Court says expert evidence not required to establish liability

In reasons for judgment released today, the court in Truax v. Hryb, 2017 BCSC 1052, made some helpful comments on the issue of the necessity of calling expert evidence.  In Truax, the defence argued that the plaintiff had failed to establish liability for the crash because he had failed to call a collision reconstruction expert.  Mr. Justice Dley dismissed this argument saying:

[20]         The defence argues that the failure by the plaintiff to introduce engineering evidence of the collision is “telling” and that an inference should be drawn against Mr. Truax. I agree that the absence of engineering evidence is telling - there is no need to call such expert evidence when common sense prevails.

[21]         Litigation has become a costly venture; oftentimes unnecessarily so. Litigants are far too quick to secure expert testimony when it is not required. Perhaps that is out of an abundance of caution and concern that the absence of expert evidence will be a failing of counsel.

[22]         Each case should be considered on its unique circumstances. It is trite to say that it is not necessary to call expert evidence on each issue. Expert testimony should be restricted to those matters where it would actually assist the court because the evidence is so specialized, scientific or complex. Expert evidence should not be viewed as a default or automatic step in litigation strategy.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/10/2017BCSC1052.htm

Court calls plaintiff's expert an "undisclosed salesman"; says evidence showed "a shocking lack of candour"

In reasons for judgment released today, the court in Ma v. Haniak, 2017 BCSC 549, severely criticized the plaintiff's expert Occupational Therapist calling him an "undisclosed salesman" and saying his report showed "a shocking lack of candour".  Mr. Justice Armstrong wrote:

[179]     Mr. McNeil is an occupational therapist and certified work capacity evaluator. He and Kevin Turnbull’s opinions form the basis for Ms. Ma’s estimate for future care costs in the amount of $390,065.

...

[183]     I consider Mr. McNeil's failure to disclose the fact that he is the principal of Biosyn and that he was an inventor of FAB to represent a shocking lack of candour. As he has testified in the courts on numerous occasions, he is well aware that the duty of an expert is to assist the court with an independent and objective opinion on a particular issue. To withhold such relevant information misleads the court and, as I have no choice but to reject all of his written and verbal evidence, constitutes a substantial waste of time. It is impossible to parse out Mr. McNeil’s evidence as a qualified expert from that as an undisclosed salesman for Biosyn.

...

[199]     Overall, I have little confidence in Mr. McNeil’s opinions. He candidly acknowledged he could not measure or verify Ms. Ma’s subjective claims of disabling pain. His assessment was performed five years before trial and one-and-a-half years before Mr. Enright’s assessment. Additionally, Mr. McNeil acknowledged several shortcomings in the preparation and final content of his report.

[200]     Mr. McNeil has an unenviable record in this Court as highlighted by the authorities cited by the defendants. While those cases do not render his report unreliable, the errors in his report, the differences between his and Mr. Enright’s findings and the carelessness with which he prepared his opinion result in my finding that I can give little weight to his views.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/05/2017BCSC0549.htm

Plaintiff ordered to attend IME with defence psychiatrist

In reasons for judgment released today, the court in Huang v. Bertelsen, 2015 BCSC 2650, ordered the plaintiff to attend an independent medical examination with a defence psychiatrist.  The plaintiff in Huang objected to the attendance on the basis that she had a trip booked to Las Vegas that conflicted with the examination date.   The court was not impressed with this argument, as the plaintiff had prior knowledge the IME would take place on that day.  In ordering the plaintiff’s attendance (and awarding the defence its costs), Madam Justice Fenlon said as follows:

[6]             The only issue is the convenience of the plaintiff. She says she will be greatly inconvenienced by having to attend the IME. She is starting a new business, a store which sells items to adults. It has been described as an exotic or erotic boutique, and she says that in order to get back on her feet (and although the words were not used also in order to mitigate her losses), she needs to attend this conference in order to make contacts to figure out how best to run this kind of business and to succeed. She says that it will help with her depression to get her boutique underway, and this conference is going to help her do that.

[7]             The convenience of a plaintiff is one of the factors the court considers in determining whether an order should be made directing a plaintiff to attend an IME. In this case the defendants have already accommodated the plaintiff and her objections once. This is a situation in which the plaintiff, faced with knowledge of the date for the IME, subsequently booked flights and hotels in disregard for the commitment she already had to see a busy specialist.

