Tag: Advocacy in the Guise of Opinion

Court Finds High Billing ICBC Expert "Strayed Into Advocacy"

Adding to this site’s archived case summaries addressing advocacy by expert witnesses, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a high billing ICBC expert witness’ evidence should be afforded “very little weight” in part based on advocacy.
In today’s case (Redmond v. Krider) the Plaintiff was injured in a 2010 collision that the Defendant was found solely at fault for.  The Plaintiff suffered various physical injuries along with an accompanying psychiatric condition.  The Defendant retained a psychiatrist who gave evidence “that the plaintiff did not develop a new major psychiatric condition due to this motor vehicle accident”.  The Court rejected this evidence and in doing so Madam Justice Maisonville provided the following critical comments:

[115]     Dr. Levin obtained his initial medical qualifications in the then Soviet Union.  There was much questioning of the nature of certain patient treatment at one of the institutes from where he had received his training. 

[116]     Dr. Levin was also cross-examined on the amount of income he received in 2013 from ICBC, and from the Medical Services Plan. .  Suffice it to say that 91% of his income for 2013 was derived from ICBC reports.  In 2012, it was 87%, in 2011, 78% and in 2010, the year of the accident, 60%.  Plaintiff’s counsel therefore argued that Dr. Levin’s report was not in keeping with the Supreme Court Civil Rules, in that it was biased and so not a neutral opinion rendered by an expert for the benefit of the Court…

[120]     Overall, Dr. Levin testified that the plaintiff did not develop a new major psychiatric condition due to this motor vehicle accident, and he found that her level of functioning was inconsistent with the diagnosis of a pain disorder found in her family physician’s clinical records.  He submitted the fact that she had travelled to Las Vegas and participated in boating with her partner went against the conclusion that she was suffering from a psychiatric condition.

[121]     While I have accepted that Dr. Levin is an expert, I find that his report is to be afforded very little weight given his testimony at trial, and given the extent to which his report strayed into advocacy.  It is difficult to ignore the percentage of yearly income gained by the doctor as an expert for one particular party, ICBC, although this alone is not determinative in my finding that Dr. Levin’s report should be afforded little weight. 

[122]     I note that the doctor was argumentative with counsel.  The Court was often required to direct him to answer, as he would not clearly give his evidence in response to simple questions asked.  On cross-examination, he agreed he was not a practicing physical medicine doctor and that he did not assess the plaintiff’s physical injuries, and would defer instead to the plaintiff’s physical medicine doctors, and yet he commented that the plaintiff’s pain and limitations were inconsistent with her stated injuries.  It was difficult to accept his evidence, for the further reason that Dr. Levin stated that if the DSM-5 criteria were applied as a checklist, everyone in the courtroom would have a number of psychiatric diagnoses.  I do not accept that evidence…

[125]     In his report, Dr. Levin said that the plaintiff does not suffer from somatic symptom disorder, as the requirements of that diagnosis are a catastrophic perception of injuries, pervasive preoccupation with pain, and time-consuming, excessive activities.  However, that is not the criteria set out in the DSM-5 which was put to Dr. Levin.  That criteria requires only that there be “[o]ne or more somatic symptoms that are distressing or result in significant disruption of daily life”.  Somatic symptom disorder is a spectrum disorder, and Dr. Levin agreed with that proposition, and yet in his report, he was clearly evaluating the diagnosis as existing only if symptoms fall at the severe end of the spectrum.

[126]     Most difficult for the Court, however, was the aspect of Dr. Levin’s evidence discussing the somatic symptom disorder as it applies to the plaintiff.  As mentioned, he discussed commentary from the DSM-5 about those symptoms that may occur with severe cases of somatic symptom disorder, rather than the specific criteria.  When cross-examined on the actual diagnostic criteria, it became clear that he had not asked the plaintiff questions to determine if she met the diagnosis set out in the DSM-5.

