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$95,000 Non-Pecuniary Assessment For Chronic L4/5 Disc Herniation With Liklihood of Surgery

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

Adding to this site’s archived cases addressing non-pecuniary damages for spine injury cases, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a low back disc injury.
In this week’s case (Muhammedi v. Ogloff) the Plaintiff was involved in a 2009 rear-end collision.  Liability was admitted.  The Plaintiff suffered various soft tissue injuries and also an L4/5 lateral disc herniation.

This injury remained symptomatic at the time of trial and there was a greater than 50% chance that the injury would eventually require surgical intervention.  In assessing non-pecuniary damages at $95,000 the Court provided the following reasons:
[88]         Dr. Kokan was of the opinion that, from the accident, she had right side L4/5 far lateral disc herniation and persistent cervical myofascial pain.  He concluded:  “The motor vehicle [accident] as described, in my opinion, is most responsible for the onset of symptoms.”  While this aspect of his report was not clarified, it was clear from his testimony that the cause of her injuries was the car accident.
[89]         He felt her prognosis to be uncertain, and stated as follows:
Generally, I expect at least the current level of symptoms.  Far lateral disc herniations are typically more problematic with respect to symptoms.  Usually they can produce significant nerve root compromise given that they are located lateral to the foramen and pedicles, thereby there is less room for the exiting nerve root, thereby physical compression and symptoms are common.
I would expect usually that Mrs. Muhammedi would have at least the current level of symptoms in her back and that she would experience aggravations brought on in proportion to future activities.  Heavier activities would go on to produce potentially more troubling symptoms.
In the event that she should have ongoing and disabling neurological symptoms, she would probably have to consider surgical treatment.  The orthopaedic literature varies with respect to the need for surgery.  The possibility that she could require surgical treatment in the future is probably greater than 50%.  I say this because of her relatively young age and the associated presence of this type of disc protrusion…
[117]     The physicians all agree, and there is no issue in this regard, that the plaintiff sustained a far lateral disc protrusion.  All similarly agreed that the cause of the disc protrusion was the accident….
[157]     I find that it is clear from the expert reports tendered and the plaintiff’s evidence that she continues to sustain ongoing problems from this accident.  I find that this brings this case beyond the nature of the type of injuries in the cases cited by the defendants. It is more severe, more akin to the plaintiffs’ injuries in the cases cited by the plaintiff.
[158]     In all the circumstances, I award Ms. Muhammedi $95,000 for her non-pecuniary damages.  This recognizes the ongoing difficulties that she has and the possibility, which was deemed by the physicians, indeed by Dr. Kokan to be greater than 50%, that the plaintiff will require surgery at some time in the future.

Defendant Seeks To Exclude Plantiff From His Own Trial

Written by admin on . Posted in Civil Procedure. 107 Comments on Defendant Seeks To Exclude Plantiff From His Own Trial

Short but interesting reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, rejecting a defence application to remove a plaintiff involved in a personal injury trial from the court room while an expert witness testified.
In today’s case (Danielsen v Johnson) the Plaintiff’s cross-examination was being interrupted to accommodate an expert witness who was scheduled to testify.  The Defendant argued the Plaintiff should be excluded from the courtroom.  Mr. Justice Silverman disagreed and finding the Plaintiff could watch the expert testify and at best this may effect weight of the Plaintiff’s testimony.  The Court provided the following reasons:
[2]             There is case law that deals with the question of when parties to the proceedings should be excluded, and the leading case seems to be a 1951 case from our court of appeal, Sisson v. Olson, [1951] 1 W.W.R. (N.S.) 507, where the court says this at para. 6 of the judgment of Judge O’Halloran:
But in my judgment, a party to an action (if not dismissed therefrom) cannot escape remaining a party while the action is in progress.  It would be plainly unreasonable to attempt, not to say impossible to accomplish, to deprive him of that status at any stage of the proceedings in the action.  It must follow, in my judgment, that appellants have as much right to attend each other’s discovery examination as they have to remain in court and listen to each other’s testimony at the trial itself.
[3]             And at para. 7:
Acceptance of this conclusion does not deny jurisdiction in the court at the trial or in the presiding judicial official at any stage of the proceedings to order the physical exclusion of a party, should a violation of an essential of justice occur or be threatened, if exclusion is not directed.  What may constitute such a violation depends on the situation in each case appraised in its own atmosphere, see Bird v. Vieth (1899) 7 B.C.R. 31. 
[4]             The defence here argues that we have the situation where there is a threatened violation of an essential of justice.  What makes the case at bar different from any of the other cases which I have been referred to is three-fold:  one, this is a trial, while the precedents with which I was provided (including Sisson) dealt with an examination for discovery; second, the plaintiff is in the midst of cross-examination; and third, defence counsel has agreed to accommodate plaintiff’s counsel and, more importantly, a medical witness, by standing down the cross-examination.  If he had not agreed to that it could be that the application would be on the other foot and there would be an application to stand down the witness.
[5]             Those are important considerations, I agree, but in my view they are not enough to remove the heavy onus which is on the applicant to have the plaintiff excluded, and I rely on the principle as set out in Sissonthat parties get to be in the courtroom except in situations where an essential of justice is threatened.
[6]             Consequently, the application is dismissed.  The plaintiff may remain in the courtroom.
[7]             I would add that it remains open for the defendant to argue that the plaintiff’s evidence has in some way been affected by his presence in the courtroom, in a tangible way, while other evidence has been heard, and that this should be taken into account when assessing his evidence or aspects of it.

