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Tag: bc injury law

Costs Ordered To Be Paid To Insured Defendant; Not Insurer

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14. 64 Comments on Costs Ordered To Be Paid To Insured Defendant; Not Insurer

When an ICBC insured Defendant is awarded costs following successfully defeating a BC Supreme Court lawsuit, do the costs get paid to the litigant or to the insurer?  To date there are contradictory authorities addressing this (you can click here to read a case awarding costs to the party and here for a case awarding them to ICBC).
Adding to the uncertainty, reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, indicating that the personal defendant gets the benefit of the costs payment.
In this week’s case (Nadeau v. Okanagan Urban Youth & Cultural Association) the Plaintiff was injured when struck by a vehicle.  He sued a personal defendant arguing he was the driver and also ICBC arguing that they were liable in the event that the personal defendant was not the driver.  The Claim against the personal driver was ultimately dismissed and the claim against ICBC succeeded.
The Defendant was awarded costs, however, Mr. Justice Powers found that a ICBC should be responsible for payment of the costs to the  personal Defendants.  In doing so the Court provided the following reasons:
[135]     . I order that the plaintiff recover 85 percent of his costs from the defendant, ICBC, at Scale B. I also order that the plaintiff recover the costs he is required to pay to Mr. Usseni and James Mugambi and James Kibigi from the defendant, ICBC. I am satisfied that this is one of those cases which fall within Rule 14-1(8) of the Civil Rules, where the plaintiff should recover the costs it pays to those defendants as a disbursement in its bill of costs against the defendant, ICBC.
[136]     The central issue in this proceeding on liability was which vehicle struck the plaintiff and who was operating that vehicle. If it was not the vehicle owned by Ms. Mutanda and driven by Mr. Usseni, then it would be a vehicle operated by an unidentified driver. The only question with regard to liability of the defendant, ICBC, for the unidentified driver, was whether the accident occurred on a highway so that s. 24 of the Act applied. Of course, the extent of the negligence of the operator and of Mr. Nadeau were also in issue, but those were in issue in any event.
[137]     In this case, not only was it reasonable for the plaintiff to bring its action against Mr. Usseni and Ms. Mutanda, James Kibigi and James Mugambi, as well as ICBC pursuant to s. 24 of the Act, it was the only course available to the plaintiff. There were real and legitimate issues of fact as well as issues of law that could not be resolved without a proper trial. The cause of action against each defendant was the same. The only issue was which defendant was liable depending on findings of fact.
[138]     In my opinion, it would be unfair to require the plaintiff to pay the costs of Mr. Usseni, Ms. Mutanda, James Kibigi and James Mugambi, without the ability to recover those costs from the unknown driver, or in this case, ICBC, pursuant to their liability under s. 24 of the Act.

Sensible Compromise Suggested in Face of Late Medical Developments

Written by admin on . Posted in BCSC Civil Rule 12. 51 Comments on Sensible Compromise Suggested in Face of Late Medical Developments