[127]     I do not accept Dr. Levin’s evidence.  I prefer Dr. Anderson’s evidence over that of Dr. Levin.  Dr. Anderson candidly conceded matters, such as that the plaintiff would have a better prognosis if the physical component of her pain disorder was removed, and Dr. Anderson deferred to the physical medicine doctors respecting the plaintiff’s physical pain.  In contrast, Dr. Levin assumed this responsibility and asserted that, as a consequence, the plaintiff did not suffer from any a new psychiatric condition.

[131]     I do not accept Dr. Levin’s opinion and give it no weight.

Defence Doctor's "Bald Proposition" Minimizing Collision Related Injuries Rejected

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, rejecting defense expert evidence minimizing the connection of chronic pain issues to a motor vehicle collision.
In today’s case (Worobetz v. Fooks) the Plaintiff was injured in a 2010 collision and continued to experience symptoms at the time of trial.  The defendant admitted fault but denied the extent of the Plaintiff’s injuries.  In support of his case the Defendant retained a physician who gave evidence that the Plaintiff’s lingering symptoms were likely related to deconditioning and being overweight. In rejecting this evidence Mr. Justice Joyce provided the following critical comments:

[91]         Dr. Grypma’s opinion appears to be based substantially on two things: first, the lack of evidence of any structural injury; and second, her lack of conditioning and mild obesity. Dr. Grypma suggests that if Ms. Worobetz had suffered an injury other than a mild soft tissue injury, she would have experienced immediate pain of such intensity that she would have sought out immediate attention at an emergency room. I am not persuaded, however, that a person need sustain a serious structural injury in order to develop serious and chronic pain following a trauma such as an Accident. There are simply too many cases where persons have been found to have developed chronic back pain following a motor vehicle accident in the absence of objective evidence of structural damage to accept Dr. Grypma’s bald proposition.

[92]         Dr. Grypma’s opinion that Ms. Worobetz suffered only a mild injury that would have healed completely within a few months is contradicted by the evidence of Ms. Worobetz concerning her symptoms and how they affected her functioning, which is supported by the evidence of a number of other specialists who have treated Ms. Worobetz and followed her progress over a long period of time.

[93]         In my opinion, it is a relevant factor that Ms. Worobetz developed her pain complaints very soon after the Accident and that they progressed, with little change, until the present time. I accept that a mere temporal connection between an accident and the development of pain is not determinative by itself that the Accident caused the pain, but it is, nonetheless, a relevant factor. I also accept that the court must be cautious in relying on the subjective complaints of a patient, where there is no other objective evidence to support those complaints.

[94]         However, in this case, there is more evidence than simply subjective complaints and a temporal connection between those complaints and the Accident. I accept that Ms. Worobetz’s symptoms of pain are real and honestly felt. The manner in which they have impacted her functioning is supported by evidence of her husband, mother, co-worker and the woman for whom Ms. Worobetz acts as a support teacher. There is a strong body of expert opinion evidence in this case from specialists in a number of fields to support a finding that Ms. Worobetz’s ongoing pain was caused by the Accident. Those specialists have spent a great deal of time examining Ms. Worobetz, investigating her complaints and providing treatment. In my respectful view, their evidence is to be preferred over that of Dr. Grypma, who conducted a single, rather brief examination and a review of her medical records.

[95]         Dr. MacInnes, in particular, puts forward an explanation as to how Ms. Worobetz could have developed the pain at various sites in her body as a result of a rather modest soft tissue injury that one would ordinarily think would resolve quite quickly: central sensitization. Dr. Grypma admits that he is not qualified to comment on that topic, so he is not able to agree or disagree that it is a reasonable explanation for Ms. Worobetz’s continuing symptoms.

