In Wohlleben v. Dernisky, the Plaintiff was injured in a motor vehicle accident, and subsequently brought an ICBC claim for damages for pain an suffering, as well as various other types of damages.

 

Prior to trial, ICBC’S lawyer brought an application to compel the Plaintiff to attend an independent medical examination with a neurologist of the Defendant’s choosing. Counsel for the Plaintiff had agreed that an examination by a neurologist was justified, but objected to the Plaintiff being examined by the neurologist chosen by ICBC’S lawyer.

 

The main reason for the objection by Plaintiff’s counsel was that there had been previous case law that had rejected the neurologist’s expert opinion. This included the neurologist making errors in recording what the Plaintiff had reported to him about the accident ; not making reference to a concussion diagnosis in other medical documentation ; stating that the Plaintiff’s post-accident gap in memory was extremely brief, when the Court had ruled this not to be the case ; and, a ruling by a previous judge that the neurologist in question was more of an advocate than an independent expert.

 

The Court in the present case noted, however, that previous cases cited in the Plaintiff’s Affidavit did not include other cases where the expert evidence of the neurologist in question was actually accepted by the Court.

 

The Court would go on to grant the Defendant’s application to have the Plaintiff be examined by a neurologist of their choosing, commenting that :

 

[10]         Here, the plaintiff, in my view, has not demonstrated by a preponderance of evidence that there are sufficient grounds to justify that I should not exercise my discretion in favour of the order that Dr. Dost conduct the examination.

 

[13]         It is not the law that the plaintiff gets to choose the expert to examine him or her: Sinclair (para. 15). The names of alternatives would only come into play where the plaintiff demonstrates, by a preponderance of evidence, sufficient grounds to justify the court in concluding that its discretion should not be exercised in favour of the appointment of the defendant’s nominee: Sinclair (paras. 16 and 17). Questions of fairness, partiality, credibility, and objectivity of a physician are matters for the trial judge, not the motions judge or master on an application: Sinclair (para. 21). Further, at para. 22 of Sinclair:

 

[22]      … In my view, for the Plaintiff to succeed, there must be evidence of real or effective inappropriate conduct on the part of the nominee doctor, and not simply the whim or idiosyncrasies of the Plaintiff or similar views of his or her Counsel. …

 

[14]         There is no evidence of inappropriate conduct on the part of Dr. Dost. The views of the plaintiff, in my view, do not reasonably support the opposition to Dr. Dost. For these reasons, I grant the order requiring the plaintiff to attend the examination by Dr. Dost.

 

In Johal v. Radek, the Plaintiff was injured in a motor vehicle accident, and consequently sued for damages for pain and suffering, as well as various other types of damages. Liability was admitted by ICBC’S lawyer on behalf of the Defendant.

 

Shortly before trial, an application was brought by ICBC’S lawyer for an order that one of the Defendant’s expert witnesses be examined under oath before a court reporter by video deposition shortly before trial, and further that the examination be available as evidence at trial.

 

After counsel for the Plaintiff was served with the expert report, she advised ICBC’S lawyer that the expert would be required for cross-examination at trial. At a later point in time, ICBC’S lawyer advised counsel for the Plaintiff that a pre-trial deposition would be required, as the expert was going to be out of the country during the week of the trial.

 

The Court noted that there was no evidence whatsoever from the expert himself in support of the application, and that the only evidence was from a paralegal, which the Court regarded as triple hearsay.

 

Counsel for the Plaintiff opposed the application for the pre-trial deposition, arguing that the most just solution would be for the expert to attend the trial by video conference. Counsel for the Plaintiff also argued that a disadvantage to the Plaintiff should a video deposition be ordered would be that if something arose at trial that was not originally contemplated, then there would be no opportunity for Plaintiff’s counsel to put these matters to the expert.

 

The Court would eventually dismiss the application of ICBC’S lawyer for an order for a pre-trial video deposition, noting that the potential prejudice to the Plaintiff should something arise at trial that had not been originally envisaged.

 

[21] The dangers of video depositions have been referred to in many cases, one of such is Byer v. Mills, 2011 BCSC 158. The court commented on the use of video deposition at trial and those comments have been reiterated in various other cases including in Campbell at paras. 53 to 55 where the court says:

 

[53] The comments, while obiter, were further adopted by the court in Seguin v. Stack, (11 March, 2011) Vancouver No. M095847 (B.C.S.C.) in which Master Baker dismissed an application to permit a medical doctor to provide evidence by way of deposition as the doctor was already committed to surgical and clinical activities (along with other trials) during the particular week of trial. As Master Baker observed, the doctor was advised of the trial dates so any conflict in that regard must have been the fault of his office …

 

[23] Counsel for the plaintiff pressed upon me that there are disadvantages in that if there are eventualities that arise at the trial that are not contemplated or not considered in advance of the video deposition of the proposed defence expert, that there will be no opportunity to put those matters to Dr. Rickards, and the plaintiff potentially will be at a disadvantage in that regard.