When medical developments unfold deep in the litigation process it is not uncommon for adjournment applications to be granted.  Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, addressing such a situation urging parties to make reasonable compromises to accommodate these developments.
In the recent case (Dhillon v. Bowering) the Plaintiff was injured in two collisions that the Defendants admitted fault for.  In the course of the lawsuit the Plaintiff was assessed by an orthopaedic surgeon who felt some of the Plaintiff’s symptoms may be due to a possible labral tear.  An MRI was suggested.  The Plaintiff obtained an MRI which did indeed show bilateral labral tears.   The Plaintiff served an updated medical report addressing this.  This report, however, was authored and served outside the timelines required by the Rules of Court due to the timing of the MRI.
The Defendants requested a defence medical exam to address this issue.  The Plaintiff consented to this late examination provided the Defendants did not object to the late report the Plaintiff served.  The Defendant did not agree to these terms and instead brought an adjournment application.  Master Taylor refused to adjourn the trial noting the Plaintiff bore some risk in proceeding as the Plaintiff’s late report may not be admitted.  In suggesting compromise in such cases Master Taylor provided the following reasons:
[12]         So on one hand we do not have Dr. Shuckett’s report in evidence, and now we have defendants asking for an adjournment so that they can do what they need to do to buttress their case because of the report of Dr. Shuckett, which is not in evidence.
[13]         In my view, this problem could have been easily resolved by both parties agreeing to the late service of Dr. Shuckett’s report as well as the DME report from Dr. O’Brien and the matter would have proceeded.  Now we are faced with an adjournment application of a trial that is 11 days away, the first accident which occurred more than five years ago…
[18]         Well, with the greatest of respect to counsel, I do not know if prejudice would be an operating theme here in this application.  I think what is more to the point, and I pointed that out to counsel at the early stage of this application, is that, first of all, there is a hurdle that plaintiffs have to get over before a defendant should be even concerned about this fact.  The fact that they have not had a DME with respect to a labral tear in the left hip is not so much their concern but rather the causal connection.  I have not seen anything in any of the reports that would be suggestive in any way whatsoever that there is anything but the accident as a causal connection.  Now, if that is the only reason, ultimately, that the defendants are relying upon for an application for adjournment in this matter, then I think the defendants do not succeed in their application.
[19]         Accordingly, I dismiss the application for adjournment, and I will award costs to the plaintiff in any event of the cause, not payable forthwith. 
 

Fibromyalgia and PTSD Claims Rejected, $40,000 Non-Pecuniary Assessment for Lingering Soft Tissue Injuries

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Adding to this site’s BC soft tissue injury caselaw database, reasons for judgement were released recently by the BC Supreme Court, Kamloops Registry, assessing damages for a lingering Grade II soft tissue injury.
In the recent case (Nokleby v. Fiddick) the Plaintiff was involved in a 2007 rear-end collision.  Fault was admitted by the rear motorist.  The Plaintiff suffered from soft tissue injuries to his neck and shoulder and these continued to be symptomatic at the time of trial and were expected to linger into the future.  The Plaintiff also advanced allegations that the collision caused fibromyalgia and PTSD although this evidence was not accepted.  In assessing non-pecuniary damages for the lingering soft tissue injuries at $40,000 Madam Justice Hyslop provided the following reasons:
[83]        I find that the plaintiff, as a result of the accident, injured his neck which caused headaches and injured his left shoulder. I find that as a result of the shoulder injury the plaintiff can continue with his employment activities and all his activities and responsibilities both at home and on the farm. I find that in performing some of his farm activities he may experience some discomfort…
[85]        I find also the plaintiff’s shoulder injury interferes with him being able to split wood to heat his house. The plaintiff claims that as a result of his injuries, in particular his shoulder causes him to fall more. However, Dr. Laidlow found no medical explanation for this…
[90]        I award the plaintiff $40,000.00 in non-pecuniary damages. In doing so, I take into consideration the difficulties the plaintiff suffered in pursuing his farming activities.
 

Field Used as Parking Lot Deemed "Highway" In ICBC Hit and Run Claim

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 152 Comments on Field Used as Parking Lot Deemed "Highway" In ICBC Hit and Run Claim