[96]         In summary, I find that but for the Accident, Ms. Worobetz would not be suffering the ongoing symptoms that she feels and her daily activities of life and ability to work would not be affected the way they are. She is less able to enjoy the social and recreational pursuits that she used to enjoy. She is less able to carry out the functions of a mother and wife, compared to her life before the Accident. She no longer has the same ability to work at her chosen career as a teacher because of the Accident.

Court Criticizes Doctor As Being "An Advocate For ICBC"

Adding to this site’s archives of judicial criticism of ‘advocate’ expert witnesses, reasons for judgement were released today  by the BC Supreme Court, Vancouver Registry rejecting the evidence of a defence expert on the basis of advocacy.
In today’s case (Davidge v. Fairholm) the Plaintiff was involved in a 2009 rear end collision.  Fault was admitted.  The Plaintiff suffered a chronic back injury which interfered with both his vocational and recreational abilities.  ICBC had the Plaintiff assessed by an orthopaedic surgeon who largely discounted the crash as playing a role in the Plaintiff’s chronic symptoms.  In criticizing this evidence as ‘advocacy’ Madam Justice Griffin provided the following reasons:

[124]     ICBC called expert evidence from Dr. Olie Sovio, an orthopaedic surgeon, who at ICBC’s request conducted an independent medical examination of the plaintiff on June 27, 2013 and produced a report dated July 2, 2013, admitted at trial.  Dr. Sovio’s opinion seemed to accept that the plaintiff had low back pain and neck stiffness when he saw him.  He characterized the symptoms as subjective but did not offer a reason to believe they were not real.  He recommended that the plaintiff undertake a regular activity, or exercise, program.

[125]     Dr. Sovio’s opinion did not address what caused the plaintiff’s low back pain.

[126]     However, in cross-examination Dr. Sovio made an effort to state his opinion that because there was no abnormality in the plaintiff’s low back for seven months, it did not make sense to attribute that pain to the car accident.  This opinion was offered even though it was not responsive to the question being asked, and was not in his report.  I got the sense from his eagerness to state this that he was being an advocate for ICBC rather than a neutral expert.

[127]     Dr. Sovio’s off-hand opinion in relation to causation was not well explained.  From the context of his evidence, it appeared to be based on his view that the patient had new onset of low back pain that was not there before, seven months after the accident (i.e. it was new when first noted in Dr. Rebeyka’s April 9, 2010 clinical record).  This was despite the plaintiff telling Dr. Sovio that he had low back pain almost immediately after the accident. In other words, Dr. Sovio chose to not believe the plaintiff because Dr. Sovio did not see low back pain documented in the clinical records until later. 

[128]     Just as with the other experts, it is up to this Court to determine whether or not the plaintiff can be believed when he says he had low back problems after the accident that grew in intensity over time. 

[129]     Dr. Sovio did not provide any explanation as to what was the cause of the plaintiff’s low back pain.  According to his evidence, the degenerative changes in the plaintiff’s back should not have prevented him from returning to work in the oil fields.  If that is so, his opinion does not support any conclusion that the degenerative changes limited the plaintiff’s ability to do heavy work and led to the low back pain after the return to work.    

[130]     In the last paragraph of p. 6 of Dr. Sovio’s report, he acknowledged that he was unclear on why the plaintiff took time off work from the oil fields and ultimately attended retraining even though after the WHP he was considered fit to return to work.  Dr. Sovio concluded that the patient chose to retrain rather than return to his drilling occupation, “but this does not seem to be on a physical basis, at least, judging from the medical records”.  In stating this, Dr. Sovio either ignored the plaintiff’s history or did not ask him questions about his experiences after returning to work.

[131]     Dr. Sovio’s report leads me to conclude that he did not understand the plaintiff’s medical history leading up to his attendance at BCIT, including the fact that the plaintiff found work in the oilfields to be too painful and thus too physically difficult after the accident.  It seems somewhat careless for Dr. Sovio to opine that retraining was simply a personal choice and not due to the patient experiencing physical limitations at his work.  