 

[24] The defendants argue that any such disadvantage can be taken into consideration by arguments as to the weight of the expert’s evidence at the trial. I am not persuaded that that overcomes, first of all, the onus to convince me that a video conference would not be the appropriate avenue here and, secondly, the potential detriment to the plaintiff if something arose that was not contemplated.

In Odian v. Carriere, the Plaintiff was injured in a rear end motor vehicle accident, and brought an ICBC claim for her injuries. By the time of trial, over six years after the accident, the Plaintiff continued to suffer from neck pain and headaches. Liability was admitted by ICBC’S lawyer. Prior to trial, the Plaintiff underwent a functional capacity evaluation by one of ICBC’S experts.

 

At trial, the occupational therapist who conducted the functional capacity evaluation testified that a relatively new kinesiology program would likely be helpful for the Plaintiff. The Court found such optimism to not be well based, as there was nothing in the report to justify such an opinion. The Court was also concerned about the objectivity of the evidence given by the occupational therapist, as she was at times evasive and non-responsive during cross examination on a rebuttal report that she had prepared. The Court would conclude that the occupational therapist was an advocate for the defence.

 

Courts are critical when an expert witness “crosses the line” from impartial opinion into advocacy. Courts expect an expert witness to assist the court, and to not be an advocate for any party. Expert reports must be prepared in conformity with the duty to assist the Court, and oral evidence must also conform with such a duty.

 

The Court preferred the evidence of the experts who testified that the Plaintiff’s condition was chronic, in particular the evidence of Dr. Robinson, a headache specialist.

 

[47]         Ms. Phillips testified that “a relatively new” kinesiology program would likely be beneficial for Ms. Odian. Ms. Phillips testified that it would take three to four weeks of participation in the program to determine if Ms. Odian would benefit. Ms. Phillips conceded that it would be less likely for benefits if the patient has had a long history of symptomology.

 

[48]         Ms. Phillips’ optimism that the new kinesiology program will likely improve Ms. Odian’s condition is not well based. There is no history or details that would justify her opinion. Ms. Phillips’ initial opinion as set out above was far less certain than what she said at trial.

 

[49]         I am concerned about the objectivity of Ms. Phillips’ opinion.

 

[50]         Ms. Phillips’ testimony was challenged particularly in light of a rebuttal report she had prepared. During her cross examination, Ms. Phillips was at times evasive and non-responsive. The tenor of the rebuttal report, coupled with her testimony and demeanor in court, was indicative of a witness who had become an advocate for the defence.

In Preston v. Kontzamanis, the Plaintiff was injured in a motor vehicle accident, and consequently commenced legal proceedings against the Defendant. Liability was admitted by ICBC’S lawyer.

 

The Plaintiff alleged he suffered from chronic lower back pain, and that his capacity to work was greatly affected by the injuries he sustained in the accident. Several expert reports were tendered at trial on behalf of the Plaintiff. ICBC’S lawyer also tendered an expert report from Dr. Boyle, who acknowledged that he did not meet with, examine, or interview the Plaintiff. Rather, he simply reviewed the documentation provided to him by ICBC’S lawyer, which primarily included clinical records of other medical practitioners.

 

The Court, in keeping in line with previous decisions, was harshly critical of this practice of providing an expert report where the Plaintiff was not personally examined by the expert, stating that such an opinion is based on hearsay. Further, the Court noted that the case at bar dealt with credibility and exaggeration claims from ICBC’S lawyer respecting the Plaintiff, so the report tendered would be given no weight at all.

 

[129] This is a process that is unlikely to assist the court in any material way. The first concession is invariably, and was in this case, that interviewing, examining and getting a personal history is important to providing an accurate and complete assessment.

 

[132] To these I would add my own comments. Where an expert chooses to prepare a report as he did here, expecting this court to accept and rely on it. He is presenting a report in which he effectively asserts that he accepts as true and accurate the factual base on which his opinions are based.

 

[133] Where he does so without seeing, examining or taking a personal history he chooses to offer his opinion on the basis of hearsay. Worse still he chooses to offer it on the basis of his interpretation of hearsay recorded by others.

 

[137] In my view, Dr. Boyle’s report should be afforded the weight it deserves and in this case where credibility and exaggeration are both asserted against the plaintiff by the defendant that is no weight at all.

