking an ostrich approach to brain trauma.  Instead MMA leagues should take meaningful steps to acknowledge these risks head on and encourage their athletes to learn about the full known risks that come with participation.  As retired Canadian MMA fighter Nick Denis demonstrated, not all fighters agree to carry on with a career in MMA after learning of the risks.  Failing to facilitate athlete’s appreciation of CTE and other long term consequences not only undermines informed participation, it can also lead to the legal troubles that are now plaguing the NHL and NFL.
Dana White, president of the UFC, has, to his credit, done much for the growth of MMA and aiding in the creation of its regulatory framework.  However, in the process the plain speaking promoter has made some foolish representations along the lines of MMA being the ‘safest sport in the world’.  This hyperbole can be forgiven by the average fan who understands that Dana is speaking from a desire to assist the growth of the sport and refuting political resistance such as the well worn ‘human cockfighting’ soundbite.  Such reckless statements, however, can have an unintended impact in the legal context if a fighter who is diagnosed with CTE turns to legal action.
Organizations will be best served by not undermining these risks.  Concussive injury should not be downplayed as it was by the flippant attitude shown to Matt Mitrione in face of his voiced concussive concerns in season 10 of TUF.  While this may have made for better ratings, encouraging an attitude which undermines concussive injuries is not in the long term interests of athletes nor MMA organizations.  If this attitude is pervasive in the organization there could be unwanted legal repercussions down the road.  Stake holders should not wait for the legal floodgates to open before addressing this issue.

Defense Expert Witness Receives Judicial Drubbing

Written by admin on . Posted in ICBC Shoulder Injury Cases, ICBC Whiplash Cases. 1 Comment on Defense Expert Witness Receives Judicial Drubbing

It seems there has been a lot of judicial scrutiny as of late of expert witnesses crossing the line into client advocacy.   Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, providing the latest example of this.
In last week’s case (Thibeault v. MacGregor) the Plaintiff was injured in a 2010 collision.  It was a so-called ‘low velocity impact’ but the Court rejected this defence and found the Plaintiff did sustain a moderate whiplash injury.  Non-pecuniary damage were assessed at $35,000.  In the course of the lawsuit the Defendant arranged for an independent medical exam of the Plaintiff.  This physician provided opinion evidence which the Court largely rejected.  In doing so Mr. Justice Weatherill provided the following criticism:
[95]         Counsel provided detailed written submissions on the issue of the Vondette Report’s admissibility.  I agree generally with the submissions of plaintiff’s counsel.  Dr. Vondette’s report is prolix in the extreme.  Dr. Vondette’s review of the plaintiff’s background was beyond thorough and comprehensive – it reported the minutia of the plaintiff’s social, family, psychological and medical history.  He opines on matters that have no relevance to the plaintiff’s claim in this proceeding: He overreaches into the areas reserved for the trier of fact.  He makes remarks that go solely to the plaintiff’s credibility.  His report in many places is argument in the guise of opinion.  Much of the report purports to be opinion when what is written is not an opinion at all but rather a regurgitation of the plaintiff’s complaints. ..
97]         After hearing counsel’s submissions, I concluded that Dr. Vondette was probably an expert whose opinions, properly articulated, could be of benefit to the Court.  Although I found the vast majority of the Vondette Report to be inadmissible, I decided that it was in the interest of justice to grant leave allowing Dr. Vondette, with counsel’s assistance, to produce a summary of those portions of the Vondette Report that are properly admissible.
[98]         Dr. Vondette did so.  His summary (“Summary”) is two pages in length and captures succinctly and helpfully the opinions he was attempting to express in his report.  The Summary, together with counsel’s letter of instruction and appendices “A” and “E” from the Vondette Report were collectively marked as Exhibit 7.
[99]         Unfortunately, Dr. Vondette’s oral testimony was not as helpful as was the Summary.  He returned to the prolix method of communicating that he suffered from when writing his report.  He sought to justify this communication method on the basis that “I am a competent and thorough physician” and that any review of the plaintiff’s circumstances that was less than comprehensive and itemized is “rubbish”.
[100]     Dr. Vondette pontificated throughout his testimony regarding the virtues of his specialty and his experience within it.  In addition to the field of physiatry, he apparently views himself as having bountiful knowledge in other specialties in which he has no formal training, including psychiatry, psychology gynecology, physiotherapy, family medicine, social work and occupational therapy.  He testified that his expertise is such that he tells physiotherapists “exactly what I want done”…
[103]     Dr. Vondette was argumentative and condescending throughout his cross-examination.  Virtually all of his answers were lengthy monologues.  He was critical of Dr. MacKean’s March 5, 2012 report because it was only two pages in length.  He was critical of her December 5, 2012 report because, in forming her opinion, she reviewed and relied upon only her March 5, 2012 report and Dr. Salmaniw’s two July 2012 reports. 
[104]     Dr. Vondette refused to agree that Dr. Salmaniw, as the plaintiff’s family doctor for more than 20 years, knew more about the plaintiff and what was best medically for her than he did after a three hour consultation.  In Dr. Vondette’s words: “I think I can reasonably size up what’s going on here”.
[105]     Finally, Dr. Vondette described Mr. Harvie’s physiotherapy methods as “strange off-shore theories followed by a bunch of over-excited disciples”.  In his view, the plaintiff needed to be taken out of the hands of Mr. Harvie and sent to a physiotherapist who is more orthodox and who performs scientifically validated forms of treatment.
[106]     Needless to say, the approach to the role of an expert witness in the context of court proceedings that Dr. Vondette followed is unhelpful, counterproductive and is to be discouraged.  It is not within the purview of an expert witness to determine facts or issues of credibility and reliability: Brough v. Richmond, 2003 BCSC 512 at paras. 14 – 17.  Unfortunately, Dr. Vondette allowed his subjective views of the plaintiff formed from his review of her medical and personal history to overwhelm whatever impartiality he may initially have had.  I have been unable to take meaningful guidance from his opinions and testimony.  To the extent that his opinions conflict with those of Drs. Salmaniw, MacKean and Reeves, I accept the opinions of the latter experts and reject those of Dr. Vondette.

