Tag: expert evidence

BC Injury Claims, Expert Evidence and The Duty to the Court

One of the Rules regarding the conduct of expert witnesses in the BC Supreme Court is that they owe a duty to the court to be ‘independent’ and ‘unbiased’ in their opinions.  If experts fail to discharge this duty their evidence can be given little weight or even held inadmissible.
Reasons for judgement were released today by the BC Supreme Court demonstrating this principle of law.
In today’s case (Rizzolo v. Brett) the Plaintiff was injured in a 2005 motorcycle accident when a left turning driver proceeded in front of the Plaintiff in an intersection in Maple Ridge, BC.  The defendant was found fully liable for this collision (the case contains a good discussion of the duties of left turning motorists and is worth reviewing for anyone interested in this area of the law).
The Plaintiff suffered significant fractures of his tibia and fibula which required surgical intervention.  Damages of over $560,000 were awarded including $125,000 for non-pecuniary damages (pain and suffering) for the injuries which were summarized by Madam Justice Allan as follows:

[41] Mr. Rizzolo`s altered position, arising from the Accident caused by the defendant’s negligence, is characterized by continuing pain, changed mood, loss of ability to work effectively and happily, and a much-reduced capacity to engage in recreational sports.  He must take pain killers and anti-inflammatories although they upset his stomach, requiring him to take additional medication.

[42] At present, Mr. Rizzolo experiences constant pain in his left ankle, which is exacerbated by his work activities.  His left foot swells and he experiences occasional pain in his left knee.  He limps when he is tired or in severe pain.  He takes the following medication: Advil once or twice a week for pain management; Celebrex, an anti-inflammatory, daily; and amitriptylene, an antidepressant, twice a week to help him sleep.  He receives periodic cortisone injections from Dr. Dhawan.

[43] Mr. Rizzolo’s injuries are permanent and they affect his entire life – his job, his recreational and family life, and his sense of well-being.  I do not find that he exaggerated his symptoms and he is highly motivated to be as active as possible.

In advancing his claim the Plaintiff called evidence of an expert witness, an occupational therapist, who had conducted a functional capacity evaluation of the Plaintiff to assist the court in determining a fair award for cost of future care.  The expert employed a ‘unique motion capture system known as the Functional Assessment of Biomechanics System [FAB] to measure biomechanical forces.’  In cross examination evidence came out that this expert was ‘an inventor of FAB‘.  Having this fact revealed in cross examination (as opposed to being revealed up front) appaears to have caused the presiding judge to reject all the evidence of this expert.

In rejecting the evidence of this occupational therapist Madam Justice Allan summarized and applied the law of objectivity of expert witnesses as follows:

[104] In R. v. Mohan, [1994] 2 S.C.R. 9, the Court reiterated that expert witnesses have duties and responsibilities.  In particular, an expert witness is expected to provide an independent, unbiased opinion that is adequately researched and falls within his or her ambit of experience.

[105] I consider Mr. McNeil’s failure to disclose the fact that he is the principal of Biosyn and that he was an inventor of FAB to represent a shocking lack of candour.  As he has testified in the courts on numerous occasions, he is well aware that the duty of an expert is to assist the court with an independent and objective opinion on a particular issue.  To withhold such relevant information misleads the court and, as I have no choice but to reject all of his written and verbal evidence, constitutes a substantial waste of time.   It is impossible to parse out Mr. McNeil’s evidence as a qualified expert from that as an undisclosed salesman for Biosyn.

[106] I do not fault counsel for the plaintiff as I accept Mr. Kazimirski’s statement that he was unaware of Mr. McNeil’s association with Biosyn before Mr. Joudrey’s cross-examination.  While the plaintiff will be entitled to his costs in the result, he may not claim any costs relating to Mr. McNeil’s reports or attendance in court.  Counsel may address the issue of whether the defence is entitled to costs for two days of trial.

