Tag: opinion evidence

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.

The Significant Role of Expert Evidence in Personal Injury Trials

When presenting a claim at trial dealing with future loss it is vital to have appropriate expert evidence to justify sought damages.  Failure to do so can result in a dismissal of the sought damages even if they are unopposed.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry highlighting the importance of medico-legal evidence in personal injury trials.
In this week’s case (Moore v. Briggs) the Plaintiff suffered a fractured skull (fractured left temporal bone) and a brain injury in a 2003 assault.

The Plaintiff sued those he claimed were responsible for the assault.  One of the Defendant’s did not respond to the lawsuit and the Plaintiff obtained default judgement against him.  The Plaintiff asked the Court to award substantial damages including an award for diminished earning capacity.  Despite the Plaintiff’s assessment of damages being unopposed the Plaintiff was only awarded a fraction of his claimed damages and he received nothing for future loss.
In assessing non-pecuniary damages at $40,000 and dismissing the claim for diminished earning capacity Madam Justice Dillon provided the following reasons:

[11] As a result of the assault, the plaintiff continues to have some problem with memory. This has improved over time such that it does not interfere with work or enjoyment of life, but still lingers. He also has difficulty with attention span and focus. He continues to have almost daily headaches. These often interrupt his sleep. He noticed that eye near the indentation in his temple was “lazy”, a couple of times a week at first and now hardly noticeable.

[12] For about four years after the assault, the plaintiff had problems with balance such that he could not walk a straight line and was dizzy when he looked down. He wanted to obtain employment as a greenhand on the log booms but did not consider that he could do the job. This would have increased his hourly pay to $24. Few details were provided about this job prospect. There was no medical evidence to support this inability and the plaintiff testified that any problems with balance had now resolved…

[17] Here, there is evidence of a small depressed comminuted fracture of the left temporal bone that resulted in some memory and motor impairment. From the testimony of the plaintiff, it appears that the motor impairment has resolved over time. There continue to be memory problems, the exact nature of which has not been assessed on a current basis. There are also some continuing headaches that are attributed to the fracture in 2003. The plaintiff lost about two months work and has successfully resumed his career and achieved advancement. His social life appears stable and normal. Any present loss of enjoyment of activities is because of lack of interest as opposed to ability…

[22] After consideration of these authorities and in consideration of the plaintiff’s description of his injury, and given the lack of medical information, non-pecuniary damages are assessed at $40,000…

[24] The plaintiff also claims loss of future earning capacity because of inability to obtain employment on the log booms. He calculated this amount based upon expectations of work life to age 65 at the remuneration rate that he said he would have received as a greenhand. This is contrary to the capital asset approach which has been adopted in this Court (Parypa v. Wickware, 1999 BCCA 88 at para. 63). However, the evidence on this aspect of the claim is scant and unsupported by any medical or actuarial evidence. Further, the plaintiff had successfully advanced in his work at present and said that this is his employment of choice. Further, there was no evidence that his employment aggravated his symptoms. The plaintiff must establish that there is a real and substantial possibility that his earning capacity has been impaired to some degree as a result of the injuries sustained in the assault (Romanchych v. Vallianatos, 2010 BCCA 20 at para. 10). In my view, there is little likelihood of any substantial possibility of an actual income loss in the circumstances here. There is nothing to suggest that the plaintiff will be unable to perform the tasks required in his work of choice. Nothing is awarded under this head of damage.

