Tag: Advocacy in the Guise of Opinion

“Little Weight” Given To ICBC Experts in Three Cases Released Today

The BC government is making more noise about Rule of Court reforms regarding expert opinion evidence in personal injury cases in an effort to save ICBC money.  Their not so subtle message is that Plaintiff’s hire too many experts to prove their claims.  If cases released by the BC Supreme Court today are any guide it is ICBC that is in need of reform when it comes to the practice of hiring physicians hoping to refute collision related injuries.

In three separate cases published today by the BC Supreme Court three separate judges found ICBC hired expert opinions deserved “little weight“.

In the first case (Francello v. Cupskey) the Plaintiff was injured in two collisions.  ICBC retained a physician who provided opinion evidence minimizing the Plaintiffs injuries in connection to the crash.  In finding this opinion deserved “little weight” Mr. Justice Burnyeat provided the following comments:

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Defense Doctor Criticised For “Advocacy” and Requiring Cross Examination to “Ferret Out” Opinions

Adding to this site’s archived posts of judicial criticism of expert witness advocacy, reasons for judgment were published today by the BC Supreme Court, New Westminster Registry, rejecting a defence expert for shortcomings in their opinion evidence.

In today’s case (Soltan v. Glasgow) the Plaintiff was injured in two collisions that the Defendants accepted fault for.  In the course of litigation the Defendants retained an orthopaedic surgeon who provided opinion evidence minimizing the impact of the Plaintiff’s injuries and prognosis.  In finding it “difficult to ascribe any weight” to these opinions Mr. Justice Saunders provided the following critical comments:

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‘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:

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“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:

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Defence Doctor Opinion Rejected Where Plaintiff Not Examined and Diagnosis “Inferred”

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for collision related injuries and rejecting defence expert medical evidence.

In today’s case (Mladjo v. Etheridge) the Plaintiff was involved in a 2016 collision.  Fault was admitted by the Defendant.  The crash cause chronic soft tissue injuries and damages were assessed on this basis.

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ICBC Expert Witness Rejected Due to “Selective View of the Facts”

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a Plaintiff’s injuries and rejecting expert evidence retained by ICBC.

In today’s case (Wong v. Draaistra) the Plaintiff was injured in two separate collisions.  Fault was admitted by the Defendants for the crashes.  In addition to physical injuries the Plaintiff developed “psychiatric or emotional problems that have likely increased and prolonged her physical pain, and have caused her life to shrink to near-isolation in an unmaintained home behind almost permanently closed blinds“.

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BC Supreme Court Gives Scathing Reasons Rejecting ICBC Doctor as "Advocate"

Adding to this site’s archived judgments of judicial criticism of expert witness ‘advocacy’, reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, holding a defence expert witness report as inadmissible due to advocacy.
In today’s case (Tathgur v. Dobson) the Plaintiff was injured in two separate vehicle collisions.  Fault was admitted for both by the Defendants.  In the course of the lawsuit the Defendants had the Plaintiff assessed by a physician who provided an opinion minimizing the Plaintiff’s injuries and their connection to the collisions.  In finding the opinion inadmissible and worth no weight Madam Justice Warren provided the following harsh reasons calling the doctor an “advocate” for the defence:

[93]         The question then is whether Dr. Grypma was in fact biased, impartial, or acting as an advocate for the defence.  If I find he was, he is clearly unwilling or unable to fulfill his duty, and his evidence is inadmissible as not meeting the threshold requirement of “qualified expert”.

[94]         Dr. Grypma included the certification required by Rule 11-2(2) in each of his reports, but that is not the end of the matter: see White at para. 48.  The concern is that notwithstanding the inclusion of this certification in his reports, Dr. Grypma assumed the role of advocate for the defence.  For the following reasons, I have determined that Dr. Grypma was acting as an advocate for the defence and, as a result, was not able and willing to provide fair, objective and non-partisan evidence.

[95]         As noted, Dr. Grypma’s opinions rested on five primary footings.  The second and third footings concerning Dr. Grypma’s rear-end accident theories are themselves opinions for which no foundation was expressed in the reports.  The failure to expressly note the foundation for those opinions would not, on its own, be sufficient to exclude the reports at the initial stage on grounds of bias or advocacy.  However, it became apparent that Dr. Grypma is not actually aware of an adequate foundation for these views.  When asked, in cross-examination, to explain the foundation for the opinion that a rear-end accident rarely causes injury to the lower back, Dr. Grypma testified that he had attended courses with others who agreed that an injury to the lower back is rare in a rear-end accident.  He did not say when he attended these courses.  He did not identify the entities or institutions that offered the courses or even their subject matters.  He did not identify who these others were who agreed with him.  He also said that he relied on the conclusions of two professors.  He did not say when those conclusions had been relayed to him or in what form, and he was able to name only one of these professors, having forgotten the name of the other.  He acknowledged not having referred to any scientific publication supportive of this opinion.