[132]     Dr. Sovio performs many assessments for the Workers’ Compensation Board, and he made it clear in his evidence that he thinks many workers injured at work simply would prefer not to return to work even though they do not have a good reason for not returning.  He offered this as his explanation for discounting the opinion of the plaintiff’s general physician. Unfortunately I felt that Dr. Sovio was unduly cynical and had a bias in this regard and so viewed the plaintiff’s own reports of back pain as not worthy of any weight, which is not an objective approach.

[133]     Dr. Sovio’s approach as to the plaintiff’s ability to work also seemed very superficial.  He did not apparently know the exact nature of the physical tasks the plaintiff must perform in his work and other physical stresses of his job.  When questioned what the job involved, he rather arrogantly said, “I think I know what it’s all about”, when clearly he had little idea and had not asked the plaintiff sufficient questions to gain an understanding. 

[134]     In short, I did not find Dr. Sovio’s evidence to be helpful on the issues of causation or the plaintiff’s ability to work.  

ICBC Doctor Found to be "More of An Advocate Than An Independent Professional"

Adding to this site’s archives of judicial criticism of ‘advocate’ expert witnesses, reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, with critical comments of an orthopaedic surgeon frequently hired by ICBC.
In today’s case (Hay v. Benzer) the Plaintiff was involved in a pedestrian/vehicle collision in 2008.  ICBC had the Plaintiff assessed by a orthopaedic surgeon who largely limited the connection between the collision and the Plaintiff’s symptoms.  The Court placed  “very little weight” on this evidence and in doing so Mr. Justice Cole provided the following comments:
[13]         At the request of ICBC she saw Dr. O’Farrell on July 28, 2009. He is an orthopaedic surgeon. He does a significant amount of work for ICBC and appeared to me to be more of an advocate than an independent professional. He found that the plaintiff would not have any long-term effects from the motor vehicle accident. He had documents only from a physiotherapist dated June 16, 2009. Dr. O’Farrell did admit that if pain was still present two and a half years after the accident that it would most likely be a long-term or permanent pain. Dr. O’Farrell did not produce any notes of his assessment claiming they were most likely in another file. I give Dr. O’Farrell’s evidence very little weight.
 

Defence Expert Witness Found Biased After Presenting "a Distorted Recording of his Interview" With Plaintiff