Consolidation of Trials Not Appropriate With Multiple Quantum of Damage Assessments

Written by admin on . Posted in BCSC Civil Rule 22, Uncategorized.

Although the BC Supreme Court has discretion to consolidate different claims for trial in cases where competing claims are “so interwoven as to make separate trials at different times before different judges undesirable” this is a discretion rarely exercised when there are separate plaintiffs with distinct injury claims that require individual quantification.  This reality was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (MacMillan v. Shannon) 4 occupants of a vehicle were involved in a collision with another vehicle   All sued for damages in separate claims.  Liability and damages were disputed in all claims.  ICBC brought an application seeking to have all trials heard together.  This application was dismissed with the key factor in derailing the application being the individual quantum claims being advanced.  In addressing this point Master Caldwell provided the following reasons:
[8]             Finally, other than on the issue of liability, no one is arguing that there will be a significant or any saving on the presentation of expert evidence. Each of the plaintiffs has a different family doctor. Two of the plaintiffs now live in Quebec so if there is any further expert evidence it is unlikely to overlap and may have to be provided by way of teleconferencing to minimize expense. Again, it is clear that there are ways of reducing complexity, duplication and inconvenience; it will be up to counsel to determine whether that happens or not.
[9]             In short, I am of the view that none of the second arm of tests arising in the Merritt case (supra) or the subsequent case of Bhinder v. 470248 B.C. Ltd., 2007 BCSC 805 is met in the present cases. The application for consolidation and related relief is dismissed as is the application for removal of any or all of the actions from Rule 15-1 fast track.

Is An Expert Report Admissible If Your Expert Dies Before Trial?

Written by admin on . Posted in BCSC Civil Rule 11. 118 Comments on Is An Expert Report Admissible If Your Expert Dies Before Trial?