BC Court of Appeal Clarifies Law of Hearsay Evidence in Expert Reports


Expert reports often contain hearsay evidence.  This is especially true in personal injury cases where expert witnesses review pages upon pages of clinical notes of other physicians in arriving at their opinions.  Today the BC Court of Appeal released useful reasons for judgement confirming that hearsay evidence does not render an expert report inadmissible.  The Court further noted that some types of hearsay evidence in expert reports, even if not independently proven at trial, does not necessarily nullify the experts opinion.
In today’s case (Mazur v. Lucas) the Plaintiff was injured in a 2006 BC motor vehicle collision.  At trial the Plaintiff tendered the report of a psychiatrist.  The trial judge ordered that hearsay portions of the report be redacted and did not permit opposing counsel to cross examine the expert with respect to the redacted portions of the report.  Ultimately the Jury awarded the Plaintiff $528,400 in damages.
The Defendant appealed arguing that the trial judge incorrectly redacted hearsay from the expert reports and unreasonably restricted the cross-examination.  The BC High Court agreed and ordered a new trial.  In doing so the Court repeated the following very useful quote from Mr. Justice Sopinka addressing the reality of hearsay in medical diagnosis:
A physician, for example, daily determines questions of immense importance on the basis of the observations of colleagues, often in the form of second- or third-hand hearsay.  For a court to accord no weight to, or to exclude, this sort of professional judgment, arrived at in accordance with sound medical practices, would be to ignore the strong circumstantial guarantees of trustworthiness that surround it, and would be, in my view, contrary to the approach this Court has taken to the analysis of hearsay evidence in general, exemplified in Ares v. Venner, [1970] S.C.R. 608
The BC Court of Appeal went on to provide the following useful summary of hearsay evidence in expert reports in personal injury lawsuits:

[40]         From these authorities, I would summarize the law on this question as to the admissibility of expert reports containing hearsay evidence as follows:

·                 An expert witness may rely on a variety of sources and resources in opining on the question posed to him.  These may include his own intellectual resources, observations or tests, as well as his review of other experts’ observations and opinions, research and treatises, information from others – this list is not exhaustive.  (See Bryant, The Law of Evidence in Canada, at 834-835)

·                 An expert may rely on hearsay.  One common example in a personal injury context would be the observations of a radiologist contained in an x-ray report.  Another physician may consider it unnecessary to view the actual x-ray himself, preferring to rely on the radiologist’s report.

·                 The weight the trier of fact ultimately places on the opinion of the expert may depend on the degree to which the underlying assumptions have been proven by other admissible evidence.  The weight of the expert opinion may also depend on the reliability of the hearsay, where that hearsay is not proven by other admissible evidence.  Where the hearsay evidence (such as the opinion of other physicians) is an accepted means of decision making within that expert’s expertise, the hearsay may have greater reliability.

·                 The correct judicial response to the question of the admissibility of hearsay evidence in an expert opinion is not to withdraw the evidence from the trier of fact unless, of course, there are some other factors at play such that it will be prejudicial to one party, but rather to address the weight of the opinion and the reliability of the hearsay in an appropriate self-instruction or instruction to a jury.

[41]         The common law is supplemented by the Rules of Court concerning expert reports.  The Rules of Court in force at the time of this trial required an expert to state “the facts and assumptions upon which the opinion is based”.  (Rule 40A(5)(b)).  Rule 11-6(1) which replaces Rule 40A requires the expert to state:

(f) the expert’s reasons for his or her opinion, including

(i)  a description of the factual assumptions on which the opinion is based,

(ii)  a description of any research conducted by the expert that led him or her to form the opinion, and

(iii)  a list of every document, if any, relied on by the expert in forming the opinion.

[42]         New Rule 11-6 expands on what an expert was required to state under old Rule 40A, but does not alter the general principle that it is essential for the trier of fact to know the basis of an expert opinion so that the opinion can be evaluated.  The Rule has a dual purpose.  The second purpose is to allow the opposing party to know the basis of the expert’s opinion so that they or their counsel can properly prepare for, and conduct, cross-examination of the expert, and if appropriate, secure a responsive expert opinion.  Thus, the result of these reasons would be the same if this case had arisen under the new Rules.  There is nothing in these Rules touching directly on the question of the admissibility of hearsay evidence in expert reports.

I have previously written (here and here) that Plaintiff’s need to be wary if relying on a radiologists findings in support of a personal injury claim at trial and ensure that the evidence is independently proven at trial.  Today’s case appears to potentially soften this requirement somewhat.

