Court Highly Critical Of Orthopaedic Surgeon Testifying On Behalf Of Defendant

The Court does not approve of situations where an expert, whether in the form of an expert report or expert testimony in court, is seen as advocating, rather than being impartial. When this occurs, little weight is given to the expert’s evidence, and the evidence can even be rejected outright.

 

Rule 11-2 of the British Columbia Supreme Court Civil Rules deals with the issue of expert advocacy.

 

In Mattice v. Kirby, the Plaintiff was injured in a rear end motor vehicle accident, and consequently brought an ICBC claim for damages for pain and suffering, loss of wages, diminished earning capacity, loss of homemaking capacity, loss of future care, and out of pocket expenses (special damages). Liability was admitted by ICBC’S lawyer. The Plaintiff was successful on all claimed heads of damages. The Court was highly critical of an orthopedic surgeon who testified on behalf of the Defendant.

 

[82] In cross-examination Dr. Christian stated that there was no reason at the time for him to be having shoulder pain, that any fatigue being experienced by Mr. Mattice was “absolutely irrelevant”, that there was no reason for Mr. Mattice not to improve, and that there was no reason for Mr. Mattice to have a problem with his shoulder. He stated that, generally, in his opinion, Mr. Mattice should have been over any injuries from the 2009 accident long before the visit to Dr. Christian.

 

[83] In conclusion on Dr. Christian’s evidence and opinions, I have no hesitation in finding that his research was incomplete, that he was predisposed to a finding that Mr. Mattice’s injuries were either exaggerated or did not exist, and that by limiting his opinions to musculoskeletal injuries, he was not qualified to opine on the injuries which Mr. Mattice claimed to have suffered in the 2009 accident. As a result, I find the opinions and evidence of Dr. Christian to be of little or no probative value and I am left with the medical-legal opinions of the plaintiff’s expert and all other evidence to make a determination regarding Mr. Mattice’s injuries.

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