Dr. Dommisse Evidence Rejected For Having No Foundation For His Expert Opinion

In Paller v. Regan, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for several heads of damages, including pain and suffering, loss of income, diminished earning capacity, special damages, and out of pocket expenses. ICBC’S lawyer did not dispute liability, but did deny that the Plaintiff suffered any injuries as a result of the car accident. The defence relied on the report of Dr. Dommisse, an orthopaedic surgeon, who never personally examined the Plaintiff, and who relied on the assumption that the collision was a low speed one of only 5 km/h. Dr. Dommisse said that it was unlikely that the Plaintiff was injured in the car accident. The Court rejected his evidence, ruling that the foundation for such an opinion had not been proven.

 

[25] The only medical opinion evidence tendered by the defence is a report of Dr. Dommisse, an orthopedic surgeon. He did not examine Mr. Paller, but reviewed medical records, imaging, and the reports of Drs. Whittington and Chu. Dr. Dommisse opined that it is unlikely that the accident caused a disc tear or herniation. He stated in his written report:

As outlined above, I have not had the benefit of examining Mr. Paller. I am therefore unable to fully comment on Dr. Chu’s report. In my opinion, however, it is unlikely that Mr. Paller suffered a disc tear and/or disc protrusion at L4/5 in a motor vehicle accident of this magnitude.

In my clinical experience, I have seen approximately four lumbar disc herniations as a result of motor vehicle accidents. These accidents were higher velocity collisions, two of which occurred when the driver drove head on into a house.

[26] Dr. Dommisse assumed that the speed of Mr. Regan’s vehicle was 5 km/h, a number provided by Mr. Regan in a statement given to ICBC shortly after the accident. In cross-examination Mr. Regan was unable to be precise about his speed. He agreed that he was accelerating on to the street, that his speed was moderate, and that he did not brake before the collision.

[27] I conclude that the opinions of Dr. Chu and Dr. Whittington are to be preferred to that of Dr. Dommisse. As he acknowledged, Dr. Dommisse’s opinion was restricted by lack of an examination of the plaintiff. Further, it was largely anecdotal and was based on a fact, the speed of Mr. Regan’s vehicle at 5 km/h, that was not proved at trial.

[28] Dr. Jung is a psychologist who has treated Mr. Paller on two occasions. He provided an opinion that Mr. Paller is suffering from Anxiety Disorder, NOS, as defined in the DSM 4, the Diagnostic and Statistical Manual of Mental Disorders. Dr. Jung is of the opinion that the anxiety developed as a result of a reaction to chronic injury and pain. I accept his opinion.

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