Expert Evidence: Fact vs. Opinion

When advancing a personal injury lawsuit in British Columbia expert evidence plays a key role.  Be it the diagnosis of injury, prognosis, future care needs, disability or other topics there are no shortage of areas that call for the assistance of expert evidence.
When preparing for trial notice of expert opinion evidence has to be given in compliance with Rule 40A (after July 1, Rule 40A will be replaced with the new Rule 11).
Just because a professional such as a doctor is giving evidence does not necessarily mean that the Rule regarding expert opinion evidence is triggered.  If an expert is giving purely factual evidence then Rule 40A does not apply.  However, if the evidence is not purely factual but also contains opinion then the notice period in Rule 40A is likely triggered.  So what exactly is an expert opinion?  Last week reasons for judgement were released discussing this distinction.
In last week’s case (Anderson v. Dwyer) the Court was asked whether a chiropractor interpreting an X-ray was factual evidence or opinion evidence.  Mr. Justice Schultes provided the following very useful analysis:

[13] In determining the admissibility of Dr. Wooden’s evidence, it is crucial to bear in mind the distinction between expert opinion and factual evidence that is given by potential expert witnesses.  As the learned author of Phippson on Evidence (16th ed.) helpfully observes at para. 33-10, p. 972:

There is an important if elusive distinction to be made in the categorization of expert evidence.  It is generally accepted that there is a difference between evidence of fact and evidence of opinion notwithstanding that it may be difficult to identify the line which divides the two.  It is also well understood that in practice a witness of fact may not be able entirely to disentangle his perceptions from the inferences he has drawn from them.  Although the courts often talk of “expert evidence” as if it were a single category representing in every case an exception to the rule against the reception of opinion evidence, it is suggested that a similar distinction exists in the evidence of experts and it is one which has considerable relevance both to the procedural aspects and to the assessment of the weight of expert evidence.  Expert witnesses have the advantage of a particular skill or training.  This not only enables them to form opinions and to draw inferences from observed facts but also to identify facts which may be obscure or invisible to the law witness.  The latter might simply be described as scientific evidence; the former as expert evidence of opinion.  A microbiologist who looks through a microscope and identifies a microbe is perceiving a fact, no less than the bank clerk who sees an armed robbery committed.  The only difference is that the former can use a particular instrument and can ascribe objective significance to the data he perceives.  The question of subjective assessment and interpretation which is the essence of opinion evidence hardly enters into the matter at all.  An example of the dichotomy can be seen in the case of a conflict between experts on handwriting as to the authenticity of a document.  By virtue of their training, such experts would be able to distinguish parts of letters or techniques of word formation which a layman would be unable to observe.  This is the scientific part of their work.  The question of which features are significant and the inferences to be drawn from them are questions of judgment, assessment, opinion.  This distinction which has now been accorded a measure of judicial recognition is thought to be of some practical utility in considering the weight of evidence given by experts both taken in isolation and when assessing the merits of two competing theories.

[14] This distinction is a very meaningful one in this case.  Any evidence by Dr. Wooden seeking to offer an opinion about the plaintiff’s injuries, such as the inferences to be drawn from the observations in the x-rays or with respect to the cause or mechanism of the injury, would be prohibited because of the plaintiff’s failure to comply with Rule 40A.  However, the witness’s factual narrative of the actions he took and the observations he made, including describing without interpretation, the anatomical features he observed in the x-rays does not amount to offering an opinion and does not offend the Rule.  The fact that he brings special training or experience to bear in having taken those actions and made those observations is not determinative.  It is whether he draws inferences or offers opinion beyond what the actual evidence itself is capable of revealing.

[15] In this regard, I consider this kind of factual evidence to be analogous to those matters described by Madam Justice Garson as being “more in the nature of observations” as opposed to inferences having complex interpretive or diagnostic components when she described how their inclusion in records sought to be admitted as business records did not offend Rule 40A in Egli v. Egli, 2003 BCSC 1716 at para. 25 which was relied on by the defendant in submissions.