Adding to this site’s archived cases criticizing expert witnesses for advocacy, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, criticizing the evidence of a defense hired psychiatrist.
In today’s case (Yang v. Engen) the Plaintiff was injured in a 2011 intersection collision.  Fault was admitted by the Defendant.
The Plaintiff suffered moderate soft tissue injuries but her recovery was complicated by “ever-increasing emotional difficulties and mood disorders“.
The Defendant retained a psychiatrist who minimized the connection between the collision and these psychological difficulties.  In finding the expert witness crossed the line into advocacy Mr. Justice Davies provided the following comments:
[53]         After hearing those submissions and reviewing Dr. Levin’s original and rebuttal reports, I concluded that it was necessary to excise as inadmissible the following parts of his reports:
1)    The observation in the body of his opinion that:
It should be mentioned at the beginning of this summary that Ms. Yang’s diagnostic formulation should be viewed in the context of her interview in my office that revealed numerous discrepancies and inconsistencies between her subjectively-reported complaints of anxiety and her virtually-unimpaired social, occupational and interpersonal functioning. Ms. Yang initially omitted and under-reported her pre-existent history of psychological/emotional disturbances, attributing her current subjectively-presented complaints of “generalized” anxiety specifically and selectively to the subject MVA.
2)    The observation in Appendix C of his opinion that:
From a diagnostic perspective, however, the above-reviewed psychological clinical notes do not identify any specific PTSD symptomatology or reports of any type of generalized anxiety described by Ms. Yang during the interview in my office. It seems that Ms. Yang’s “generalized anxiety” disturbances had a somewhat rapid onset following her reported psychiatric consultation with Dr. Lu (organized by her lawyer).
[54]         I excised those paragraphs because:
1)    The excised observations in the body of his opinion not only crossed the line into an improper assessment of credibility but also constituted advocacy in the guise of expertise; and
2)    The excised observations in Appendix C demonstrated an unwarranted and unsubstantiated personal attack not only on the credibility of the plaintiff but also upon a well-qualified psychiatrist and upon plaintiff’s counsel.
[55]         I did not, however, rule that the totality of Dr. Levin’s reports should be determined to be inadmissible at that stage of the proceeding because I was satisfied that fairness to the impugned expert and to the defendant who had relied upon his evidence required that such a ruling should not be made without the benefit of hearing Dr. Levin’s evidence in chief and in cross-examination
[56]         I reached that conclusion also because of the complexities of the subject matter on which Dr. Levin was seeking to opine and in the context of the breadth of the attack by counsel for Ms. Yang upon not only his substantive opinion but also the methodology employed by Dr. Levin in rendering it.
[57]         After hearing his evidence at trial and having the opportunity to consider the totality of his evidence, including both written opinions and the entirety of his testimony at trial, I have concluded that Dr. Levin’s opinion presents a distorted recording of his interview with Ms. Yang by failing to identify with preciseness the questions which he asked of her and by his interspersed editorializing as to what answers he would have expected, all of which constituted his assessment of her lack of credibility which he then used as the basis for his diagnosis. That in turn resulted in a resort to advocacy on behalf of the defendant in relation to issues of causation and, in my view, demonstrated a personal investment in the litigation sufficient to constitute bias.
[58]         Those concerns were even more dramatically highlighted by a highly personalized, and, in my view, entirely unwarranted attack upon Dr. Lu’s opinion and professionalism in Dr. Levin’s rebuttal report delivered in response to Dr. Lu’s critique of Dr. Levin’s analysis.
[59]         In result, I have concluded that Dr. Levin’s opinions suffer so greatly from overstepping the proper bounds of opinion evidence into the assessment of credibility (a function for the trier of fact), advocacy and bias, that they are inadmissible.
[60]         I must also observe that even if I had concluded that some part or parts of his opinions could be determined to be admissible, I would in any event have been required to give such opinions little or no weight because of the many shortcomings to which I have adverted.
[61]         That conclusion is also mandated because while Dr. Levin improperly questioned the veracity of many of Ms. Yang’s responses to his questions and offered his versions of what responses he would have “expected,” counsel for the defendants did not confront Ms. Yang with the alleged “inconsistencies” and “discrepancies” relied upon by Dr. Levin in rendering his opinions.
[62]         What is left is simply an array of unfounded and untested allegations of dishonesty and exaggeration that do not accord with my own assessment of Ms. Yang as a witness.
[63]         Notwithstanding that English is Ms. Yang’s second language she is fluent in it and well able to express herself. She impressed me as a stoical, careful and honest witness who listened carefully to the questions asked of her and responded without exaggeration.
[64]         Although the anxiety she testified about now suffering related to seemingly common everyday life situations may seem wholly disproportionate to the circumstances she related in her evidence which manifest in those reactions, the totality of the evidence, including most importantly the psychological evidence of Dr. Lu to which I have referred in detail, convinces me that the anxiety she expresses is genuine.
[65]         In summary, I find that I can safely rely on the veracity of Ms. Yang’s testimony concerning the injuries she suffered in the collision, the progress of those injuries and the extent to which they have impacted her life both on a physical and emotional level.