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with this issue.  In short the Court held that certain factual observations contained in the report were admissible as they met the ‘necessary and reliable‘ exceptions to the hearsay rule.  The opinion evidence, however, was excluded.
In today’s case (Andrews v. Mainster) the Plaintiff had cognitive limitations and these were tested by a neurupsychologiest one year following the collision.  The expert died before trial.  In admitting the factual portions of the report but excluding the opinion evidence Mr. Justice Pearlman provided the following reasons:
[25]         I return now to Dr. Kay’s report.  Dr. Kay’s report provides the only evidence of a comprehensive neuropsychological evaluation of the plaintiff’s cognitive functioning one year post accident.  The necessity requirement is met with respect to those portions of Dr. Kay’s report that deal with his testing and evaluation of the plaintiff’s level of cognitive functioning.  I also find that those parts of Dr. Kay’s report that record the history he took from Ms. Andrews, discuss the tests he administered and set out his opinions on the results of his testing of the plaintiff’s cognitive functioning meet the threshold of reliability required for their admission into evidence.  Dr. Kay was a neuropsychologist trained and experienced in the use of the standardized tests he administered to the plaintiff.  Those tests provide a largely objective measure of the plaintiff’s cognitive functioning.  These factors, combined with Dr. Kay’s certification of the duties he owed to the court as an expert provide sufficient circumstantial guarantees of the trustworthiness of this evidence to satisfy threshold reliability.
[26]         Different considerations apply respecting Dr. Kay’s opinion or diagnosis of post-traumatic stress disorder, his prognosis, and his opinion on the motor vehicle accident as a cause of the plaintiff’s emotional and psychological disorders.  Those opinions have a significant subjective component.  They are not predicated upon the objective results of his testing of the plaintiff’s cognitive capacity.  The nature, extent and sources of the plaintiff’s psychological difficulties both before and after the motor vehicle accident are all in issue in this litigation.  There is also a live issue about whether the plaintiff fully disclosed relevant information concerning her psychological condition and the various stressors that affected her from time to time to the counsellors, psychologists and psychiatrists who have treated or examined her.
[27]         Defence counsel requested production of Dr. Kay’s file, including his interview notes, in order to determine whether it might shed any additional light on the plaintiff’s complex psychological history.  The file has not been produced and apparently is not available.  Dr. Kay’s report also refers to a diary kept by the plaintiff following the motor vehicle accident, which has not been produced, and to the plaintiff having seen Ms. Tracy Good for counselling for family and relationship issues for 11 years.  Ms. Good informed counsel that she has shredded all of her records.  If true, that effectively precludes exploration of a potentially valuable source of information concerning the causes of the plaintiff’s emotional and psychological disorders before and after the motor vehicle accident. 
[28]         In light of the subjective nature of the evidence concerning the causes and nature of the plaintiff’s emotional and psychological disorders, and the gaps in the documentary record that I have discussed briefly, I am not satisfied that Dr. Kay’s professional training as a psychologist and the certifications contained in his report provide an adequate guarantee of the trustworthiness of his opinions on these matters to meet the threshold of reliability for their admission into evidence.  In the circumstances of this case, there is no adequate substitute for cross-examination of the expert.
[29]         Further, the test of necessity is not met for Dr. Kay’s diagnosis of and prognosis for the plaintiff’s emotional and psychological disorders.  Relevant direct evidence is available from another source.  The plaintiff has a comprehensive opinion from Dr. O’Shaughnessy on the nature and causes of the plaintiff’s disorders, their relationship to the motor vehicle accident and their treatment.
[30]         Accordingly, I conclude that those portions of Dr. Kay’s report beginning at page 20 under the heading “Psychological Explanations” and continuing with the prognosis, opinion and recommendations at pages 21 through 23 do not satisfy the tests of necessity and reliability and are therefore inadmissible.  The balance of Dr. Kay’s report, with those redactions, will be admitted into evidence.

BC Court of Appeal Discusses Two Routes of Challenging Jury Notices

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 22, Jury Trials. 54 Comments on BC Court of Appeal Discusses Two Routes of Challenging Jury Notices

Last year I discussed the fact that the BC Supreme Court can deal with Jury Strike applications both under Rule 12-6(5) and also as part of the trial management process.  Reasons for judgement were released last week by the BC Court of Appeal (Wallman v. Gill) addressing this reality but also providing comments on the limits of when the trial management process is an appropriate forum for such an application.   The Court provided the following feedback:
23]         By analogy, although the application to strike the jury in this case was heard by the judge who had been appointed to manage the action, he did not hear it in the course of a trial management conference under R. 12-2(9), but in regular chambers under R. 12-6(5). Indeed, he could not have heard it at a case management conference since it is evident the parties filed affidavits on the application, and this would not have been permitted under R. 12-2(11)(a). Thus, the order striking the jury is not a limited appeal order.
[24]         I would be sympathetic to the plaintiff’s argument that the Legislature did not intend to create a “two-tier” system for appealing orders directing the mode of trial if I were satisfied that was the practical effect of this ruling. However, I am not convinced that this is the case. This argument fails to recognize the unique role of the case management conference. It is held late in the proceeding, when the trial is sufficiently imminent that the parties have been able to prepare a comprehensive trial brief, and meet in person with the judge to make informed decisions about how the trial will proceed. In this limited context, R. 12-2(9)(b) permits a trial management judge to decide whether the trial should be heard with or without a jury, either on application by one of the parties or on his or her own initiative, and without affidavit evidence. I venture the view that this power will be exercised rarely. If the parties have been unable to agree on the mode of trial, it seems most unlikely they would leave this to be determined late in the day at a case management conference, without the benefit of affidavit evidence. It is reasonable to assume that, instead, there will have been an earlier application under R. 12-6(5) to determine this issue. Further, it seems unlikely a trial management judge would then consider revisiting an earlier order dealing with mode of trial or, if no earlier application had been brought, alter the mode of trial in a summary manner late in the day.
 

