Little Weight Attributed To Medical Report Where Plaintiff Not Personally Examined

Although the Court will normally allow an expert report to be admitted where the claimant has not been personally examined by the expert, usually little weight will be given to such a report.

 

In Johal v. Meyede, the Plaintiff was injured in a rear end collision motor vehicle accident, and subsequently brought an ICBC claim for damages for pain and suffering, loss of income, diminished earning capacity, out of pocket expenses, and cost of future care. Liability was admitted by the Defendants. The Plaintiff suffered soft tissue injuries, which, at the time of trial approximately three years after the accident, were expected to continue indefinitely. The Plaintiff was awarded $85,000.00 for pain and suffering. ICBC’S lawyer obtained a responding medical report from a neurologist, who had not personally examined the Plaintiff before preparing his expert report. As a result, the Court attributed less weight to this report than that of the Plaintiff‘ expert.

 

[47] The defendants also called Dr. F. Kemble as an expert witness. He had been retained to provide a responding medical-legal report. He was qualified, without objection, to provide expert evidence with respect to neurology. Dr. Kemble concluded his October 22, 2013 report saying:

 

I do not feel that there is any indication for any thoracic outlet surgery. Ultimately, the probability is that she will be able to work full time although she will probably have minor difficulty in terms of using her arm and moving her neck. I am optimistic, that with the measures outlined by Dr. Travlos and Dr. Caillier, that the pain will significantly reduce.

 

[48] For two reasons, I have given less weight to Dr. Kemble’s report and testimony than the other medical experts. First, he did not meet or examine the plaintiff. Second, in cross-examination, Dr. Kemble conceded that the basis for his report could be incorrect to the extent it was based on the assumption that the plaintiff’s symptoms would become intermittent.

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