Motor Vehicle Cases and Expert Reports Addressing Fault

I have written about the role expert witnesses play in ICBC Injury Claims on several occasions.  These past posts have largely dealt with expert medical witness who typically address the nature and extent of injuries caused by motor vehicle collisions.  What about experts addressing the issue of fault, can they play a role in BC personal injury claims?
The answer is yes but for a variety of reasons such witnesses typically are not involved in claims arising from car crashes.  This is so because in most car crash cases addressing fault expert evidence is not needed because judges and juries are able to use their common sense and collective life experience to determine who is at fault.  However, sometimes more unusual circumstances outside of most people’s typical life experience cause a collision such that expert evidence may be necessary.  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing this issue.
In yesterday’s case (MacEachern v. Rennie) the Plaintiff was severely injured while “walking or riding her bicycle along the King George Highway…when her head struck the side of a large tractor-trailer“.
The Plaintiff’s lawyer tried to introduce an expert witness to give opinion evidence on the standard of care of professional drivers of tractor-trailers, whether the driver in this case met that standard and lastly with respect to evidence regarding the characteristics of large tractor trailers.
The defence lawyers objected to this witness claiming expert evidence was not necessary to assist the court in making findings of fault.  Mr. Justice Ehrcke of the BC Supreme Court disagreed and permitted this evidence in and in doing so engaged in a useful discussion about the role that expert witnesses play generally in BC cases addressing the issue of fault.  For your convenience I reproduce the highlights of this discussion below:

[10]            In Burbank v. R.T.B., 2007 BCCA 215 our Court of Appeal observed that while expert evidence on the standard of care is not usually required in negligence actions, it may be capable of assisting the trier of fact and admissible as necessary in certain cases, particularly where the subject matter is beyond the common understanding of the judge or jury.

[11]            In the present case, while most adults in British Columbia may have some experience in driving motor vehicles, few have experience in driving large commercial tractor-trailers.  Few would know from their common experience what the handling characteristics of such vehicles are, or what the visibility is from the perspective of a driver in the cab, or what the common driving practices are of professional drivers of such rigs.

[12]            Not only have most persons never had the experience of driving such vehicles, most persons would not even be legally permitted to drive them, since to do so one must first satisfy the requirements to obtain a special class of driver’s licence…

 

[15]            In Tucker (Public Trustee of) v. Asleson (1993), 78 B.C.L.R. (2d) 173 (C.A.), Southin, J.A. specifically addressed the issue of expert evidence in motor vehicle negligence actions and observed that a distinction ought to be made between cases involving motor cars and those involving large transport vehicles.  She wrote at pp.194-195:

To my mind, motor car negligence cases differ significantly from all other actions in which one person alleges that the acts or omissions of another in breach of a duty of care have done him injury.

First, the Legislature has laid down for motorists many rules of the road and many requirements concerning the equipping of vehicles, all of which the motorist is expected to obey and which he expects others to obey.  The only other aspect of ordinary life so governed is that of the movement of vessels upon certain navigable waters.  But I do not say that obedience to these rules relieves the motorist from all other obligations.  See British Columbia Electric Railway v. Farrer, [1955] S.C.R. 757.

Secondly, experts are not called to prove the standard of care which is appropriate. Each judge brings into court his or her own notions of what constitutes driving with reasonable care.  As I said in McLuskie v. Sakai in a passage quoted in the appeal from my judgment (1987), 12 B.C.L.R. (2d) 372 at 378 (C.A.):

The difficulty with these motor car cases and matters of negligence is that whatever we may be saying, what we are doing as judges is, in fact, applying our own knowledge of driving to the facts in the absence of any other evidence.  That is what a judge does every time he says that the defendant should have avoided an obvious obstruction.  I, on the balance of probabilities, am not satisfied that a competent driver coming upon that ice on that bridge on that morning with both hands on the wheel could have done other than Mr. Sakai did.  Therefore, it follows that I do not think he was negligent.