More on BC Personal Injury Claims and Radiologists Evidence


(Please note the topic discussed in this post should be reviewed keeping a subsequent October 2010 BC  Court of Appeal in mind)
Further to my previoius article on this topic, if you are advancing a BC Injury Claim and intend to rely on X-Rays, MRI’s or other diagnostic studies which demonstrate injury in support of your case it is vital that you serve the opposing party appropriate Notice under the Rules of Court.  Failure to give proper notice can keep not only the actual studies out of Court but also the opinions of radiologists discussing what these studies show.  Excluding such evidence can be fatal to a claim.  2 judgements were released today demonstrating this principle.
In the first case (Anderson v. Dwyer) the Plaintiff was injured in 2004 BC Car Crash.  At trial her lawyer attempted to put X-rays into evidence and to have a chiropractor give ‘evidence with respect to the contents of the x-rays‘.  The Defendant objected arguing that appropriate Notice of the proposed exhibit and the expert opinion was not given.  Mr. Justice Schultes agreed and in doing so gave the following reasons:





[3] The stated relevance of this evidence is that the x-rays taken after the accident will allegedly show some abnormality in some of the plaintiff’s vertebrae that could have been caused by the accident.  This, it is said, will rebut the defendant’s position that the plaintiff’s pain is largely the result of a degenerative condition rather than of the accident.

[4] The basis for the objection to Dr. Wooden’s evidence is that he is an expert witness and no notice of his evidence has been given as required by Rule 40A of the Rules of Court.  In addition, the defendant has not been given an opportunity to inspect the x-rays as required by Rule 40(13). ..

…While on the evidence by Dr. Wooden seeking to offer an opinion about the plaintiff’s injuries such as the inferences to be drawn from the observations in the x-rays or with respect to the cause or mechanism of the injury would be prohibited because of the plaintiff’s failure to comply with Rule 40A.


[16] As to the lack of compliance with Rule 40(13) the cases make it clear that in such circumstances the court has a discretion to admit the evidence (see, for example, Golden Capital Securities Ltd. v. Holmes, 2002 BCSC 516), but that in exercising its discretion it should take into account the absence of any proper explanation for the failure to disclose…

[17] In this case, the explanation is that counsel for the plaintiff thought it sufficient to simply notify the defendant of the existence of the x-rays and invite counsel to contact Dr. Wooden directly to inspect them.

[18] I do not think such a passive approach was sufficient.  The requirement in the Rule that the parties be “given the opportunity to inspect” an item connotes some positive action on the part of the party in possession of it.  At the very minimum, efforts should have been made by counsel for the plaintiff to facilitate the viewing of the x-rays.  It was not appropriate for the defendant to be invited to seek out the treating chiropractor himself even if consent by the plaintiff was said to be readily forthcoming.

[19] The very importance to her case ascribed by the plaintiff to the x-rays speaks to the necessity of her having obtained and disclosed copies of the exhibits in a proactive manner.

[20] There being no satisfactory explanation of the failure to comply with Rule 40(13) I decline to exercise my discretion to allow copies of the X-rays themselves to be admitted in evidence.  Because a witness may refresh his memory from anything that will assist him that process, even if that source itself is inadmissible (see R. v. Fliss, 2002 SCC 16 at para. 45) Dr. Wooden may refresh his memory by reviewing the x-rays should the need arise during his evidence.

_______________________________________________________________________________________________

In the second case released today, Gregory v. ICBC, the Plaintiff wished to put an expert report into evidence that gave an opinion based on the assumption that “there has been a partial tear of (the Plaintiff’s) subscapularis tendon.”  The doctor relied on a radiologist’s interpretation of an MRI as the source of this opinion.  The radiologists report was not put into evidence and the radiologist was not called as a witness.
The Defence lawyer argued that the opinion of the expert should be inadmissible in these circumstances.  The Court agreed.  In doing so Madam Justice Kloegman gave the following reasons:

[3] Dr. Chu’s second report discloses that his opinion is based on an assumption   that there has been a partial tear of the subscapularis tendon.  The defendant takes issue with that alleged fact.  The plaintiff has taken no steps to prove the truth of this assumption.  Originally, she did not intend to enter the radiologist reports interpreting the MRI scans.  Now counsel advises that she could lead them through Dr. Chu.  However, all this would do is show the source of Dr. Chu’s assumption.  It would not prove the truth of the radiologist’s interpretation, which in effect is just another expert opinion.