One of the restrictions in bringing a lawsuit against ICBC for damages caused by an unidentified motorist is the incident needs to occur on a “highway“.  Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, addressing the definition of highway in the context of a hit and run claim.
In this week’s case (Nadeau v. Okanagan Urban Youth and Cultural Association) the Plaintiff was struck by an unidentified motorist while standing in a field that was used as a parking area for an outdoor concert.  The Plaintiff sued ICBC for damages.  The Court ultimately decided that given the use of the private property at the time it was a highway and the unidentified motorist claim could proceed.  In so finding Mr. Justice Powers provided the following reasons:
[82]         The Motor Vehicle Act, R.S.B.C. 1996, c. 318 defines “highway” as follows:
“highway” includes
(a) every highway within the meaning of the Transportation Act,
(b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and
(c) every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited,
but does not include an industrial road;
[83]         In the present case, the issue is whether the place where the accident happened falls within the definition of “highway” in s. 1(c) of that definition. The defendant, ICBC, denies that the place where the accident occurred was a “highway” on the basis that it is a private place to which the public did not have access, or was not invited for the purposes of parking.
[114]     On June 30, when Mr. Nadeau attended the concert with his friend, Mr. Jong, they parked in an area that Mr. Jong described as an area where people with passes parked. However, there is no evidence about what passes were needed, even when this area was controlled by security. There were passes for security, crew, media, artists, guests, all access and production. It is not even clear that everybody that entered this area with a vehicle required a pass. They used their pass to get into this parking area. On July 1, when they returned, Mr. Jong’s memory is that they passed through the secondary gate and that he had to show a pass to security people at this gate. He recalls there were a couple of rows of parked vehicles in this area. He says that later in the evening, before the accident, when he came and went, that there was no security at this gate, he was not stopped, and was not required to provide any pass. Mr. Nadeau’s evidence as well is that he does not recall any security at this gate later that evening on July 1, when they attended. Mr. McMann’s evidence was that initially, in the secondary area, people needed a pass to park in this area, but then things got slack. Mr. Tosh Mugambi could only be sure that the VIP area was being strictly controlled. There were a number of different kinds of passes. The concert goers had ticket stubs, but there were a large number of different kinds of passes, artist passes, VIP passes, guest passes, and the guest could be anybody, including volunteers, or anybody who happened to receive a pass from either one of the organizers or even the owners of the property who had a number of passes.
[115]     The area has been described as a field and physically it was a field. It is private property. However, it was being used as a parking lot when the accident occurred. At some point during the concert, there was some control over who had access to this area. However, that was not consistent throughout the concert, and I am satisfied that by the evening of July 1, this secondary area was no longer being controlled or restricted by the organizers or by security. The public had access to this area for the purposes of parking. The primary parking for the concert goers was in the general parking area, but there was no longer any control or restrictions on parking in the secondary area. Therefore, I am satisfied that for several hours before and, certainly at the time of the accident, this was a place in which the public had access for the purposes of parking. The public at this time included concert goers who might proceed through this secondary gate and clearly included anyone who was there in order to carry on the business of putting on or assisting in some way with the concert, or their friends or supporters. The people that had access at that time was a broad enough group to fall within the definition of the public in s. 1(c) of the Motor Vehicle Act.

Lawyer Ordered to Pay Costs Personally for "Shoddy Piece of Counsel Work"

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 3.

In an illustration of a seldom used power, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, ordering a Plaintiff’s lawyer to pay costs to Defendants personally pursuant to Rule 14-1(33) after bringing an unsuccessful application to renew a lawsuit.
In this week’s case (Drover v. BCE Inc.,) the Plaintiff sued various Defendants challenging system access fees collected by cellular companies.   It was a proposed class action.  The lawsuit was filed in 2004 and various Defendants were served the lawsuit via fax.  Some Defendants questioned the propriety of fax service to which the Plaintiff’s lawyer responded “we believe the Court will accept service by Facsimile“.
No steps were taken to perfect service until 2012 when the matter was brought before the Court with the Plaintiff asking the Court to permit “the plaintiffs to serve the statement of claim”.  The Court refused noting that the Plaintiff’s lawyer “did not bother to consider the relief that might be available under the Rules.  Instead, he seemed to be content with putting a general concept in his application in the hope of attracting the court’s sympathy.”  The Court found this was “unacceptable” and dismissed the application after canvassing the factors under Rule 3-2(1).
Mr. Justice Weatherill awarded multiple Defendants costs and further ordered that the Plaintiff’s lawyer personally pay these.  In doing so the Court provided the following reasons:
[62]         In my view, this is an exceptional case.  The conduct of counsel for the plaintiffs has caused costs to be wasted through delay and neglect.  Plaintiffs’ counsel neglected this action for over 8 years.  When he got around to dealing with it by bringing this application, he failed to set out the proper relief.  Furthermore, the application was not supported by any evidence explaining either the delay or the failure to comply with the Rules regarding the need for an endorsement and proper service.  Moreover, the application was brought against defendants against whom there was no basis for the order(s) sought.  To say that this was and has from the outset been a shoddy piece of counsel work would be an understatement.
[63]         I am ordering that E.F. Anthony Merchant, Q.C. be personally liable for the foregoing awards of costs, payable forthwith.