To put it another way, in motor car cases the judge is his or her own expert.  That is not to say that there could not be expert evidence on the proper way, for instance, for the driver of a mammoth transport vehicle to drive.  If, on such an issue, the plaintiff called an expert to say that such a vehicle should not be driven under certain circumstances at more than 40 miles per hour and the defendant called another expert who said the contrary, the learned trial judge could and usually would be obliged to choose one expert over the other.

[16]            Expert evidence on the standard of care has been considered in a number of negligence cases involving the operation of heavy vehicles.  See for example Millott Estate v. Reinhard, [2002] 2 W.W.R. 678 (Alta. Q.B.) and Fuller v. Schaff, 2009 YKSC 10.

[17]            I am satisfied that Mr. Eckert should be qualified as an expert witness and permitted to give opinion evidence in the areas outlined above.  I find that he has the necessary qualifications and that the evidence is necessary in the sense explained by the Supreme Court of Canada in Mohan.  What weight should be attached to his evidence is, of course, a matter that can only be determined at the end of trial.

BC Personal Injury Claims and the Cost of Litigation

Personal Injury Claims can be very expensive to prosecute.  There are many typical expenses involved such as court filing fees, process servers, administrative expenses and the costs associated with gathering relevant information and documents.  However, by and far the greatest expenses associated with prosecuting a Personal Injury Claim are expert witness fees.
Expert witnesses play a role in almost every Personal Injury and ICBC Injury Claim.  Typical expert witnesses include family physicians, treating therapists such as chiropractors and physiotherapists, specialist physicians such as orthopaedic surgeons and physical medicine doctors.  In serious cases where the effects of the injury are permanent often times economists, future cost of care experts and vocational consultants are retained as well.
All of the above professionals are entitled to charge for their involvement as an expert witness in an ICBC Injury Claim and these costs can be significant.  Reasons for judgement were released yesterday (Narvaez v. Zhang) illustrating just how expensive an expert witness can be in a case involving serious injuries.
In yesterdays case the Plaintiff suffered a serious brain injury as a result of a 2004 collision when she was struck as a pedestrian in Richmond, BC.  The case settled before trial for $850,000 plus costs and disbursements.  One of the disbursements incurred by the Plaintiff’s lawyer was associated with expert witness reports by a well respected economist.  
The economist had to prepare ‘several different future income loss assessments and different cost of future care calculations in order to show losses based on (various) plans‘.  In preparing these reports the economist charged about $10,600.
The Defendants refused to pay this account in the settlement claiming it was excessive.  A motion was brought before Registrar Blok of the BC Supreme Court to determine whether this expense was reasonable in the prosecution of the injury claim.  In concluding that this was a reasonable expense Registrar Blok found as follows:

[19]            Here, the question of what the plaintiff had intended as a career path was very much in dispute: in one version of the evidence the plaintiff was going to train as a registered nurse and move to the United States and in another version she would achieve lesser credentials (e.g., licensed practical nurse) and probably would not be able to emigrate to the U.S.  There was evidence going both ways.  The evidence of the plaintiff’s U.S. immigration plan was not fanciful or unreasonably speculative (in which case the cost might be properly disallowed), and there was a reasonable basis to argue that her examination for discovery admission ought not to be accepted at face value.  A registrar considering whether a disbursement was necessarily or properly incurred need only decide that there was a sufficient basis to incur the cost of a disbursement relating to a certain claim; it is not the role of the registrar to decide whether that claim would have succeeded.

[20]            For these reasons I conclude that the evidence supporting the claimed disbursement is admissible and that it was reasonable for plaintiff’s counsel to have asked the economist to provide opinion evidence on U.S.-based scenarios.

[21]            The defendants also argue that the scope of the economist’s reports is excessive in that he was asked to opine on six different scenarios in circumstances where it would have been sufficient to set out just a couple of the more likely scenarios and to then provide a multiplier for the jury to use (for this was to have been a jury trial) to assess damages for any other scenarios the jury concluded would be most likely.  Similarly, the economist was also asked to do six different scenarios for the cost of future care (as distinct from future income loss) and, again, the defendants argue that a multiplier and a table would have been sufficient for the purpose.