[4] Although the radiologist reports are expert opinions, the plaintiff has not served them pursuant to Rule 40, nor has she given notice of any intention to call the radiologists.  Therefore, it is obvious that she does not intend to prove as a fact this assumption about the partial tear.  Dr. Chu’s second report is based solely on this assumption of a partial tear.  There will not be any evidence proving the truth of this assumption, therefore, any opinions that are based on the partial tear as the primary assumption must be considered irrelevant and inadmissible.

These cases illustrate that if you wish to prove an injury through diagnostic imaging care should be taken to ensure that appropriate witnesses are available to get the evidence before the Court and further that appropriate notice is given to opposing counsel.

More on BC Injury Claims and Biomechanical Engineering Evidence


Further to my recent post on this topic, the evidence of biomechanical engineers is becoming more common in BC injury lawsuits.
Biomechanics is the study of forces applied to biological tissue and the injuries that can result from such forces.  In litigation it is easy to imagine the use such expert opinion evidence can be put to in proving causation of injuries.
Biomechanics is a relatively new scientific field.  Courts are generally conservative and can be slow to accept ‘novel‘ scientific evidence.  Despite judicial conservatism, biomechanical evidence does appear to be gaining acceptance by BC Courts as demonstrated in reasons for judgment released today.
In today’s case (More v. Bauer) the Plaintiff suffered a severe brain injury while playing hockey.  The Plaintiff claimed his helmet was negligently designed and sued the manufacturers of the helmet.  In support of his claim he called a biomechanical engineer who gave evidence in the field of biomechanics and the biomechanics of safety standards.
The Defendants did not challenge his qualifications to give this evidence, however, at the conclusion of the expert’s testimony the Defendants brought a motion to rule the testimony inadmissible arguing that the expert’s “underlying methodology and science are so flawed that the evidence (does not meet the legal test for admissibility)” and that the expert was “biased and purposely misled the court to assist the plaintiff“.
Mr. Justice Macaulay rejected the motion and concluded that the evidence was in fact admissible.  In doing so the Court recognized biomechanics as an “accepted area of scientific and academic expertise“.  The Court reasoned as follows:
[1] Dr. Stalnaker has a Ph.D. in theoretical and applied mechanics. Through much of his lengthy career, he has worked in the branch field of biomechanics. He also has practical experience in standards development for certification purposes although not specifically with regard to hockey helmet standards. Biomechanics involves the study of body kinematics ? the forces applied to biological tissue and the injuries that can result. The plaintiffs sought to qualify Dr. Stalnaker as an expert in biomechanics and the biomechanics of safety standards…

[12] Mohan sets out the current approach to the admissibility of expert evidence. Mr. Justice Sopinka outlines the following criteria for the admissibility of opinion evidence:

(1)      the evidence must be relevant to some issue in the case;

(2)      the evidence must be necessary to assist the trier of fact;

(3)      the evidence must not contravene an exclusionary rule; and

(4)      the witness must be a properly qualified expert.

[15] Assessing reliability includes determining whether the science or technique the witness uses to reach a conclusion is “novel”. Novel science will be subject to a stricter level of scrutiny than theories or techniques that are more generally accepted…

[23] To conclude, in assessing reliability when exercising my gatekeeper role, I must determine whether the approach the impugned expert takes is novel. If Dr. Stalnaker is relying on a novel theory or technique, I should exercise a higher level of scrutiny when examining reliability, in order to prevent the trial becoming “a medical or scientific convention with an exchange of highly speculative points of view” (R. v. J.E.T. at para. 77).

[24] In assessing reliability, I may find the Daubert factors helpful, but need not apply them too strictly. The purpose of applying the factors is to determine the degree of uncertainty present in the impugned expert’s analysis. The question is whether “the degree of uncertainty is unacceptable given the likely effect upon the trial process and the trier of fact. The level of acceptable uncertainty may depend upon the purpose for which the evidence is tendered and the use made of the evidence by other experts” (Wolfin at para. 20). Both the mode of trial and the importance of the evidence to making a final determination of the matter are factors to consider. If a theory or technique is implausible it will not be admitted.

[25] I remain persuaded that biomechanics is a recognized and accepted area of scientific and academic expertise. I am satisfied that Dr. Stalnaker is qualified to give opinion evidence in the area of biomechanics including in relation to safety standards. Opinion evidence is necessary to assist me in drawing appropriate inferences of fact.