Non-Disclosed Medical Report Leads to Adverse Inference in Cervical Radiculopathy Injury Claim

Written by admin on . Posted in ICBC Spine Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, commenting on “the failure of the defence” to produce a medical report they agreed to exchange in the course of an injury lawsuit.
In this week’s case (Chekoy Sr. v. Hall) the Plaintiff was involved in a 2007 collision.  Fault was admitted by the Defendant   The Plaintiff suffered a cervical radiculopathy as a result of the crash and had non-pecuniary damages assessed at $75,000.  In the course of the lawsuit the Plaintiff agreed to attend an independent medical exam requested by the Defendant in exchange for a copy of the resulting report.  The report was never produced.  In reaching his assessment of the evidence and this development Mr. Justice Masuhara provided the following comments:
[67]         Though the plaintiff attended an independent medical examination requested by the defence.  The defence did not adduce any medical evidence challenging the plaintiff’s medical evidence.  Mr. Gertsoyg produced a letter which stated that his client would attend an independent medical exam requested by the defence in exchange for a copy of the resulting report.  Ms. Tonge wrote back agreeing to do so.  For some reason, a copy was not provided to Mr. Gertsoyg.  During the course of the trial, Ms. Tonge was requested by Mr. Gertsoyg to produce the report.  Ms. Tonge refused and when asked by Mr. Gertsoyg in court to provide the report she stated that she did not have with her.  She did not offer to get and provide it. ..
[85]         In any event, the medical opinions all support objectively the fact that Mr. Chekoy has symptoms from cervical radiculopathy.  As noted earlier the defence did not tender any medical evidence though it obtained an independent medical examination and report of the plaintiff.  The failure of defence counsel to produce the medical report which counsel had agreed to provide to plaintiff’s counsel, without an adequate explanation, allows for an adverse inference to be drawn in this regard.  The defence’s theory that the plaintiff’s neurologic problems relate to physiotherapy treatments, chiropractic treatments, or from the plaintiff lifting a tool box on the back of a pickup has not been established; I note Dr. Golin’s did not accept that theory.  While the defence raised the question of the delay in symptoms, I accept the medical evidence that there is considerable variability in symptom onset.
[86]         On balancing the totality of the evidence including the failure of the defence to produce its independent medical report, I find that the Accident is the cause of the plaintiff’s cervical radiculopathy and not from the natural progression of the plaintiff’s pre-existing degenerative disk disease, subsequent treatments, or other events.