Lack of Financial Means Defeats "Failure to Mitigate" Allegations

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 53 Comments on Lack of Financial Means Defeats "Failure to Mitigate" Allegations

As discussed on numerous occasions, a Plaintiff who fails to take reasonable steps to aid in their own recovery can have their damages reduced for a ‘failure to mitigate’.  In considering weather a Plaintiff’s failure to seek treatment is reasonable their personal circumstances are taken into account.  It is well established that lack of funding can reasonably excuse a course of otherwise helpful therapy.   Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further demonstrating this principle.
In this week’s case (Rozendaal v. Landingin) the Plaintiff was injured in two collisions.  She was faultless for both.  She suffered soft tissue injuries to her neck, shoulders and upper back which continued to the time of trial and were expected to carry on in the future.  Non-Pecuniary damages of $40,000 were awarded.
The Defendant argued that the Plaintiff’s damages should be reduced due to her failure to carry on with physiotherapy.  Madam Justice Holmes found that greater therapy indeed would have made a difference but given the Plaintiff’s circumstances her failure to attend was not unreasonable.   In dismissing the defendant’s arguments the Court provided the following reasons:
[66]         On the medical evidence, I find that Ms. Rozendaal likely could have improved to a greater extent and more quickly had she undertaken a focussed course of strengthening and conditioning therapy or training designed for her particular injuries, such as Dr. O’Connor outlined in his second report.  The various forms of massage Ms. Rozendaal undertook gave her relief from her pain, but, as Dr. O’Connor explained, passive therapies did not help rehabilitate the muscles which, ultimately, were causing that pain.
[67]         The question is whether Ms. Rozendaal acted unreasonably by failing to undertake the recommended therapies or programs.  I find that in her particular personal circumstances, she did not.  ..
[70]         As I find, Ms. Rozendaal’s life circumstances left her unable to fund any form of ongoing treatment or therapy.   From their early days together, she and Mr. Landingin have worked extremely hard to educate themselves for careers and to provide financial support and loving care for their young family.  It is clear from the evidence that life was not easy for them.  I have no difficulty accepting that other financial priorities displaced ongoing physiotherapy or active rehabilitation for Ms. Rozendaal, particularly since it seemed to her that massages from Mr. Landingin and exercises she did at home were just as helpful. 
[71]         As I find, Ms. Rozendaal was mistaken in this assessment.  However, it was only when Dr. O’Connor saw Ms. Rozendaal before preparing his second report (of January 18, 2012), and asked her to demonstrate the exercises she had been doing since he had seen her six months earlier, that he realized that he had not given his instructions specifically enough:  Ms. Rozendaal was doing light aerobic work and some gentle neck exercises, but no real strengthening.  Dr. O’Connor testified that because Ms. Rozendaal had evidently misunderstood his recommendation in the previous report, he described the recommended conditioning more explicitly in the second report.
[72]         The law does not require perfection in the pursuit of rehabilitation.  It requires instead that a plaintiff make efforts which are reasonable and sincere in the plaintiff’s own personal circumstances:  Gilbert at para. 203.
[73]         On this basis, in Tsalamandris v. MacDonald, 2011 BCSC 1138 at paras. 227-30, varied on other grounds 2012 BCCA 239, the Court found no failure to mitigate where the plaintiff was unable to pursue the recommended treatments because of life circumstances that included a pregnancy, the care of small children at home, and her inability to perform the recommended exercises properly without the help of a personal trainer.
[74]         I find similarly that Ms. Rozendaal’s efforts at rehabilitation were reasonable and sincere in her own personal circumstances.

ICBC Expert Evidence Rejected for Advocacy

Written by admin on . Posted in Uncategorized.