[22]            In reply, the plaintiff noted that the economist was asked to do more than provide mere arithmetic, he was asked to compile statistical information on earnings of registered nurses both in Canada and the U.S., the earnings of licensed practical nurse and residential care aides, the likely amount of her residual earnings (that is, her likely earnings given her cognitive impairment) and to prepare projections of lost earnings for those positions using two different start years.  As for the cost of future care, had the situation been straightforward (e.g., based on predictable costs that would be incurred in each and every year) it might have been appropriate to have a multiplier with a table or two, but in this case some of the care items were intermittent or temporary, and some were based on possibilities that she would require more extensive care later in life.  It was thus submitted that it would not be reasonable to expect a jury to use a multiplier or table in a fashion that would properly address these cost variations.

[23]            I have reviewed the reports and accounts of the economist in some detail and conclude that in the circumstances of this particular case it was proper for counsel to ask the economist to set out his opinion on future income loss and future care costs using the different scenarios he did.  There were several employment possibilities for the plaintiff and she might either have ended up in the United States or stayed in Canada, and there was the question of the income that she was now capable of earning in her impaired state.  Similarly, for the cost of future care I conclude that it was reasonable for counsel to set out relatively understandable numbers for presentation to a jury in light of the fact that a number of the future care items were uncertain, intermittent or temporary.  I do not think it inappropriate to conclude that a jury might have difficulty using a mere multiplier or table in light of these sorts of complications.

[24]            In the result, I allow in full the amounts claimed for the costs of the economist’s reports.

ICBC Claims, Low Velocity Impacts and Engineering Evidence

Like many insurance companies the ICBC has a “Low Velocity Impact Program” (LVI) where tort claims are denied on the basis of little vehicle damages in collision.
When these claims are prosecuted one of the strategies often used by ICBC defence lawyers is to try to have the trial focus on the amount of vehicle damage sustained in the collision.    This can be done in many ways.  Often the Defendant is called to give evidence on the lack of vehicle damage, photos of the vehicles can be put into evidence and evidence of ICBC Vehicle Repair Estimators is sometimes put before the court.  Sometimes ICBC goes further and retains a professional engineer to give evidence about the amount of force involved in the collision.
British Columbia courts are not always receptive to engineering evidence being permitted in motor vehicle tort claims.  Reasons for judgement were released today by the BC Supreme Court ordering that such a report was indeed inadmissible.  Since the judgement is very succinct and easy to follow I reproduce it in its entirety below:

[1]                The plaintiff applies for an order that the expert report prepared by James Bowler, a professional engineer, not be admitted as evidence on the basis that it is neither relevant nor necessary. 

[2]                Mr. Bowler graduated in 1995 and since then has worked for MEA Forensic Engineers & Scientists.  The report makes the assumption that “the provided materials accurately describe the vehicle damages from this accident.”

[3]                Some of the material that was provided and referred to in the report was a final I.C.B.C. CL14 Repair Estimate and an I.C.B.C. CL14E Low Velocity Impact claim form on the plaintiff’s vehicle, and an I.C.B.C. CL14E Low Velocity claim form on the defendant’s vehicle.

[4]                None of this material is before me.

[5]                The purpose of the report was to prove what speed change occurred when the plaintiff’s vehicle was struck by the defendant’s vehicle.  The vehicles were not examined by the engineer.  He relied entirely upon the photographs and the materials supplied by I.C.B.C.

[6]                Mr. Bowler stated that the impact severity was assessed by comparing the damage in the incident with two staged collisions tests previously conducted by MEA.

[7]                The tests involved a 1985 Mazda RX7 and a 1984 Chevrolet Celebrity.  The plaintiff was driving a Nissan 2002 Sentra GXE 4-door sedan and the defendant was driving a Honda 2005 Element 4-door wagon. 