$45,000 Non-Pecuniary Assessment For 4 Year Soft Tissue Injury With Good Prognosis

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 50 Comments on $45,000 Non-Pecuniary Assessment For 4 Year Soft Tissue Injury With Good Prognosis

Adding to this site’s archived soft tissue injury caselaw assessments, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic soft tissue injury with an ultimately good prognosis.
In the recent case (Chingcuangco v. Herback) the Plaintiff was involved in a 2008 collision for which she was not at fault.  She suffered soft tissue injuries to her neck and back which continued to pose problems at the time of trial.  Despite their long duration the prognosis for full symptom recovery was good with the Court finding they would resolve within a further 5 years.  In assessing non-pecuniary damages at $45,000 Mr. Justice Weatherill provided the following reasons:
[197]     The plaintiff felt some immediate pain in her chest and right toe after the accident.  She had no loss of consciousness.  X-rays taken at the hospital shortly after the accident were negative.  As the days and weeks progressed, she developed debilitating pain in her neck and lower back, with resulting headaches.  She had bruising on her chest and abdomen.  She was unable to go to work at CRA for two weeks.
[198]     The bruises and the pain she suffered in her chest and right toe pain resolved completely within six weeks.  Although she thought her lower back pain had resolved by the end of 2009, she has since experienced severe flare-ups several times since then.
[199]     The plaintiff has tried various modalities of treatment.  They have provided temporary but not permanent relief.  The plaintiff continues to experience persistent pain and muscle spasms.  She will continue to have episodic flare-ups of pain in her lower back and cervical spine with associated headaches.  I am satisfied that such episodes have been and will continue to be the result of the injuries she suffered during the September 15, 2008 accident…
[201]     I find that the plaintiff suffered a Grade II whiplash injury as a result of the September 15, 2008 accident.  She also suffered contusion injuries to her chest and lower abdomen, chest wall strain and a chipped tooth.  Over four years have passed since the accident and she still suffers from intermittent neck and lower back pain and tension headaches as a result of the accident.
[202]     I find that it is reasonable to expect the plaintiff will be fully recovered within five years.  In part, I make this finding on the basis that the plaintiff is an achiever.  Dr. Mergens gave evidence that she might still suffer some muscle tension headaches for an indefinite period.  He did say these symptoms may dissipate with time and conditioning.  However, there is no reasonable prospect of permanent impact upon her capabilities.
[203]     After considering all of the evidence, the submissions of counsel and the case authorities, I find that an appropriate award for non-pecuniary damages in this case is $45,000.

Defence Psychiatrist Rejected for Basing Opinion on "Facts That Are Wrong"