[96]         In the circumstances, it is not possible to evaluate the soundness Dr. Grypma’s rear-end accident theories or even determine whether they fall within the scope of his expertise.  More fundamentally, however, Dr. Grypma relied so heavily on opinions for which he had no proper foundation strongly suggests that he had taken up the role of advocate for the defence.  Any doubt about that was removed by Dr. Grypma’s response to being provided with a more complete set of Mr. Tathgur’s clinical records, which undermined another of the foundational footings for Dr. Grypma’s opinion.

[97]         It is not clear to me why Dr. Grypma did not have all of Mr. Tathgur’s medical records, including Dr. Manga’s clinical records and the 2009 MRI, before he wrote his first report in 2011.  It is apparent from his May 31, 2011 summary of the history provided by Mr. Tathgur that Dr. Grypma was aware that Mr. Tathgur had been treated by his family doctor, and that x-rays and an MRI had been performed.  In other words, he knew that relevant records existed.  While he is not required to conduct an investigation (Edmondson at para. 77) it would have been more helpful had he obtained access to these before offering an opinion, particularly before challenging the credibility of Mr. Tathgur’s complaints.

[98]         Nevertheless, irrespective of what Mr. Tathgur told Dr. Grypma about the initial onset of pain following the first accident, it is beyond dispute that Mr. Tathgur did report pain to Dr. Manga the day after the accident and, by the time Dr. Grypma wrote his August 21, 2015 report, he must have been aware of this.  Dr. Manga’s handwritten clinical records are not easy to read but the words “pain neck, low back” are legible in the clinical record for May 27, 2008, and there is also a hand-drawn sketch of Mr. Tathgur’s back with diagonal lines on it at the left side of the neck and the left low back, which is obviously intended to record the specific locations of reported symptoms.  In his August 21, 2015 report, Dr. Grypma complained that Dr. Manga’s records were not legible and he said he had to “go on Mr. Tathgur’s memory as [he found] the family physician’s records were not helpful”, yet he went on to specifically note that the family physician’s records indicated normal range of motion on May 27, 2008, the day after the first accident and the same day that the words “pain neck, low back” and the sketch appear.  He also referred to notations in the clinical records for September 5, 2009 and December 18, 2011 that support his theory, but made no mention of other references that did not support his theory, such as the references to spasm.

[99]         Again, Dr. Manga’s records are not easy to read.  It would have been understandable if Dr. Grypma had refused to comment on the clinical records at all unless they were transcribed.  However, he clearly could read some of the entries and he relied on those that were consistent with his previously stated views.  He cannot overcome the inescapable conclusion that he cherry-picked entries, ignoring those that undermined his opinion.

[100]     Similarly, in his December 3, 2015 report, he noted that the history given to Dr. Hershler concerning symptoms the day after the first accident was materially different from that which he said Mr. Tathgur gave him such that clarification was required, but then he went on to reiterate the same opinion (that significant injury from the first accident was unlikely) based largely on the fact that Mr. Tathgur experienced little or no pain after that accident.  Again, by this time he also had Dr. Manga’s clinical records, which clearly indicated complaints of pain on the day after the first accident.

[101]     For the foregoing reasons, I find that Dr. Grypma lost sight of his duty to the court and instead became an advocate for the defence.  His evidence is inadmissible as a result.  Even if I was not prepared to exclude the evidence, for the same reasons I would give it no weight.  Further and in any event, as discussed below, I accept Mr. Tathgur’s evidence that he did have significant pain the day after the first accident.  Leaving aside concerns of bias, partiality and lack of independence, this finding is incompatible with a key footing for Dr. Grypma’s core opinion and, for that reason alone, I would give his opinion no weight.

Defense Doctor Opinion Rejected After Finding He Acted As "Advocate"

Adding to this site’s archived judgments of judicial criticism of expert witness ‘advocacy’, reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, rejecting the testimony of a defense hired expert.
In today’s case (Nagra v. Stapleton) the Plaintiff was involved in a 2014 collision that the Defendant admitted responsibility for.  Despite voicing some concerns about the Plaintiff’s credibility the Court accepted his medical evidence that he suffered injuries to his neck and low back as a result of the crash.
In the course of the trial the Defendants called a physician they hired who provided an opinion minimizing the collision’s connection to the injuries.  In rejecting this evidence Mr. Justice Cole found this expert “seemed to be more of an advocate” and provided the following critical comments:

[40]         Dr. Laidlow, called on behalf of the defendant, also confirms that movement of the neck noted during joint examination did seem to be consistent with what was observed spontaneously. Dr. Laidlow also found restrictive range of motion in the plaintiff’s neck but was of the view that his physical symptoms are at the same level or consistent with the plaintiff’s physical symptoms as a result of the 2012 motor vehicle accident.