Scope of Neuropsychological Evidence in BC Brain Injury Cases Discussed


Reasons for judgement were published today on the BC Supreme Court website dealing with the scope of permissible neuropsychological opinion evidence in BC Brain Injury Cases.
When ICBC or other BC brain injury cases go to trial a neuropsychologist is a common type of expert witness called by both Plaintiff and Defence Lawyers.  Neuropsychologists are extensively trained with respect to the cognitive and behavioural consequences of brain injuries and for this reason their evidence is often vital in the prosecution of brain injury claims.
In today’s case (Meghji v. Lee) the Plaintiff alleged she suffered a traumatic brain injury.  In support of her case the Plaintiff sought to have a neuropsychologist give opinion evidence with respect to the cognitive and behavioural sequelae of brain injuries and also with respect to whether the Plaintiff suffered from organic tissue to her brain.  The Defence lawyer objected claiming the latter opinion is outside of the scope of a neuropsycholgists permissible expert opinion.  Mr. Justice Johnston agreed with the defence objection and summarized and applied the law as follows:

[27] Counsel for the plaintiff wants Dr. Malcolm to be permitted to give an opinion on whether Ms. Meghji has had an injury to her brain. I looked briefly at Dr. Malcolm’s written reports, and in his first report, the one of February 1, 2007, Dr. Malcolm provides an overview of the place of psychometric testing in his overall task in this way. He says:

Once the test results are determined to reflect the person’s neuropsychological status with acceptable accuracy, the question remains as to whether clinically significant test results reflect organic damage, or stem from other factors, such as psychological causes. The neuropsychological process considers all of these possibilities in reaching diagnostic conclusions. The conclusions reached are based on a balance of probability, the strength of which is indicated where possible.

[28] At the risk of appearing to be overly semantic about this analysis, I take it that what counsel want Dr. Malcolm to be able to do is to testify by way of opinion about whether or not there has been some form of harm or damage to the tissues of the brain of Ms. Meghji as opposed to some form of harm or damage to the mind or emotions or personality of Ms. Meghji. Whether there is a distinction between the brain as an organ of the body, on the one hand, and the mind and personality of the person in whose body the brain is found, on the other, is a metaphysical question that I hope I never have to answer in a court of law. I am going to confine myself to what I think is in issue, and that is Dr. Malcolm’s qualifications as a neuropsychological and whether they permit him to provide the ready-made inference through opinion on whether there has been physical harm or damage to the brain as an organ of the body, and in my view, they do not.

[29] The statutory regime does not, in my view, go any further than to allow testing, assessment, diagnosis of, and therefore opinions on the abilities, aptitudes, interests, et cetera, or the behaviour, emotional, or mental disorders, that is, disorders of the mind. These conditions may arise with or without damage to the structure or tissues of the brain. They may be associated with or flow from injury or damage to the brain itself. They may arise from or flow from other causes. It does not necessarily follow that because Dr. Malcolm is permitted by statute to test, assess, or diagnose behavioural, emotional, or mental disorder that he must therefore be permitted to give in evidence his opinion that the cause of any of these conditions stems from an injury to the tissues or structures of the brain.

[30] In my view, Dr. Malcolm’s qualifications do not go so far as to permit that opinion.

[31] That does not say that Dr. Malcolm cannot give, in evidence, his opinion based upon the results of his testing, nor does it prevent Dr. Malcolm from giving an opinion on whether the test results as evaluated by him are of a nature, kind, or quality seen in people who have been diagnosed as having had organic brain injuries.

[32] In my view, the distinction drawn by Mr. Justice Clancy in Knight remains appropriate, and that is, Dr. Malcolm is qualified to give his opinion on the cognitive and behavioural sequelae of brain injuries and to indicate the relative likelihood of any cognitive and behavioural abnormalities being the consequence of a traumatic brain injury, but to paraphrase Mr. Justice Clancy, it does not permit him, that is, Dr. Malcolm, to diagnose physical injury and the manner in which it was incurred.