Adding to this site’s archived posts highlighting judicial criticism of expert witness advocacy, reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, rejecting the opinion of an ICBC retained expert in a chronic pain case.
In this week’s case (Dakin v. Roth) the Plaintiff was injured in three separate collisions.  At trial she introduced evidence from a variety of medical experts including an occupational therapist.  ICBC retained an expert who criticised this evidence.  The Court, however, was ultimately critical of ICBC’s rebuttal expert’s opinion finding it was not “fair, balanced or objective“.  In rejecting the rebuttal evidence Mr. Justice Cole provided the following reasons:
[38]         What is most disturbing about Ms. Taylor’s report is that she describes what she says are discrepancies in Ms. Dakin’s reports to various medical professionals at various points in time. She then lists approximately 1½ pages of these discrepancies and states that it was appropriate for her to make these comments as they were relevant in assessing a client’s reliability. When questioned why she also did not highlight the consistencies within the plaintiff’s reports to other medical professionals, she could not provide a rational answer. I am satisfied that the only reason she provided discrepancies in the plaintiff’s reports to other medical professionals was to attack the plaintiff’s credibility. Her evidence was not fair, balanced or objective, I am satisfied that Ms. Taylor was more of an advocate on behalf of a client. I therefore reject her evidence.

Why Labels Don't Matter – More on BC Injury Claims and Non-Pecuniary Damage Assessments

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Fibromyalgia Cases, ICBC Thoracic Outlet Syndrome Cases. 63 Comments on Why Labels Don't Matter – More on BC Injury Claims and Non-Pecuniary Damage Assessments

When assessing damages for injuries the BC Supreme Court will not address the injuries as ‘items on a grocery list’.   The exact label attached to an injury is far less important than the ways in which an injury compromises a Plaintiff’s life.  This was highlighted in a recent judgement from the BC Supreme Court, Kamloops Registry.
In the recent decision (McKay v. Powell) the Plaintiff was involved in three rear-end collisions.  As a result she suffered from a chronic pain disorder.  As is often the case, in the course of her lawsuit the Plaintiff was assessed by a variety of physicians who had competing diagnoses for the Plaintiff’s symptoms, namely fibromyalgia vs thoracic outlet syndrome.  Demonstrating that whatever the correct diagnosis, the symptoms were caused by the collision and the plaintiff was entitled to appropriate compensation, Mr. Justice Meiklem provided the following reasons:
[44]         Clearly the cumulative effects of the three accidents in this case have placed Ms. McKay in a position where she has chronic pain disorder as stated by Dr. Mosewich, regardless of the lack of consensus as to whether there is possibly a thoracic outlet syndrome or fibromyalgia in play. No expert has ventured a specific prognosis as to complete resolution of her symptoms. Dr. Wade holds out a hope that further rehabilitation with exercises will reduce her symptoms while participating in daily activities, recreation and occupation. Dr. Mosewich recommended regular exercise and physiotherapy, but recognized a continuing need for pain modulating medication. If Dr. Apel’s diagnosis of fibromyalgia is correct, the plaintiff’s condition will wax and wane, but there will be no full recovery…
[50]         Considering the cited cases, the individual circumstances in the present case, and the factors relevant to assessing this head of damages as set out in Stapley v. Hejslet, 2006 BCCA 34, I assess non-pecuniary damages in the amount of $65,000.

Facebook Photos Found to be "Of Limited Usefulness" In Injury Claim

Written by admin on . Posted in ICBC Privacy Issues, Uncategorized.

Adding to this site’s archived posts addressing Facebook photos in BC personal injury lawsuits, reasons for judgement were released today by the BC Supreme Court, Vernon Registry, finding such photos to be ‘of limited usefulness‘ when assessing a chronic soft tissue injury claim.
In today’s case (Dakin v. Roth) the Plaintiff was injured in three collisions.  The Defendant unsuccessfully argued that the Plaintiff  “is not a credible witness”.  In support of this argument the Defendant introduced two years of photos taken from the Plaintiff’s Facebook profile.  In discussing the lack of impact of these photos Mr. Justice Cole provided the following reasons:
[55]         The defendants have entered into evidence photos posted on the plaintiff’s Facebook between 2007 and 2009, which the defendants say are inconsistent with her physical limitations.
[56]         I do not place much weight on those photographs. They are staged, at a party, and taken on holidays. As stated by Mr. Justice Goepel in Guthrie v. Narayan, 2012 BCSC 734 (at para. 30) in respect to Facebook photos:  “Those pictures are of limited usefulness. [The plaintiff] is seeking compensation for what she has lost, not what she can still do.” I agree.
 