Expert Witness Judicially Drubbed for Showing "a Lack of Willingness to Be Frank, Open and Honest With The Court"

In perhaps one of the strongest judicial drubbings in recent years by the BC Supreme Court, an expert witness was criticized for abandoning his obligation to assist the court in favour of advocacy.
In today’s case (Mattice v. Kirby) the Plaintiff was injured following a high impact collision.  The Court heard competing medical evidence as to the severity of the Plaintiff’s collision related injuries.  In rejecting the defense evidence which minimized these Mr. Justice Jenkins had the following critical comments:
 [1]             This case involves a significant claim for damages for personal injuries following a high impact collision on August 21, 2009. Of particular interest in this case is the dramatically different approaches taken by the medical experts for both sides. In spite of statements by these experts that they are aware of their obligations as expert witnesses under Rule 11-2(1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, and their duty to assist the Court and not be an advocate for any party, in some cases it is clear that the temptation to become an advocate takes priority over the obligation to assist the Court…
[75]         Dr. Keith Christian, an orthopaedic surgeon, provided an expert report for the defence and was also cross-examined at trial. Dr. Christian assessed Mr. Mattice on October 19, 2012 and issued a report the same day. Dr. Christian completed his interview and physical examination of Mr. Mattice in a total of twenty minutes, which included 16 minutes for the interview and four minutes for the physical examination. Dr. Christian did not disagree that his assessment of Mr. Mattice was very brief.
[76]         During cross-examination, Dr. Christian was very argumentative and often arrogant. He stated that when asked previously by defence counsel whether he took notes of his meeting with Mr. Mattice, he advised that he did not take notes. At trial Dr. Christian admitted to having taken “scribbles”, which he said were illegible and which he destroyed after dictating his report on the day of the assessment. He said he had denied having taken notes as he had instead made “scribbles” and that no one had asked him if he had taken any “scribbles”. Since Dr. Christian admitted on cross-examination to having used his “scribbles” to dictate his report, there is little doubt in my mind that his “scribbles” were what any doctor would consider “notes” and that Dr. Christian was well aware that his “scribbles” constituted what anyone else would consider to be “notes”. His answers in this inquiry were most evasive and clearly showed a lack of willingness to be frank, open and honest with the Court.
[77]         Dr. Christian’s interview and physical examination of Mr. Mattice were without question incomplete. On cross-examination, Dr. Christian admitted that he had not asked Mr. Mattice questions regarding, among many other things: the severity of the accidents of 2008 and 2009; any symptoms in his hands such as pain and “pins and needles”; whether symptoms, if there were any, were improving; bruising on Mr. Mattice’s elbow; the nature of his employment; the extent of the pain in his shoulder; and sleep problems. Dr. Christian also did not inquire about aspects of the accident that were relevant to the injuries claimed, such as Mr. Mattice’s body position in the 2009 accident and how he was impacted in the accident. In written submissions, counsel for Mr. Mattice listed 18 areas of legitimate inquiry that Dr. Christian could have pursued to provide a more informed and unbiased opinion; in my view, there were areas in addition to these 18 which Dr. Christian could have explored, but elected not to do so….
[82]         In cross-examination Dr. Christian stated that there was no reason at the time for him to be having shoulder pain, that any fatigue being experienced by Mr. Mattice was “absolutely irrelevant”, that there was no reason for Mr. Mattice not to improve, and that there was no reason for Mr. Mattice to have a problem with his shoulder. He stated that, generally, in his opinion, Mr. Mattice should have been over any injuries from the 2009 accident long before the visit to Dr. Christian.
[83]         In conclusion on Dr. Christian’s evidence and opinions, I have no hesitation in finding that his research was incomplete, that he was predisposed to a finding that Mr. Mattice’s injuries were either exaggerated or did not exist, and that by limiting his opinions to musculoskeletal injuries, he was not qualified to opine on the injuries which Mr. Mattice claimed to have suffered in the 2009 accident. As a result, I find the opinions and evidence of Dr. Christian to be of little or no probative value and I am left with the medical-legal opinions of the plaintiff’s expert and all other evidence to make a determination regarding Mr. Mattice’s injuries.
 