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

In my continued effort to highlight judicial scrutiny of expert witnesses, reason for judgement were released last week by the BC Supreme Court, Kamloops Registry, rejecting an expert psychiatric opinion.
In last week’s case (Moritz v. Schmitz) the Plaintiff was injured in a 2007 collision.  She was 17 years old at the tine and “was a healthy teenager“.  The collision caused chronic soft tissue injuries along with a worsening of pre-existing psychological difficulties.  The Court awarded $80,000 for the Plaintiff’s non-pecuniary damages.
In the course of trial the Defendant called a psychiatrist who provided an opinion that the collision was not the cause of the Plaintiff’s aggravated pscyhological difficulties.  In rejecting this opinion Madam Justice Gropper provided the following critical comments:
[70]         Dr. Solomons goes on to suggest that, in his opinion, it is “most likely that the course of her psychiatric difficulties after the accident was related to stressors unrelated to the accident”, referring to matters that occurred prior to the motor vehicle accident. He then concludes that the plaintiff would have experienced the same symptoms even if the accident had not occurred. Again, Dr. Solomons does not provide a foundation for his opinion that the problems Ms. Mortiz faced before the accident are of greater significance than those she faced because of the accident. He was aware that the plaintiff suffered from physical injuries but he does not turn his mind to whether those injuries may have affected her psychiatric functioning.
[71]         Dr. Solomons does not explain his emphasis on pre-accident events. This same observation in respect of Dr. Solomon’s emphasis on pre-accident events was made by Mr. Justice Willcock in Jokhadar v. Dehkhodaei, 2010 BCSC 1643 at para 135:
Further, there is no reason, in my view, to regard stressors other than the car accident as more compelling or predominant. Dr. Solomons, in reaching that conclusion, ignored clear evidence of the significance of the accident.
[72]         I also note that Dr. Solomons’ final paragraph under the “Opinion” section of his report is based on “facts” that are wrong. He says Ms. Moritz was “psychiatrically disabled before the accident and was not working at the time of the accident.” He fails to note that she was 17 years old and in grade 12 at the time of the accident. She was not psychiatrically disabled from working. He says that “[s]he had no psychiatric requirement for time off work as a result of the accident since she was already on long term psychiatric disability … .” Again, she was not off work because of her psychiatric disability before the accident; nor was she on long-term psychiatric disability. In all of the circumstances, I am unable to accept Dr. Solomons’ opinion.

Prior Consistent Statements Considered in Vicarious Liability Impaired Driving Case

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases. 49 Comments on Prior Consistent Statements Considered in Vicarious Liability Impaired Driving Case

Reasons for judgement were released this week by by BC Supreme Court, Chilliwack Registry, addressing the issue of implied or express owner consent following a motor vehicle collision involving an impaired driver.
In this week’s case  (Gibbs v. Carpenter) the Defendant Carpenter was driving a vehicle owned by the Defendant Kusch.  She denied giving him permission to drive the vehicle.  He was “impaired by alcohol” when he “crossed the centre line and collided head on” with the Plaintiff vehicle.
Mr. Justice Joyce had to decide whether there was consent for him to drive.  There was conflicting evidence on this point and the Court ultimately made the call that there was no express or implied consent letting the owner off the hook.  Prior to deciding this issue the Court grappled with whether a written statement the owner gave the police was admissible.
In the aftermath of the collision the owner provided the police with a verbal statement indicating that consent for the trip was not given or if it had been the owner expected someone else to drive.  This statement was admitted into evidence   The owner provided a more fullsome written statement to the police following this.  The owner attempted to get the written statement into evidence arguing it formed part of the original statement or in the alternative that it was needed to rebut an allegation of recent fabrication. Mr. Justice Joyce disagreed and excluded the statement. In doing so the following useful summary of the law was provided:
[61]         I am unable to agree that the written statement forms part of one continuous statement, given the intervening events. It is not as though the statement was given at the scene mere minutes after the first conversation. Ms. Kusch went home, slept, spoke to her father about what had happened and it was upon his suggestion that she prepared a written statement. Ms. Kusch had the opportunity to reflect and consider what information she would include in her statement. In my view, it cannot be considered a mere continuation of the earlier oral statement.
[62]         As for the submission that the written statement should be admitted to clarify the equivocal oral statement, the trial was the opportunity to testify whether the oral statement was made or not, whether it was accurate or not, whether Constable Wright’s version of what Ms. Kusch said was complete, or whether his recall and recording of the statement were incomplete. I, therefore, do not accede to Mr. Harris’ first ground.
[63]         I am also of the opinion that the statement is not admissible as a prior consistent statement rebutting an allegation of recent fabrication.
[64]         In R. v. Stirling, 2008 SCC 10 [Stirling], Mr. Justice Bastarache reviewed the principles applicable in determining when prior consistent statements can be led to rebut an allegation of recent fabrication and how such statements, if admitted, are to be used. The context in which the issue arose in Stirling is set out in paras. 1 – 2:..
[68]         Thus, the purpose of the prior consistent statement is to remove a potential motive to fabricate and a trial judge may consider the removal of this motive when assessing the witness’s credibility.
[69]         In the recent decision delivered from the Ontario Court of Appeal, R. v. Kailayapillai, 2013 ONCA 248 at para. 41, I note that Mr. Justice Doherty adopted the phrase “motive or reason” to fabricate and discussed the importance of the timing of the statement in relation to when the motive or reason arose:
[41]      … The value of the prior consistent statement does not rest exclusively in its consistency with the evidence given by the witness at trial. It is the consistency combined with the timing of that prior statement. As the statement was made before the alleged motive or reason to fabricate arose, the statement is capable of rebutting the suggestion made by the cross-examiner that the witness’s evidence is untrue because it was fabricated for the reason or motive advanced in cross-examination. The witness’s evidence is made more credible to the extent that the asserted motive or reason advanced for fabrication has been negated by the evidence of the prior consistent statement: see R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 5-7.
[Emphasis added.]
[70]         Once admitted, the trial judge may not use the prior consistent statement for the truth of its contents. At para. 11 of Stirling, Bastarache J. said:
[11]      Courts and scholars in this country have used a variety of language to describe the way prior consistent statements may impact on a witness’s credibility where they refute suggestion of an improper motive. …. What is clear from all of these sources is that credibility is necessarily impacted ? in a positive way ? where admission of prior consistent statements removes a motive for fabrication. Although it would clearly be flawed reasoning to conclude that removal of this motive leads to a conclusion that the witness is telling the truth, it is permissible for this factor to be taken into account as part of the larger assessment of credibility.
[71]         In the present case, any reason that Ms. Kusch may have to fabricate a story was clearly present at the time she prepared her type-written statement. She faced having to explain to her father, a police officer, how an inebriated young man with a learner’s permit came into possession of her car and came to be involved in a serious car accident. She may very well have appreciated that there might be insurance implications arising out of who was driving. She may also have been influenced by the advice of her father in forming her statement. The statement was not prepared prior to the existence of a reason to fabricate; it was formed afterward. In my view, it does not have any probative value and does not fall within the exception to the general rule that excludes prior self-serving statements. It is not admissible.