Don't Get in a Fistfight at your Son's Baseball Game

Written by admin on . Posted in Uncategorized. 58 Comments on Don't Get in a Fistfight at your Son's Baseball Game


In case there aren’t enough reasons to avoid a fistfight at your kid’s sporting events, here’s one more; being on the wrong end of a subsequent lawsuit in the BC Supreme Court will expose you to loser pays costs consequences.
The BC Supreme Court, New Westminster Registry, released reasons for judgement today with such a result.  In today’s case (Charland v. Cloverdale Minor Baseball Association and Wheeler) the Plaintiff’s son was playing in a Pee Wee baseball game.  The Defendant’s son was the scheduled umpire who arrived late.  He was told to go home the by Plaintiff.  He went home upset and his father came to the baseball game to discuss what happened with the Plaintiff.  After the two fathers exchanged some colourful words the Defendant “walked away 8 to 10 feet” when the Plaintiff “stood up from his chair and moved forward quickly” with “the intention to fight“.  The Defendant hit the Plaintiff in the head and then grappled for a while after that.  The Plaintiff was injured in the incident and sued for damages.
Madam Justice Watchuk dismissed the lawsuit finding it was a consensual fight.  The Court provided the following reasons:
[88]         Consent is a defence to the torts of assault and battery.  If Mr. Wheeler alleges and proves that the parties agreed to the physical contact in question, then Mr. Charland cannot complain of injuries suffered.  The onus of establishing consent is on Mr. Wheeler:
Although the fact that the plaintiff consented to the defendant’s conduct effectively negates the argument that a wrong has been committed, consent is treated as a defence which must be established by the defendant. 
Lewis n. Klar, Q.C., Tort Law, 5th ed. (Toronto: Thomson Reuters, 2012) at 128.
[89]         If a fight is proven to be mutual or consensual, the parties cannot complain of injuries suffered in the course of the fight:
A related matter concern consent to violent acts in other contexts, for example, in the case of “mutual fights”.  The case law supports the proposition that those who engage in fights, even though these activities may be criminal, cannot complain of injuries suffered in the course of the fight, unless the force which is used by one of the combatants is excessive or unnecessary.  The dismissal of the plaintiff’s actions in these cases may be grounded either on the basis of the defence of consent or illegality.
Lewis n. Klar, Q.C., Tort Law, 5th ed. (Toronto: Thomson Reuters, 2012) at 134….
[97]         The conversation then escalated.  Mr. Charland says that Mr. Wheeler’s tone suddenly changed.  I find that the reason for that sudden change in Mr. Wheeler’s tone was Mr. Charland’s telling him to “fuck off”.  After Mr. Charland escalated the conversation to a confrontation, Mr. Wheeler replied with words to the effect of “fat shit”.  There was some loud conversation between the two fathers. 
[98]         Mr. Wheeler then walked away to process Mr. Charland’s response.  He still wanted to resolve the situation and assist his son Cam.  As Mr. Wheeler walked away, Mr. Charland said, “I’ll get you later”, as he told Cst. Lee.  The words he told the court he said, “I’ll do you later”, do not equate, I find, with “I will meet you later”.  In making that statement, Mr. Charland had formed the intention to fight and had chosen to accept what he mistakenly understood to be an invitation to fight from Mr. Wheeler. 
[99]         Mr. Wheeler had walked away 8 to 10 feet to the grassy area.  He walked back part of that distance to Mr. Charland.  Mr. Charland stood up from his chair and moved forward quickly towards Mr. Wheeler.  When Mr. Wheeler saw him coming, he had a real fear of being injured or, as he put it, “run over”.  Mr. Wheeler then hit Mr. Charland once in the head.  The moments of contact between the two fathers included some mutual grabbing which Mr. Geppert described part of, Ms. Brozer referred to as a “kafuffle” and Ms. Korrins described as grappling.  In the course of that interaction, Mr. Charland slipped and fell on the grass.  Mr. Wheeler then walked away after the intervention of some of the other witnesses and observers. 
[100]     Mr. Wheeler did not kick Mr. Charland.  There is no independent evidence of a kick.  If Mr. Charland was injured in his kidney during the altercation at the park, I conclude that the injury occurred from his fall on the grass.  Similarly, Mr. Wheeler’s injury to his eye which resulted in a black eye was a result of the mutual grappling and physical interaction rather than a punch by Mr. Charland directly to Mr. Wheeler. 
[101]     I find that when Mr. Charland got up out of his chair and moved quickly towards Mr. Wheeler who was then 8 to 10 feet away on the grass Mr. Charland had an intention to fight.  Mr. Wheeler reacted by engaging in the fight after walking back toward an angry man.  Mr. Charland’s action in standing up and moving toward Mr. Wheeler, as it created fear, was an assault.  Mr. Wheeler responded with a punch which was a battery.  I conclude that the proper characterisation of the altercation between the two fathers is that it was consensual. 
The Court went on to order that the Defendant pay the Plaintiff’s costs providing an expensive lesson to the Plaintiff for this incident.