Court Finds Dr. Koch "To Be More of An Advocate For ICBC"

Adding to this site’s archived posts highlighting judicially rejected expert witness evidence reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, criticizing the evidence of a defense medical opinion.
In last week’s case (Kristiansen v. Grewal) the Plaintiff was injured in a 2009 collision.  Fault was admitted.    The Plaintiff alleged a host of consequences from the crash.  Although the Court found that some of the Plaintiff’s difficulties originated from issues other than the collision the crash was causative of some of her difficulties.
In the course of the trial the Court heard from a variety of physicians.  Once expert, Dr. Koch, hired by ICBC, was found to be an advocate and his evidence was not accepted for this reason.  In rejecting his evidence Mr. Justice Romilly provided the following brief comments:
 [14]         Among the experts, I found that Dr. Koch’s report and his testimony in court seemed to lack objectivity. In fact, he seemed to be more of an advocate for the defendants and ICBC. I have difficulty accepting any of his evidence.
 

"Rigid" Expert Evidence Regarding Soft Tissue Injuries Rejected by BC Supreme Court

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing ‘rigid’ evidence which downplayed the relationship between lingering symptoms and a motor vehicle collision.
In this week’s case (Mezo v. Malcolm) the Plaintiff suffered a variety of soft tissue injuries in a motor vehicle collision.  These remained symptomatic at the time of trial.  The Defendant hired an independent medical examiner who stated that “all soft tissue injuries heal within 12 to 16 weeks after a motor vehicle accident….the plaintiff’s symptoms outside this time range cannot be soft tissue injuries related to the trauma of the Accident
In rejecting this ‘rigid’ opinion as unhelpful Madam Justice Russell provided the following reasons:
[114]     I found Dr. Bishop to be rigid in his point of view and unable to do other than say that if the plaintiff’s pain continued long past the 12 to16 month time limit for the healing of soft tissue injuries, the pain could not come from soft tissue injuries. In my view, this begs the question of why the plaintiff continues to suffer pain from activities which place stress on her spine. That her injuries are not objectively demonstrable does not mean she does not suffer pain.
[115]     Dr. Bishop agreed in cross-examination that there can often be soft tissue injuries in patients where the pain endures more than 16 weeks but which are not objectively determinable.
[116]     The plaintiff’s pre-existing low back pain has not been a factor in the injuries stemming from the Accident.
[117]     I did not find Dr. Bishop’s report helpful.

"Outrageous" Behavior Still Not Enough to Overcome Expert Witness Immunity

Although the  UK Supreme Court has recently stripped away at expert witness immunity the BC Courts appear reluctant to do so.  Reasons for judgement were released last week by the BC Court of Appeal addressing this.
In last week’s case (Lower v. Stasiuk) the parties were involved in a family law proceeding.  In the course of the proceeding a psychiatrist provided evidence who was found to be an “advocate” and whose actions were deemed “outrageous“.  Following this the Claimant sought to add the psychiatrist as a party and to seek special costs against him.  Both the BC Supreme Court and Court of Appeal refused to allow this noting that expert witness immunity guarded against such a remedy.  The BC Court of Appeal provided the following reasons:
[69]         It is not clear to me that the exception to witness immunity articulated in Phillips properly applies to a witness in Dr. Hay’s position.
[70]         Secondly, as noted by at least two of the justices in Jones, it has not been determined that Phillips was correctly decided.  Dr. Hay argues that Smith J. misinterpreted the Symphony case, on which he relied, and points out that in Symphony, the claim for third party costs (which was rejected by the Court of Appeal) was made on the basis that the third-party company had funded and been the “driving force” behind the defence (at 149) ? akin to maintenance.  Mr. Justice Smith expressly acknowledged that one of the bases for the claim against the third party in Symphony was that it was maintaining the action (at para. 60).
[71]         Thirdly, Dr. Hay suggests that adopting the exception to witness immunity from Phillips creates uncertainty about the boundaries of the immunity.  The evidence of the expert witness in Phillips was rejected on the basis that he breached his duty to the court by failing to view the issues objectively and straying into advocacy (see Smith J.’s reasons for judgment from the hearing in which the expert’s evidence was considered:  Phillips v. Symes (No. 1), [2004] EWHC 1887 (Ch) at para. 94).  Dr. Hay asks how an expert would know in advance what conduct could expose him to a claim for costs.
[72]         All of these reasons suggest caution in adopting the exception to witness immunity as has apparently been done in the U.K.
[73]         Another reason not to follow Phillips is that the trial judge did not have the opportunity to consider it and this Court does not have his decision on the question to review.  Were we to embark on such a change in the law at first instance, Dr. Hay’s only opportunity for an appeal would be with leave of the Supreme Court of Canada.  It is more appropriate that such a change be considered in the normal manner at first instance by a justice of the B.C. Supreme Court, followed by review by this Court.
[74]         I find no basis to interfere with the trial judge’s conclusion that witness immunity bars the father’s application to add him as a party for the purpose of assessing special costs.
[75]         It follows that I would not accede to this ground of appeal.