[8]                The experiment that was conducted by the MEA concluded that on the white Celebrity used in the experiment, which had a mass similar to that of the plaintiff’s vehicle, there was a speed change of 1.3 km/hour. 

[9]                The conclusion reached was that the plaintiff’s vehicle likely sustained a speed change (slowing of 1.3 km/hour to 2.9 km/hour in the accident). 

[10]            The defendant says that the change in speed is a factor that I can consider when determining the injuries suffered by the plaintiff.  However, without medical evidence as to the effect of the change in speed, this information is not of assistance.

[11]            It is trite to say that the opinion expressed by an expert is only as good as the facts that have been proven.  Here, there is no evidence as to the validity of the two-stage collision test conducted by MEA.  There is no evidence as to the qualifications of the people that performed these tests, whether or not this experiment was published in a peer review article, or whether or not Mr. Bowler had anything to do with those experiments.  It seems from the evidence that he did not, as he reviewed two video tapes of these staged collisions.  Additionally, the defendant has not put into evidence the I.C.B.C. Low Velocity Impact claim forms or the repair estimate.

[12]            I find that the report is not admissible.

ICBC Claims, Expert Evidence and Advocacy

If you are involved in an ICBC injury claim you likely know that ICBC may have the right to send you to a doctor of their choosing.   They can do this in one of 2 ways, either pursuant to the Insurance (Vehicle) Regulation which allows ICBC to set up an Independent Medical Exam for any ‘insured’ seeking no-fault benefits, or under the Supreme Court Rules where the Defendant has the right to ‘balance the playing field’ by obtaining an independent medical exam in many circumstances.
Experts hired in such a situation can play a significant role in an ICBC claim.  Much weight can be attached to what an expert has to say with issues such as causes of injuries, prognosis, reasonable treatments and future disability.  Appreciating this it is important for an expert to present any opinion in a fair and balanced way.  However, expert witnesses sometimes cross the line and advocate for the side that hired them.
Reasons for judgement were released today concluding that the orthopaedic surgeon hired by the Defence in a BC auto-injury case acted as an advocate.
In this case the Plaintiff was injured as a passenger in a 2003 collision.  The crash was significant.  The at fault driver was speeding, went through a stop sign and hit another vehicle head-on.
Just over $200,000 was awarded for the Plaintiff’s injuries and losses.  In reaching this decision Madam Justice Martinson made the following findings in rejecting the evidence of the orthopaedic surgeon hired by the Defendant to assess the Plaintiff’s injuries:

[52] In my view the evidence of Dr. Schweigel should be given limited weight.  He is no doubt a well-qualified orthopaedic surgeon.  However, his opinion with respect to causation is based to a large extent on incorrect and incomplete information.  His factual conclusions are, for the most part, inconsistent with the findings of fact made by the Court.

[53] Dr. Schweigel says in his report that (the Plaintiff) told him he had low back pain right after the accident.  He rejected that statement and focused on the fact that (the Plaintiff) had not complained to his doctor about low back pain until several months later.  For whatever reason, he did not have, then or later, the insurance adjuster’s notes showing that he had complained about low back pain shortly after the accident.

[54] In offering his opinion he downplayed the severity of the impact, though he agreed in cross-examination that the more severe a collision, the more likely is injury to the spine.  He did not comment on the fact that (the Plaintiff’s) activities were curtailed after the accident but not before.

[55] He drew inferences from the brief clinical notes of Dr. Alderson that supported the conclusion that the pre-existing low back pain was significant.  When summarizing the May 17th note, he put “less pain” when the note actually says “woke up in far less pain and is much more functional, bending without pain.”

[56] He was prepared to conclude, on very limited evidence, that the post accident incidents that were at issue likely caused the activation of the pre-existing condition.