In Pausch v. Vancouver Coastal Health Authority, the Plaintiff tendered an expert qualified to give opinion evidence as to the standard of care which is required from an MRI technologist. Counsel for the Defendant failed to raise an objection in accordance with the timelines as stipulated in Rule 11-6(10) of the British Columbia Supreme Court Civil Rules. Counsel for the Defendant argued that this rule did not apply to expert qualifications, but rather only applied to objections to the contents of the expert report, however this argument was rejected by the Court.

 

[14] In my view, no difference can be drawn between an objection to the admissibility of the report, and an objection to an expert’s qualification with regard to Rule 11-6(10). In order to be admissible, any opinion evidence must come from a properly qualified expert. Qualification is a prerequisite to admissibility.

 

[15] The wording of Rule 11-6(10) and (11) is mandatory. In my view, the phrase “objection to the admissibility of the expert’s evidence” necessarily includes objections based on inadequate qualifications of the expert. Indeed, the expert’s qualifications are required to form part of his or her report: Rule 11-6(1)(a) and (b). I find therefore, that the defendant here ought to have given notice of the objections to the expert’s qualifications.

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.

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.

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.

In Sekihara v. Gill, the Plaintiff was injured in a motor vehicle collision, and consequently brought an ICBC claim for damages for pain and suffering, past wage loss and loss of opportunity, diminished earning capacity, an in trust claim, loss of past and future housekeeping capacity, out of pocket expenses, and costs of future care. The Plaintiff‘s main injury was a L4/5 disc injury. ICBC’S lawyer denied liability, however the Defendant was found to be 100% responsible for the crash. One of the defence experts testified that some of the Plaintiff‘s persisting problems were not caused by the collision, but by other factors. The Court rejected these submissions, and awarded $130,000 for pain and suffering. The Court was critical of the aforementioned defence expert for many reasons, including not having an open mind.

 

[160] On behalf of the plaintiff, it is submitted that Dr. Grypma’s opinion should be given no weight for the following reasons:

1. He took what can only be described as a cursory history from Ms. Sekihara;

2. he made a number of editorial comments in the section titled “medical records review” which were not identified as being his own comments;

3. in that same section he left out salient facts which tended to support Ms. Sekihara’s complaints;

4. also in that section, if he was unable to read handwriting, he simply left those sections out of his summary without stating that he had done so; and

5. he was evasive at times in his oral testimony.

[161] I agree with the plaintiff’s submissions regarding Dr. Grypma. In his evidence, Dr. Grypma does not appear to have demonstrated an open mind in his examination of and conclusions regarding Ms. Sekihara or to have taken into account the complete medical history.

[162] Most importantly, Dr. Grypma’s opinion that the enduring complaints of back pain are related to any of the four unrelated conditions is inconsistent with the evidence of Ms. Sekihara and of the objective evidence of the tear of the annulus fibrosis.

 

 

In Smith v. Rautenberg, the Plaintiff was injured in a motor vehicle accident, and subsequently brought an ICBC claim for pain and suffering for various injuries, as well as other forms of damages. An issue arose as to the production of raw test data of the Plaintiff‘s neuropsychologist, after the expert report had been served. Counsel for the Plaintiff wished for there to be a restriction on the production of such documentation in that it would go directly to a registered psychologist, rather than ICBC’S lawyer. Counsel for the Plaintiff also argued that the raw test data was privileged. ICBC’S lawyer argued that the raw test data was relevant and should be disclosed. The Court ordered the raw test data to be disclosed to defence counsel.

[32] As the report has been served, no issue of solicitor/client privilege attaches.

 

[33] Counsel for the applicant defendant correctly submits that there is nothing in the Code of Conduct to substantiate the apparent position of the College Psychologists of BC that test material cannot be released except to another psychologist or psychological service provider in another jurisdiction. He is correct. That is not what the Code of Conduct states.

 

[34] In making my decision, I agree with what was written by Southin J.A., namely that when an expert in one field in possession of documents says that someone from a different discipline is not competent to understand his work, that the court is to be slow to overrule his judgment. That is a very different thing from saying that the documentation could not be produced to counsel for the party seeking production. If that party choses to have the documents interpreted by someone not competent to understand them, lack of competence will be readily available to a trial judge and will work against the party who conducts litigation in that way.

 

[35] I also respectfully agree that courts must not run rough shod over those who are not parties to the proceedings. That is why the Rules require delivery of notices of applications to non-parties from whom documents are sought.

 

[36] The evidence before Master Horn in Davies was that there was an ethical restriction placed on the neuropsychologist to prevent disclosure. The actual evidence that was presented in that case is not before me.

 

[37] I had evidence before me of the current Code of Conduct. So long as Dr. Pirolli complies with the Code of Conduct, and in particular that portion of the Code of Conduct set out in subparagraph 1.2, reproduced above in para. 28, her ethical requirements are met.

 

[38] The other concerns raised by the plaintiff are dealt with by the