Physician's Evidence Rejeced for Lack of "An Open Mind" Regarding Collision Related Injury

Adding to this site’s archived judicial comments about expert witness evidence that is judicially rejected, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an L4/5 disc injury caused by a motor vehicle collision.
In this week’s case (Sekihara v. Gill) the Plaintiff was injured in a 2007 collision.  Although liability was denied the Defendant was found 100% responsible for the crash.   In the course of the trial the Defendant relied on an orthopedic surgeon who blamed some of the Plaintiff’s persisting symptoms not on the collision but instead on “deconditioning, her recent pregnancy and weight gain” and pre-existing conditions.
The Court rejected this evidence finding the plaintiff, who was a former professional athlete, suffered an L4/5 disc injury in the crash which was responsible for her persisting symptoms and assessed non-pecuniary damages at $130,000.  In rejecting the defence medical evidence the Court provided the following criticism:
[160]     On behalf of the plaintiff, it is submitted that Dr. Grypma’s opinion should be given no weight for the following reasons:
1.     He took what can only be described as a cursory history from Ms. Sekihara;
2.     he made a number of editorial comments in the section titled “medical records review” which were not identified as being his own comments;
3.     in that same section he left out salient facts which tended to support Ms. Sekihara’s complaints;
4.     also in that section, if he was unable to read handwriting, he simply left those sections out of his summary without stating that he had done so; and
5.     he was evasive at times in his oral testimony.
[161]     I agree with the plaintiff’s submissions regarding Dr. Grypma.  In his evidence, Dr. Grypma does not appear to have demonstrated an open mind in his examination of and conclusions regarding Ms. Sekihara or to have taken into account the complete medical history.
[162]     Most importantly, Dr. Grypma’s opinion that the enduring complaints of back pain are related to any of the four unrelated conditions is inconsistent with the evidence of Ms. Sekihara and of the objective evidence of the tear of the annulus fibrosis. 
[163]     Ms. Sekihara, as a snowboarder and professional athlete, many times per day for years, would load her spine with at least 3 times her body weight every time she made a jump with no back pain.  I do not accept Dr. Grypma’s evidence that it is coincidental that she suffered back pain immediately following the motor vehicle accident due to degeneration or a previously existing pars defect. 
[164]      It was Ms. Sekihara’s inability to pursue her regular activities due to her back pain which caused the deconditioning, not vice versa.  Ms. Sekihara had ongoing low back pain long before she became pregnant.  The pars defect was congenital and the degenerative changes longstanding. 
[165]     The characterisation of the low back injury is the major issue.  I prefer the evidence of Dr. Hershler who diagnosed it as a disc injury at L4/5.  His conclusions are based on his interpretation of the imaging, his examinations, and on Ms. Sekihara’s reporting of her symptoms, both pre and post-accident.

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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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