[8]             The competing interests I must balance on this application are the defendants' right to have a level playing field for trial, the right to have an independent medical specialist, a psychiatrist, examine the plaintiff; and on the other hand the plaintiff's desire to attend a conference to help her with her business.

[9]             I conclude that my discretion should be exercised to compel the plaintiff to attend the IME. This is not a situation in which she will have no other opportunity to attend such a conference. In fact, she attended one in September 2014. She will be attending another one from January 14 to 17 in Las Vegas. This would be her third such conference in the space of a number of months. Although they are described as rare, the sheer number that have occurred in the last four months suggests that they are not quite as rare as the plaintiff is suggesting them to be.

[12]         The defendants have been successful on this application. In my view the application should not have been necessary. The defendants are entitled to their costs of the application at Scale B. It is probably clear but that is not forthwith. That is at the end of the proceeding.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/15/26/2015BCSC2650.htm

Court dismisses defence application for Independent Medical Examination with Psychiatrist

In reasons released earlier today the court in Tournier v. Ruckle, 2017 BCSC 308 dismissed the defendant’s application to compel the plaintiff to attend an independent medical examination with a Psychiatrist.  In Tournier, the defence applied for the IME for the purpose of responding to an expert report of the plaintiff’s psychiatrist.  The application was made after the 84-day service deadline.  The defence claimed they were taken by surprise when the plaintiff served a report shortly before the deadline which diagnosed the plaintiff with PTSD.  In finding that the defence should have been aware that a PTSD diagnosis was a live possibility, and thereby dismissing the application, Master Muir said as follows:

[1]            THE COURT:  This is an application by the defendant for an independent medical examination of the plaintiff by Dr. Ursula Gutteridge, a psychiatrist, for the purpose of responding to the expert’s reports of the plaintiff’s psychiatrist, Dr. Christopher Babbage.

...

[20]        The plaintiff submits that this is just another classic example of the defendant failing to obtain any evidence on psychiatric issues when those were clearly apparent and trying to shoehorn in an opinion after the 84‑day deadline is passed.

[21]        I just pause to reflect on the number of these types of applications. They are frequent. The court in Timar, in particular, held that rebuttal reports should be rare and rebuttal reports needing an independent medical examination should be rarer still. What seems to be an issue, and I am not saying it necessarily is the case here, is that defendants seem to want to have the plaintiff’s primary expert’s reports in their hands in order to know exactly what they need to address before they decide whether to obtain an expert’s opinion, but that is not the rule.

[22]        As noted in Timar, both parties have an obligation to turn their mind to the conditions of the plaintiff that may require expert evidence prior to the 84‑day deadline. There is prejudice to the plaintiff in delay in producing reports. The plaintiff submits that the report of Dr. Gutteridge will, of necessity and obviously, be essentially the same as a primary expert’s report, to which they will have no opportunity to respond.

[25]        Counsel for the plaintiff was operating on the exact same playing field as was counsel for the defendant. As was submitted by counsel for the plaintiff, where the defendant is alerted that the plaintiff has significant mental‑health concerns that impact on the issues in the litigation, as in this case, and the defendant decides that an independent primary expert’s report is not necessary, that should not be laid at the feet of the plaintiff unless there is significant surprise.

[26]        In my view, the diagnosis of PTSD here is not sufficiently out of the realm of the symptoms and diagnoses that had been previously revealed to the defendant that this is such a case.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/03/2017BCSC0308.htm

Court criticizes defence Orthopedic Surgeon as being "either deliberately misleading or grossly careless"

In reasons for judgment released December 22, 2016, the court in Kim v. Lin, 2016 BCSC 2405 criticized the evidence of the defence Orthopedic Surgeon Dr. Grypma, calling his testimony “disingenuous” and describing his report as “either deliberately misleading or grossly careless”.  Mr. Justice Sewell wrote:

[11]        With the exception of Dr. Grypma, I found all of the witnesses who testified or provided reports to be credible and reliable witnesses. Unless I specifically indicate otherwise, I accept their evidence.

...