[33] It therefore follows that Dr. Malcolm will not be permitted to give his opinion on whether Ms. Meghji has had an injury to the tissues of her brain or, obviously, as to the cause of any such injury, but he will be permitted to testify as I have indicated.

BC Supreme Court Addresses Scope of Expert Witness Cross Examination

Reasons for judgement were released today addressing the permissible scope of Cross Examination of an expert witness in a BC Injury Claim.
In today’s case (MacEachern v. Rennie) the Defendants called a physician to give expert opinion evidence.  This physician happened to be a treating doctor of the Plaintiff’s prior to her injuries.  While testifying the doctor was taken through his clinical records by defence counsel on an entry by entry basis.  The doctor was asked what happened on each of those clinic visits and in canvassing this the doctor gave evidence about the prognosis and treatment of Hepatitis C (which is an area the doctor apparently was not called to address).
The Plaintiff then wished to cross examine the doctor about treatments and the prognosis for Hepatitis C.  The Defence lawyer objected to this on the basis that such a cross examination would “call for new opinion that are not admissible since the Plaintiff has not served the defendants with notice of those opinion“.
Mr. Justice Ehrcke swiftly rejected the Defendant’s objections noting that they could not restrict the cross examination on a topic which they chose to ask the doctor about in direct.  Specifically Mr. Justice Ehrcke noted as follows:

[11]         With respect to the first point, the CN Defendants argue that the notice which they served on the plaintiff in connection with Dr. Glynn-Morris contains only treatment opinions and does not touch on the area of the plaintiff’s Hepatitis C. This argument misses the mark. The plaintiff is entitled to respond to all the opinion evidence led by the CN Defendants, not just that which was contained in the written statement of Dr. Glynn-Morris’ opinion. It was counsel for the CN Defendants who chose in direct-examination to ask Dr. Glynn-Morris about testing of the plaintiff for Hepatitis C. It was in direct-examination that Dr. Glynn-Morris opined that in 30 percent of people, Hepatitis C cures itself and disappears, and that he ordered a test to see if that is what had happened in Ms. MacEachern’s case. Having opened up that area in examination-in-chief, the CN Defendants cannot now restrict the plaintiff’s cross-examination about it simply on the ground that it was not covered in the written statement that they had delivered to the plaintiff.

[12]         In any event, the proposed evidence is also truly responsive as a rebuttal to the opinion of another expert witness called by the CN defendants, Dr. Baker, whose report entered at Tab 1 of Exhibit 61 states:

I note Ms. MacEachern had already contracted hepatitis C which with her ongoing ingestion of multiple drugs would likely have progressed with liver damage and possible cirrhosis and eventual liver failure.

[13] Nevertheless, the CN Defendants argue that even if the proposed line of questioning did not require notice pursuant to the provisions of Rule 40A, notice was still required because of the case management order made in respect of this trial on February 6, 2009, which provided, among other things, that the plaintiff’s reply or rebuttal reports were to be delivered by January 29, 2009. The CN Defendants point out that Dr. Baker’s report was delivered to the plaintiff on December 1, 2008. They submit therefore that any opinion evidence in reply to Dr. Baker’s report should have been delivered to them by January 29, 2009.

[14]         The short answer to this argument is that the deadlines set out in the case management order relate to expert witnesses that each party proposed to call as witnesses in their own case. The order does not, by its terms, require a party to give notice of the questions it proposes to ask in cross-examination of another party’s witnesses, even if those questions in cross-examination have the effect of eliciting an expert rebuttal or reply opinion.

[15] The case of Canadian National Railway Company v. Canada, 2002 BCSC 1669, 8 B.C.L.R. (4th) 323 cited by the CN Defendants is distinguishable, because that case did not deal with the effect of a case management order on questions asked of an opposing witness in cross-examination.

[16] To summarize:  the questions that the plaintiff proposes to ask in cross-examination of Dr. Glynn-Morris are proper, and to the extent that they elicit expert opinions, those opinions are proper reply or rebuttal. Such reply or rebuttal opinions elicited in cross-examination are not subject to the notice requirements of Rule 40A, or of the case management orders that were made in this case.

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.

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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