Show Your Work! – Medical Opinion Rejected For Failing to Outline Supporting Reasons

Written by admin on . Posted in BCSC Civil Rule 11, Uncategorized. 55 Comments on Show Your Work! – Medical Opinion Rejected For Failing to Outline Supporting Reasons


Remember grade school math problems?  You needed to not just give your teacher the answer but also show your work.  The conclusion without the supporting paper-trail wouldn’t pass muster in Grade 5.   The same is true with medical opinions in BC injury trials.  It is not enough for a doctor to relate injuries to a collision, the physician must explain the factual basis underlying their opinion.  Failure to do so can result in a Court placing little weight on a physicians opinions.  This was demonstrated in reasons for judgement released recently by the BC Supreme Court.
In the recent case (Perry v. Vargas) the Plaintiff was involved in a 2006 collision.  She sued for damages claiming long-standing injuries with disabling consequences.  The Court accepted the Plaintiff was indeed injured but disagreed with the Plaintiff’s assertion of long-standing disability being related to the crash.
In the course of the trial the Plaintiff introduced evidence from her treating physician supporting her position.  The Court struggled in giving “much weight” to the physician’s opinion, however, noting that the physician provided “no insight into the reasons for (her) conclusion“.  In addressing the lack of reasoning underlying the opinion Mr. Justice Savage provided the following criticism:
[56]         I find it difficult to give much weight to Dr. Tesiorowski’s opinion with respect to causation. Most of the report appears to simply reiterate what she has been told by others. She was not in fact treating Ms. Perry for the complaints until the passing of Dr. Condon. She only did one physical examination. In the report she does not address any of the intervening events.
[57]         In my opinion there is another more fundamental problem with Dr. Tesiorowski’s report. There is no reasoning linking the current complaints with the December 4, 2006 Accident. That is, she states a conclusion as quoted above but provides no insight into the reasons for that conclusion. I examine this matter in greater detail below…
[122]     The report of Dr. Tesiorowski has another important failing. It refers to a history gained from Ms. Perry and others and then simply states a conclusion. To be useful an opinion must be more than a conclusory assertion on causation. In Montreal Light, Heat & Power Co. v. Quebec (Attorney-General) (1908), 41 S.C.R. 116 at 132, Idington J. said “I refuse to accept unless absolutely necessary the mere ipse dixit of any expert when presented for my acceptance merely as an act of faith, and without the aid of such reasons as his reasoning power, or means of, and result of the use of means of, observations may have developed”.
[123]     The same kind of concern is noted by Binnie J., speaking for the court in R. v. J.-L.J., 2000 SCC 51 at para. 56, [2000] 2 S.C.R. 600. The opinion must assist the trier of fact to form an independent conclusion by “an act of informed judgment, not an act of faith”:
56          In Mohan , Sopinka J. held that the expert evidence in question had to be more than merely helpful. He required that the expert opinion be necessary “in the sense that it provide information, which is likely to be outside the experience and knowledge of a judge or jury, … the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature” (p. 23). In Béland , supra , McIntyre J., speaking about the inadmissibility of a polygraph test, cited at p. 415 Davie v. Edinburgh Magistrates, [1953] S.C. 34 (Scotland Ct. Sess.) , at p. 40, on the role of expert witnesses where Lord Cooper said:
Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. [Emphasis added.]
The purpose of expert evidence is thus to assist the trier of fact by providing special knowledge that the ordinary person would not know. Its purpose is not to substitute the expert for the trier of fact. What is asked of the trier of fact is an act of informed judgment, not an act of faith.
[124]     As there is no reasoning linking the facts referenced in the medical report with the conclusory assertion on causation, I am unable to form an independent conclusion from this opinion. To accept the opinion would simply be a leap of faith, applying the logical fallacy of ipse dixit, in this context, “because she said it”.
[125]     For all of these reasons Dr. Tesiorowski’s opinion is of little assistance to the court.