Facebook Strikes Again

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In yet another example of a personal injury claim being undermined by postings on social media, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating a Facebook posting undoing a claimed damage.
In this week’s case (Neyman v. Wouterse) the Plaintiff was injured in a 2007 collision.  She sued for damages and her claim was partially successful.  An aspect of her claim that was not accepted dealt with driving anxiety.
The Plaintiff claimed that one of the consequences stemming from the collision was “a driving phobia“.  The Court did not accept this finding that the Plaintiff was “an unreliable historian“.  In coming to this conclusion the Court referenced the Plaintiff’s own Facebook posting and provided the following reasons:
[126]     Ms. Neyman’s evidence that she continues to suffer from a driving phobia, albeit one that has improved, is also questionable. Before a Facebook posting that she made on January 9, 2009 was put to her, she gave the impression in her evidence that she generally suffered from anxiety after the Accident, but that it improved with time. In her Facebook posting, she wrote about driving her mother’s manual transmission BMW late at night and at high speed. The entry reads:
Angela Neyman is finally remembering how awesome it is to drive 120 clicks on a clear road in her car (Ang ?’s Speedy G).
[127]     I found that Ms. Neyman’s responses to questions during cross-examination about that entry reflected poorly on her credibility and indicated a mindset that continues to be heavily focused on the Accident as the cause of every problem or difficulty she has faced since. Once the Facebook entry was put to her, Ms. Neyman denied suffering any phobia to driving that involved driving very fast, late at night, and in the dark with a sore knee. I also found Ms. Neyman’s attitude towards defence counsel during the exchange to have been inappropriately condescending. I also found Ms. Neyman’s evidence to be at odds with her previous testimony that in 2011, two years after the Facebook posting, she was forced to purchase a vehicle with an automatic transmission because she found driving a car with a clutch aggravated her hip. That evidence is also inconsistent with her similar advice to Dr. van Rijn in 2010 that she found it difficult to drive a standard vehicle, “as using the clutch aggravates her back and hip pain.”
[128]     Many of the answers she gave in cross-examination about a number of her Facebook postings reflected a mindset to minimize physical and travel-related problems not related to the Accident, and to discount as overstated those Facebook postings that suggested she was, following the Accident, pursuing an over-burdensome schedule by working mostly full-time hours while attending school on a full-time basis.
[129]     I am, respectfully, unable to accept the submission made by her counsel that a number of Ms. Neyman’s postings on her Facebook that might reflect poorly on her credibility should be characterized as youthful boasting to her peers. Her comments on Facebook were made of her own volition. In my opinion, having observed Ms. Neyman in the witness box over the course of several days, I am satisfied that her Facebook comments accurately reflect her mindset when each posting was made.
[130]     In all, I found Ms. Neyman to be an unreliable historian in many respects. She is unduly focused on the Accident as the cause of all of her pain and difficulties with school and work. Accordingly, I find it difficult to place meaningful weight on much of her evidence concerning the nature and extent of her pain and suffering caused by the Accident and what happened to her on impact.