Surveillance and You-Tube Videos Mount "Serious Attack" on Personal Injury Claim

Written by admin on . Posted in ICBC Privacy Issues.


A few years ago I discussed  litigants spying on themselves through the use of social media.  Reasons for judgement were released this week by the BC Court of Appeal demonstrating this reality in action.
In this week’s case (Bialkowski v. Banfield) the Plaintiff was involved in a 2007 motor vehicle collision.  He claimed significant damages and proceeded to trial.  Although there was medical evidence in support of his claim a jury outright rejected it and awarded $0 in damages.
The Plaintiff appealed arguing that such a verdict was “not open to the jury on the evidence“.  The BC Court of Appeal disagreed finding that credibility was a live issue and surveillance and even You-Tube evidence was introduced which could have explained the Jury’s rejection of the medical evidence.   In dismissing the appeal the Court provided the following reasons:
[25]         A major thrust of the respondent’s case was an attack on the credibility of the appellant.  Evidence was adduced of long-term, pre-existing medical issues and personal difficulties the appellant had been obliged to face over the years.  The surveillance video showed him undertaking physical activities that were not compatible with his claimed injuries.  It was supplemented by YouTube videos to the same effect.
[26]         The appellant presented evidence that he has medical difficulties, both physical and mental.  The difficulty is that the appellant was obliged to satisfy the jury that the injuries were caused by the accident.  There was evidence that these difficulties were more severe manifestations of pre-existing problems.  Although he presented a potentially persuasive case that he was injured as a result of the accident, the jury did not accept it. The respondent mounted an apparently successful, serious attack on the appellant’s case aimed extensively at his credibility.
[27]         I have reviewed the litany of medical evidence as canvassed by the parties.  A trier of fact could have concluded that the accident caused compensable injury to the appellant, but it certainly was open to the jury to conclude otherwise.  In my view, there was evidence on which the jury rationally could reach its verdict.  I do not think there is a basis in this case for this Court to interfere with the weight given by the jury to the evidence overall.
[28]         I would dismiss this appeal.

Undeclared Income And Tort Recovery Difficulties

Written by admin on . Posted in ICBC Wage Loss.

Although income loss from ‘undeclared’ sources is recoverable in a BC personal injury claim attempting to do so can create some practical difficulties.  First off testifying to actual income differing from declared income can open the door to consequences to Revenue Canada.  Second, proving the loss can become a real barrier for a Plaintiff.  This second concern was highlighted in reasons for judgement released recently by the BC Supreme Court, Prince George Registry.
In the recent case (Welygan v. Willms) the Plaintiff was injured in a 2008 motorcycle accident.  While much of her claim was rejected at trial the Court did accept that she suffered from some injury and wage loss.   The Plaintiff worked in the food service industry and derived some of her income in tips.  Her tips were undeclared.  The Court did not accept the level of loss that the Plaintiff testified to and in doing so the Court provided the following comments highlighting the difficulty in assessing losses based on undeclared income:
[396]     Her only irregular employment was as a server in bars from time to time where she earned minimum income supplemented with undeclared income from tips.
[397]     Undeclared tips is a commonplace occurrence for young people working in the food service industry, although it makes it more difficult to determine the plaintiff’s actual pre-accident income when the only evidence of the value of the tips comes from her “estimate” at trial, unsubstantiated by any written record.
[398]     The plaintiff possessed a certificate from a medical terminology course that she never used, and says she had aspirations to go to hairdressing school although she had not made any inquiries or taken any steps towards that end.
[399]     I am unable to assess her pre-trial loss of income claim on any other basis than her history of earnings from the food service industry, using her income tax information, and adding a somewhat arbitrary amount for tips that I will accept she was receiving but not reporting, for the time period in which I conclude she was incapable of returning to that work because of injuries related to the accident.
[400]     I have found that the plaintiff recovered from her disabling pain from the accident by the end of 2008, and by that point in time her pre-existing psychiatric illnesses had settled back to their pre-accident level and were no longer exacerbating her physical pain.
[401]     The plaintiff says she intended to continue working at Steamers Pub until September 2008 and then go to hairdressing school.
[402]     She was making approximately $660 per month in 2008 from Steamers Pub, up to the time of the accident, from her income tax records.
[403]     In addition she says she was making about $900 per month from undeclared tips.
[404]     I am not prepared to accept a figure of $900 per month for tips without some independent proof. I will accept an amount of half that number of $450 per month for tips.

