No Adverse Inference Drawn After Privilege Claimed Over Expert Report

In Milburn v. Ernst, the Plaintiff was a motorcyclist injured when he was struck from behind. The Plaintiff commenced an ICBC claim for damages, alleging soft tissue injuries that were permanent in nature, while the lawyer for ICBC disputed this, claiming that the symptoms of the Plaintiff had resolved, and that minimal damages were appropriate. The Plaintiff obtained two expert reports, however chose to maintain privilege over them, and as such did not produce them for trial. ICBC’S lawyer argued that the Court should draw an adverse inference, however the Court refused to do so.


[85]         The major point in contention relates to Mr. Milburn’s evidence and contention at trial that he now has chronic or constant pain in his neck, lower back and thoracic spine which continues to plague him to this day and the further contention that this pain will likely continue into the future.


[86]         The defence says that Mr. Milburn’s evidence is contradictory, principally considering what he has reported to Drs. Behroozi, Badii and Kendall who all met with and examined Mr. Milburn around the same time in March 2010. Mr. Milburn told Dr. Behroozi that he had pain in his upper and lower back most of the time, with exacerbations intermittently. He told Dr. Badii that he had lower back pain that was no longer constant, pain in his buttocks that was intermittent, left upper back pain that was fairly constant and neck pain that was intermittent. Finally, he told Dr. Kendall that he had constant low grade pain in his upper back and mild to debilitating pain in his lower back. The defence says that there is no way to reconcile Mr. Milburn’s own evidence with these different reports over such a short time period, let alone reconcile it with his current evidence.


[87]         The defence also points out that in Mr. Milburn’s list of documents, he listed two privileged medical-legal reports dated June 11 and 12, 2010. These were commissioned by Mr. Milburn’s counsel but were never served or presented at trial. The defence submits that an adverse inference should be drawn that the evidence in those reports would be contrary to Mr. Milburn’s case.


[88]         In my view, this is not an appropriate case to conclude that an adverse inference should be drawn. There is no evidence that the authors of those reports even saw Mr. Milburn …… Mr. Milburn’s counsel has advised that this evidence was not submitted because it was of no assistance to the court, not that it was adverse to the current medical evidence. In fact, there may have been any number of reasons why the reports were not submitted and while it is possible that they contradicted the reports of Drs. Behroozi and Badii either in whole or in part, it is equally possible that they did not materially add to those reports. As was noted by the court in Bronson at para. 329, an adverse inference can only be drawn if such testimony would be superiorin respect of the facts to be proved.


[89]         Counsel for Mr. Milburn is entitled to prepare his case, and obtain whatever expert reports that might assist in advancing his case. To suggest that any decision not to use an unidentified expert report leads to an adverse inference in respect of any case is going well beyond the general proposition relating to adverse inferences. The disclosure process is intended to provide opposing counsel with the means of testing the claim of privilege, not to allow such claims to be made that an adverse inference should be drawn in these circumstances.

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