Court Turns to Wikipedia To Address Claimed Damages for Rolfing

Written by admin on . Posted in ICBC Spine Injury Cases, Uncategorized.


Reasons for judgement were released this week with the BC Supreme Court citing Wikipedia when assessing damages following a motor vehicle collision.
In this week’s case (Parker v. Davies) the Plaintiff was injured in a 2009 rear end collision.  Fault was admitted by the Defendant.  The Plaintiff sustained a disc protrusion in her back and was expected to have long term symptoms as a result of this.  The Court assessed non-pecuniary damages of $90,000.
In addition to this the Plaintiff claimed fairly substantial damages for future care costs including over $24,000 for rolfing.  Mr. Justice Meiklem rejected this claim finding there was no medical evidence to justify the expense.  Prior to doing so the Court took the interesting move of referencing Wikipedia and provided the following reasons:
[40]         I had never heard of Rolfing before this trial and there was no authoritative evidence presented about what Rolfing is, much less any medical evidence that it is medically necessary in Ms. Parker’s case. I note that Ms. Henry adopted Ms. Parker’s description of Rolfing as a form of deep tissue work. Ms. Parker credits it as the most beneficial treatment that she has undergone in relieving the pain that radiates to her leg. Ms. Henry suggested that consideration be given to funding the treatment based on her understanding that it helped Ms. Parker, but would defer to a physician as to the medical benefits.
[41]         My curiosity led me to Wikipedia.org, where the following description appears:
Rolfing is a therapy system created by the Rolf Institute of Structural Integration (also referred to as “RISI”), founded by Ida Pauline Rolf in 1971.The Institute states that Rolfing is a “holistic system of soft tissue manipulation and movement education that organize(s) the whole body in gravity”. Manipulation of the muscle fasciae is believed to yield therapeutic benefits, including that clients stand straighter, gain height and move better, through the correction of soft tissue fixations or dystonia. A review found that evidence for clinical effectiveness and hypothesized mechanisms of Rolfing is severely limited by small sample sizes and absence of control arms, and that further research is needed, though controlled trials found that a single Rolfing session significantly decreases standing pelvic tilt angle, and that Rolfing caused a lasting decrease in state anxiety when compared to the control group. Only practitioners certified by RISI can use the title “Rolfer,” or practice “Rolfing,” due to service mark ownership. The Guild for Structural Integration is the other certifying body, whose graduates use the title “Practitioners of the Rolf Method of Structural Integration.”
[42]         In researching previous decisions of this court, I found two cases where Rolfing treatments were funded as part of special damages awarded, without medical evidence of medical necessity: Price v. Abdul, unreported, Vancouver Registry No B922911, BCSC, January 12, 1994; Schubert v. Knorr, 2008 BCSC 939, and one case, Cryderman v. Giesbrecht and Giesbrecht, 2006 BCSC 798, where the court acknowledged Rolfing costs as part of future care costs on the basis that, although not prescribed by her doctors, the plaintiff said the treatment gave her relief and the court found that the amount ($140 annually out of total annual care costs of $1,060) did not seem excessive.
[43]         The plaintiff in Cryderman sought a total future care costs award of $10,000, but was awarded $4,000, so the amount of the award notionally attributable to future Rolfing treatments would be approximately $550. Of course, assessing future care costs is not a precise accounting exercise, and perhaps the court felt that the very modest cost claimed obviated the need for evidence of medical necessity in that case. However, by comparison, Ms. Parker’s claim is for an award that would include $24,934 as the present value of annual Rolfing costs in the amount of $1,020 for the rest of her life expectancy. In my view, this is not a case where the court should deviate from the established principle that the appropriate award for the cost of future care is an objective one based on medical evidence. Accordingly, I will not consider potential future Rolfing costs in my assessment.
While it is easy to understand the desire to inform oneself by referencing on-line material, the same privilege clearly does not extend to a Jury as evidenced by this 2009 development where the BC Supreme Court discharged a juror for satiating his curiosity by referencing Wikipedia in the course of a trial.