Back From Maui, Back to Blogging

Written by admin on . Posted in Uncategorized.

OK, I technically did not take a real break from this blog as it was kept updated, I did, however, rely on a lot of previously drafted posts which I save up for publication while on holiday.  I’ve just returned from a brief but much enjoyed trip to Maui with my family.  I will be back in the office later this week and start catching up on all of your correspondence.  In the meantime a few photos for your enjoyment.  Aloha!


Clinical Records Admitted Without Authentication? – No Harm No Foul Says BC Court of Appeal

Written by admin on . Posted in Civil Procedure, Uncategorized.


Reasons for judgement were released last week by the BC Court of Appeal addressing, among other topics, whether a new trial should be ordered after clinical records were introduced to a jury without proper authentication.
In last week’s case (Desharnais v. Parkhurst and Romanowski) the Plaintiff was injured in two motor vehicle collisions.  He sought substantial damages as a result but a jury rejected much of his claim awarding $31,000 in damages.  The Plaintiff appealed arguing multiple errors were made at the trial level with the most significant, presumably  being the introduction of various clinical records without proper authentication.  The BC Court of Appeal held that while this was a clear error no harm was done and dismissed the appeal.   The Court provided the following reasons:
[93]         Accordingly, the records could be admitted for the truth of the fact that the statements were made, if the records were kept as part of the counsellor’s ordinary course of business, and were recorded within a reasonable time of the conversation with the plaintiff.  Similar, though not identical, considerations would be made under Ares.
[94]         There was no clear evidence of these conditions having been met.  Normally, the preconditions would be dispensed with by using a document agreement or securing admissions through a Notice to Admit.  I have not been able to find anything in the record to suggest that formal proof was dispensed with.  Rather, in this case the plaintiff objected to their admission.
[95]         In those circumstances, it seems to me that counsel seeking to admit the records as business records under common law or statute would have to tender proof of the preconditions for admissibility:  Cunningham v. Slubowski, 2003 BCSC 1854.  This was not done here. 
[96]         Accordingly, I agree with the plaintiff that the trial judge erred in concluding that the records were admissible without first concluding that there was proof of the preconditions under common law or statute.  Plaintiff’s counsel disputed that the records qualified as business records.  Even if there were little or no substance to his position, the effect of his objection was to require the defence to lead the evidence to comply with the pre-conditions for admissibility.
[97]         Having reviewed the appeal record, however, I do not see this error as sufficient to warrant intervention from this Court.  Had the records not been admitted, the information contained in them would have nonetheless been placed before the jury, as the content of the records was summarized in the report of the plaintiff’s expert, Dr. Rami Nader.  Dr. Nader’s summary of the records included that the plaintiff complained about stress stemming from his relationship with two women and that he suffered a back injury following the accident in his driveway.  Plaintiff’s counsel had the report admitted and sought no limiting instruction on the use of the report.
[98]         Further, the trial judge’s instruction that the records were an example of a prior inconsistent statement was one of several prior inconsistent statements made by the plaintiff.  The trial judge also pointed out inconsistent statements made under oath.  The plaintiff’s own counsel referred to the plaintiff as “a poor historian” in his closing submissions.  On the whole, it seems unlikely that the assessment of the plaintiff’s credibility was significantly influenced by the statements in the records.
[99]         The jury was also unlikely, given the amount of medical evidence, to place much weight on the records suggestion that the plaintiff was symptomatic before the first and second accident.  Further, this information was before the jury by virtue of the plaintiff’s expert’s report.
[100]     Based on the above, I do not see this error as warranting intervention from this Court.