[41]         I have difficulty with Dr. Laidlow’s evidence as he seemed to be more of an advocate, he was argumentative, and based his report, in part at least, on the fact that because there was no record of neck pain prior to his examination of the plaintiff, that the neck pain had been resolved to the state it was prior to the motor vehicle accident.

[42]         Dr. Laidlow’s opinion is based on the assumption that the neck pain that the plaintiff reported at the end of June 2013, continued on through 2013 and 2014, since the plaintiff was still experiencing neck pain when the June 2014 accident occurred. This assumption was made despite the fact that the plaintiff provided no information to suggest he was experiencing these pain symptoms in 2014 at the time of the accident. Dr. Laidlow admitted that he found no clinical records between 2014 and the date of the accident where the plaintiff reported ongoing neck pain or headaches. Dr. Laidlow reviewed the report of the plaintiff’s family doctor to indicate that there were no reports in his records of pain symptoms similar to those sustained in the accident. Instead, Dr. Laidlow relied on a report by Dr. Novak from June 16, where he indicated that the plaintiff was suffering from chronic neck pain “likely since 2012”.

[43]         I prefer the evidence of Drs. Watson and Waseem, however, the weight to be given to their evidence is diminished because I do not find the plaintiff to be a credible witness.

Court Rejects Defence Doctor As Not A "Reliable and Credible Witness"

A finding that a witness lacks credibility is damaging.  This is particularity so when it comes to an expert witness for hire.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, making such a finding with respect to a a doctor hired by Defendants in a personal injury claim.
In today’s case (Palangio v. Tso) the Plaintiff was injured in two collisions and sued for damages.  The Defendants admitted fault but disputed the plaintiff’s injuries.  In the course of the lawsuit the Defendants had the Plaintiff assessed by an orthopaedic surgeon who provided an opinion minimizing the plaintiff’s injuries.  In finding that this expert witness lacked reliability and credibility Madam Justice E.A. Arnold-Bailey provided the following critical comments

[222]     I did not find Dr. Sovio to be a reliable and credible witness in this case. With regard to reliability I find that Dr. Sovio was quick to assume that the Plaintiff was trying to conceal facts that could be material to his examination, for example, in relation to the subsequent accident, whereas had he read the letter of instruction he was sent prior to his examination of the Plaintiff he would have appreciated there was nothing secret about the Subsequent Accident and that the Plaintiff had disclosed it to other medical experts. Furthermore, I note that certain turns of phrase Dr. Sovio used in his report created a negative or false impression of the Plaintiff, like “he seems to be convinced he needs these [the lidocaine injections administered by Dr. Caillier] on a regular basis or he gets more discomfort.” This statement by Dr. Sovio creates the impression that the Plaintiff determines that he needs these injections, completely overlooking Dr. Caillier’s involvement as the pain treatment specialist who administers them. His choice of language is designed to imply that the Plaintiff is malingering or exaggerating his pain in terms of continuing to need the injections. This is contrary to the impartiality the Court expects from an expert witness.

[223]     I also note that Dr. Sovio is not qualified to provide opinion evidence on chronic pain and pain management. He admitted that he has no training with regard to the treatment of headaches, and that he has had no clinical training regarding the treatment of pain.

[224]     In addition, Dr. Sovio was quick to assume that the First and Second Accidents were very minor accidents involving relatively minor forces. Initially he was evasive about his sources, and then when referred to a portion of the record that did not necessarily support such a conclusion, he resorted to his overall impression gleaned from the records. It is also to be noted that Dr. Sovio had no criteria as to what informed his opinion that an accident was minor, relatively minor, or moderate. I find his assessment of the nature of the accidents and the forces involved to be purely subjective and outside his area of expertise.

[225]     Dr. Sovio neglected to refer to the pain he had noted the Plaintiff to have at his C2-3 vertebrae in the “Impressions and Discussion” section of the report, referring only the Plaintiff experiencing mild discomfort on palpation of the paravertebral muscles. I find that he was inaccurate in summarizing his findings, or he was careless. I do not accept his evidence as he tried to explain this oversight away. Either way, the reliability of his report and his testimony was further undermined.

[226]     Where the opinions of Dr. Sovio as to the causes, extent, or treatment of the Plaintiff’s injuries arising from the First and Second Accidents conflicts with the opinions of Dr. Caillier, Dr. MacInnes, and/or Dr. Sidhu, I reject Dr. Sovio’s evidence without hesitation. Even Dr. Sovio acknowledged that an orthopedic examination may not reveal findings in relation to individuals experiencing legitimate pain and chronic pain, and in my view the Plaintiff is precisely such an individual.