[117]     There is a fundamental disagreement between Dr. Krassioukov and Dr. Grypma over the cause of Ms. Kim’s complaints. Dr. Krassioukov’s opinion is that the SI joint deterioration noted on the CT scan and MRI is the result of trauma suffered in the Accident. Dr. Grypma is of the opinion that the SI deterioration is minor and is the result of a pre-existing condition unrelated to the Accident.

[118]     I prefer Dr. Krassioukov’s opinion on this issue to that of Dr. Grypma. I appreciate that Dr. Grypma is an orthopedic surgeon, and as such his opinion would ordinarily be accorded considerable weight. However, after reviewing his opinions in the context of the whole of the evidence and observing him under cross-examination, I have concluded that he failed to present balanced and impartial evidence in this case.

[123]     ... I find that Dr. Grypma was being disingenuous when he suggested that Dr. Budzianowska-Kwiatkowski’s report was ambiguous and that he was being either deliberately misleading or grossly careless in his reports when he used this passage to suggest that Ms. Kim had recovered from her injuries by October 2008.

...

[127]     For all of the foregoing reasons, I can give no weight to Dr. Grypma’s opinions.

The full text of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/16/24/2016BCSC2405.htm

 

Court Criticizes ICBC For Use of Orthopaedic Surgeon in Soft Tissue Case

In the recent decision of Khudabux v. McClary, 2016 BCSC 1886, the court criticized ICBC’s reliance on the opinion of an Orthopaedic Surgeon in a Soft Tissue Case, preferring the evidence of a Physiatrist.  Using somewhat colourful language, the court said:

[91]      The expert medical evidence presented at this trial brought into focus a difficulty that not infrequently arises when a defendant pursues the strategy of tendering the opinion of an orthopaedic surgeon to rebut allegations of soft tissue injury. Of course, there may be situations in which such a specialist feels able to offer opinion evidence that sheds light on the nature and scope of such complaints. But it is also the case that a clash between experts pitting an orthopaedic surgeon against a physiatrist, specializing in rehabilitation medicine – or even, as in the present case, against a family physician – can possibly leave counsel in the position of the hoodlum in the film The Untouchables, at the point when he realizes too late that he has brought a knife to a gunfight.

[92]      There is a tendency common to many orthopaedic surgeons who provide expert opinion reports in soft tissue injury cases before this court to express their opinions without qualification – specifically, without acknowledging the extent to which their opinions are shaped by or restricted to the narrow field of their own expertise. In the result, many such reports come before this court that, in substance, say “I have examined this patient, and nothing is wrong with them,” when what is really meant is, “I have examined this patient, and I am unable to diagnose any orthopaedic injury”. Expert witnesses who provide opinions in such stark terms without explicitly stating the limitations of their opinion may, if their opinions contrast with complaints of pain and suffering that are found to be genuine, and are at odds with contrary opinion evidence from another medical expert, risk creating confusion. They may also leave themselves vulnerable to a finding of bias if the unstated limitations of their opinions are not drawn out at trial.

The full text of the decision can be found here: http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc1886/2016bcsc1886.html

Court finds that $22,000 Cost for Expert Report was "Reasonable"

In the recent decision of Bokova v. Gertsoyg & Company, 2016 BCSC 2297, the court found that the $21,984.48 cost for an expert report of a Physiatrist was a “reasonably necessary and proper” disbursement.  The court said:

[5]             On this review, the client challenges both the fees charged and the disbursements claimed. The client is particularly distressed by the costs of a physiatrist’s report by Dr. Michael Vondette, which totalled $21,984.48, and with the contents of that report. The contingency agreement itself is not challenged.

[37]         The client had the option of having the cost of Dr. Vondette’s report assessed before a registrar pursuant to Supreme Court Civil Rule 14-1(5), but chose to accept the defendant’s partial offer towards the disbursements incurred. That was her choice. However, it does not bind the lawyer. Within this proceeding, the appropriateness of the cost of Dr. Vondette’s report must be reviewed pursuant to the provisions of the LPA. I find the lawyer’s disbursements, including the report of Dr. Vondette, to have been authorized, reasonably necessary and proper to the conduct of the proceeding to which they relate in accordance with s. 71(2) (a) and (b) of the LPA. Accordingly, the lawyer’s disbursements, including the report of Dr. Vondette, are allowed in full.

The full text of the decision can be found here: http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc2297/2016bcsc2297.html?resultIndex=1