ICBC Expert Witness Rejected for "Facile and Argumentative" Testimony

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases.

Adding to this ever growing database of case comments criticizing expert witnesses for advocacy, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, rejecting the evidence of an orthopaedic surgeon hired by ICBC and providing critical comments about his courtroom testimony.
In this week’s case (Devilliers v. McMurchy) the Plaintiff was involved in a 2008 collision.  She sustained “a significant back injury leading to significant pain that has become chronic and likely permanent“.  The Plaintiff was awarded non-pecuniary damages of $75,000.  In the course of trial the Defendant called an orthopaedic surgeon who minimized the connection between the plaintiff’s symptoms and the collision.  In rejecting this opinion Mr. Justice Saunders provided the following critical comments:
[34]         I am not persuaded by the alternative theories Dr. Grypma put forward. In attributing Ms. De Villiers’ continuing symptoms in part to deconditioning, Dr. Grypma completely overlooked Ms. De Villiers’ ongoing exercise routine, which has led to a 90-pound weight loss. He also gave no explanation as to how the relatively mild degenerative changes seen in the MRI study could account for Ms. De Villiers’ chronic pain and its resistance to the various treatments she has undertaken, without the accident having been a critical factor in the onset of her complaints. To accept his changed opinion, I would have to find that the emergence of symptoms of back pain in proximity to the accident was mere coincidence. I am not prepared to make that finding.
[35]         Furthermore, Dr. Grypma’s interpretation of Dr. Schuurman’s CL-19 report as only demonstrating a Grade I soft tissue injury overlooked the fact that Dr. Schuurman clearly found it to be a Grade II injury; the second page of the CL-19 form has a ticked box next to the description of a Grade II injury:
Neck/upper back
musculoskeletal signs:
·        decreased ROM
·        point tenderness.
Dr. Grypma initially maintained on cross-examination that a Grade II injury classification requires both decreased range of motion, and point tenderness. However, he conceded that the Québec Task Force Grade II classification uses point tenderness as a clinical sign, distinguishing this injury from a Grade I injury in which there are no clinical signs. Attempting to defend his position that this was not a Grade II injury, Dr. Grypma then asserted that Ms. De Villiers’ injury could be viewed as a “Grade 1.5”. There is no evidence of such a classification being recognized. I was not impressed by this testimony.
[36]         Dr. Grypma contended that as patients waiting for hip replacements usually have chronic pain over two to three years prior to having surgery, and the vast majority of these patients eventually recover, there is every reason to believe that Ms. De Villiers will also recover from her chronic low back pain. I found this analogy facile and argumentative. Dr. Grypma did not claim any expertise in the field of chronic pain treatment.
[37]         Overall I found Dr. Grypma’s evaluation of Ms. De Villiers to be ill-considered and superficial, and I give no weight to his evidence.