"Partisan" Experts Criticized and Rejected by BC Supreme Court

Adding to this site’s archives of judicial criticism of expert evidence, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, rejecting the evidence of two experts the court found gave evidence in a ‘partisan’ fashion.
In today’s case (Thompson v. Helgeson) the Plaintiff was involved in a 2012 collision that the Defendant admitted liability for.  In the course of the lawsuit the Plaintiff was assessed by several experts including two psychiatrists, one retained by the Plaintiff and the other by the Defendant.  The Court gave “no weight to either” finding they were partisan in their evidence.  In rejecting these opinions Mr. Justice Sewell provided the following reasons:

[72]         There is a disagreement between Dr. Ancill and Dr. Levin over whether Ms. Thompson suffers from any recognized psychiatric illness related to the Accident.

[73]         Dr. Ancill and Dr. Levin agree that Ms. Thompson does not suffer from post-traumatic stress disorder. However, they disagree on whether she suffers from any recognized psychiatric disorders.

[74]         Dr. Ancill diagnosed Ms. Thompson with the following conditions:

1.  Post-Concussion Syndrome with Mild Traumatic Brain Injury;

2.  Mild Neurocognitive Disorder arising from a Traumatic Brian Injury;

3.  Adjustment Disorder with anxiety-chronic type;

4.  Major Depressive Disorder-moderate-severe, chronic; and

5.  Somatic Symptom Disorder.

[75]         Dr. Levin’s opinion is that Ms. Thompson does not meet the criteria for any recognized psychiatric disorder.

[76]         I have reservations about the evidence of both Dr. Ancill and Dr. Levin. I found both of them to be somewhat partisan in their opinions.

[77]         I do not accept that Ms. Thompson is suffering from five psychiatric disorders as opined by Dr. Ancill. I have already concluded that she does not have post-concussion syndrome or a brain injury. Having reviewed Dr. Ancill’s report, I am unable to conclude that he took a balanced and unpartisan approach to assessing Ms. Thompson’s mental state.

[78]         On the other hand, Dr. Levin rejected the notion that Ms. Thompson suffered from any psychiatric conditions arising from the Accident and attributed any complaints she had to her pre-existing depression.

[79]         As with Dr. Ancill, I considered the tone and content of Dr. Levin’s report to be very adversarial. In his report, he repeatedly referred to what he described as inconsistencies in Ms. Thompson’s statements to him during her interview. However, on cross-examination, he was forced to agree that these inconsistencies were clarified by Ms. Thompson later in her interview. In addition, he provided no explanation as to why Ms. Thompson has developed the headaches that are her chief complaint and in fact, paid scant attention to their existence.

[80]         I also found Dr. Levin to be argumentative and at times non-responsive in the answers he gave on cross-examination. One example of this was his answers with respect to whether Ms. Thompson met the criteria for Somatic Symptom Disorder with Pain. In his report he said the following:

48.       I defer an opinion about Ms. Thompson’s physical injuries sustained in the subject MVA to specialists in internal medicine and orthopaedic surgery. However, from a psychiatric perspective, Ms. Thompson did not present with a catastrophic perception of her injuries, pervasive preoccupation with pain or excessive time consuming activities trying to manage her pain to the extent that she would be diagnosed with chronic pain disorder as a psychiatric condition currently described in DSM 5 under the rubric of somatic symptom and related disorders.

[81]         When counsel pointed out that the DSM 5 criteria for Somatic Symptom Disorder stated that a catastrophic perception of injuries was only possibly present, Dr. Levin gave unresponsive answers and failed to acknowledge the obvious meaning of the passage in the DSM 5 that he was being asked about.

[82]         Finally, Dr. Levin was the only witness of the many expert and lay witnesses who opined that “Ms. Thompson appeared as an optimistic, future-oriented, and at times cheerful woman who reported her unimpaired ability to enjoy herself and make other people laugh.” Based on Ms. Thompson’s evidence at trial, my own observations of her and the evidence of every other witness who commented on her post-Accident condition, I simply cannot accept that she presented herself to Dr. Levin in that manner.

[83]         I therefore conclude that Dr. Levin lacked the required impartiality and objectivity to provide reliable evidence about Ms. Thompson’s post-Accident condition.

[84]         With regard to the reports of both Dr. Ancill and Dr. Levin, I also do not find it particularly helpful to know whether Ms. Thompson meets the criteria for specific psychiatric disorders set out in the DSM 5. In assessing damages, the question is whether Ms. Thompson’s symptoms are genuine, whether there is a substantial connection between those symptoms and the defendant’s negligence, and the effect that those symptoms have had on the plaintiff.

[85]         After reviewing both opinions, I give no weight to either. It seemed to me that Dr. Ancill was going out of his way to identify every possible mental illness suggested by Ms. Thompson’s reported symptoms, while Dr. Levin seemed anxious to convey the impression that Ms. Thompson was in no distress whatsoever.

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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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