[57] As I see it, Dr. Schweigel acted as an advocate for the defendants, not an expert whose sole purpose is to assist the Court.  He highlighted all matters that would support the defence position and either downplayed or ignored those that would support the position of (the Plaintiff).

More on Soft Tissue Injuries, ICBC, and Expert Evidence

Reasons for judgement were released today awarding a Plaintiff $12,000 for ‘pain and suffering and loss of amenities‘ (non-pecuniary damages) for ‘a mild soft tissue injury which had essentially cleared within 3 months or so. ‘.
The Plaintiff was rear-ended in 2006 in North Vancouver. The court found that the impact was significant. The Plaintiff complained of headaches, neck pain, low back pain, mid back pain, left elbow and forearm pain and occasional pain shooting to his knees.
In what can be described as a very unusual occurrence, the trial proceeded without any medical opinion evidence addressing the extent of injury. The Plaintiff attempted to have his GP testify but the court would not permit it as proper notice of the ‘expert opinion’ was not provided per Rule 40-A.
The court admitted the doctor’s clinical notes into evidence. The Plaintiff then tried to treat these as notice of what the doctor was going to testify to. The court found this improper and did not permit the doctor to give opinion evidence stating that:

During the trial and following submissions on the issue, I ruled that medical/clinical records cannot be said to meet what was meant by the above-quoted Rule.

[12] In my view, the basis of Rule 40A is to provide adequate notice of evidence which is to be tendered by way of an expert’s opinion to avoid trial by ambush, to avoid unnecessary delays, and to generally permit trials to be run in an orderly fashion. Use of clinical records in the manner suggested by counsel for the plaintiff does not approach, let alone meet, that objective. Rarely is a concise and clear expression of any opinion capable of being gleaned from such records, provided that they can even be deciphered, which is indeed problematic in this case. Further, there is usually nothing in those records that might clearly identify what, if any, of the facts contained therein are being relied upon for any such opinion. Finally, clinical records often contain consultation reports which, while they may be evidence of their existence, most probably cannot be relied upon without proof of the facts or opinions contained in them. I am sure that there are other objections as well.

[13] To have permitted Dr. Marcos to testify as to his opinion on the basis that his clinical records amounted to compliance with Rule 40A would, in my view, have been impermissibly prejudicial to the defendant. In that regard I note that in this case none of the grounds enumerated in Rule 40A(16) had been met. Thus, I am faced with the task of assessing damages due to Mr. Murray based upon his largely uncorroborated testimony alone. I am obliged to be mindful of the observation of Chief Justice McEachern in Price and Kostryba where he said the following:

I am not stating any new principle when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent — that his complaints of pain are true reflections of a continuing injury.

The court went onto award $12,000 for pain and suffering and $180 for special damages.
This case is a great reminder of the need to comply with Rule 40-A if you are advancing an ICBC injury claim in Supreme Court and wish to call expert evidence to give the court an opinion about injuries, causation, future treatment, and prognosis. Failure to do so can result in the court not admitting the evidence which can badly damage an ICBC claim. Here the court expressly stated that “although an opinion of a medical expert such as a medical/legal report from (the Plaintiff’s) GP may have provided a foundation for a factual finding of continuing pain and discomfort, I unfortunately do not have the benefit of such an opinion.
Another note-worthy result of this judgement is the apparent ‘cost’ consequences.
From reading paragraphs 25-29 of the judgement it appears that the lawyer for the defendant made a formal offer of settlement prior to trial which was greater than the judgement. In such circumstances a defendant can be awarded ‘costs’ for the trial. In this case the court awarded $4,400 in costs which would have to be subtracted from the judgement amount prior to the Plaintiff getting paid. In addition, the Plaintiff would not be reimbursed disbursements for the trial and would be responsible for the Defendant’s trial disbursements. After taking all this into account the true value of the judgement may in fact be $0. When considering ICBC claim settlement it is very important to consider the likelihood of beating ICBC’s formal offer at trial.

Contact

If you would like further information or require assistance, please get in touch.

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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