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Failure of Expert to Testify Weakens Personal Injury Claim


Successful ICBC personal injury claims require expert medical opinions, especially  in the Supreme Court of British Columbia.  As we learn in today’s case review, not calling an important medical expert as a witness at trial can led the Court to infer that the evidence of the medical expert would not have assisted the claimant’s  case (Espinoza v. Espinoza,2015 BCSC 762 ). Also, improper distribution of expert reports can diminish the value of other expert opinions.
In this case the injury claimant was the front seat passenger in an SUV driven by his wife when it was involved in a single-vehicle accident. Fault for the accident was admitted by the wife, however, the claimant’s  injuries were hotly contested by the insurance company defending the wife,ICBC.
The claimant was examined by a functional capacity evaluator and decided not to call the evaluator to give evidence and her report was not tendered.  Nevertheless, it had been reviewed by several of the claimant’s doctors in preparing their reports and conducting their assessments.
The judge commented negatively on the claimant’s evidence finding that the claimant had a capacity for revisionism. The claimant alleged significant injury and ongoing disability in the form of chronic pain syndrome, myofascial pain syndrome and thoracic outlet syndrome all caused by the whiplash effect of the accident. Symptoms included headaches, and neck and lower back pain.  As the diagnosis of these injuries depended largely on the history and symptomatology reported by the claimant, his credibility, and that of the experts who testified in the case was of critical importance.  It was by no means a straightforward personal injury case.
Even though the judge did not have the functional evaluation report report he accepted the accuracy of the references to what is in the report, which was provided to other experts for review.  The claimant argued that no adverse inference should be drawn from his failure to call the functional capacity evaluation expert.  His decision was simply based on the absence of any need to add her evidence to the mix and thereby lengthen the trial and increase expense, and the defence could have chosen to call her if they felt it appropriate or helpful to do so. The judge did not agree,

[101]  I disagree.  I accept that a party is not obliged to call every witness, including experts, on his or her witness list.  Whether any inference arises from a decision not to call a particular witness depends entirely on the circumstances.  Here, the witness in question was an expert whose report was relied upon by other experts who testified and were cross-examined before the decision not to call her was announced.  Had the decision been made at the start of the trial, counsel for the defendant might well have conducted her cross-examination of the other experts differently.  By mid-trial, it could not fairly be suggested that the defendant could avoid any prejudice by calling Ms. Craig as a witness for the defence, as opposed to cross-examining her as part of the plaintiff’s case.  As a matter of trial fairness, that would put the defendant in an untenable position.  In these circumstances, it cannot be said that Ms. Craig was “equally available to both parties” (compare Zawadsky v Calimoso, 2011 BCSC 45 at para 149).

[102] Consequently, while counsel for the plaintiff has provided an explanation for deciding not to call the witness other than adversity of opinion, that explanation must be balanced against what is known about the report as indicated above, the fact that other experts relied upon it, and the effect of the decision on trial fairness.  In these circumstances, I infer that Ms. Craig’s evidence would not have assisted the plaintiff’s claim.  See, for instance, Buksh v Miles, 2008 BCCA 318; O’Connell v Yung, 2012 BCCA 57 at para 27; and Warren v Morgan, 2013 BCSC 708 at para 509.

[103]     The practical effect of this, in the particular circumstances of this case, is to detract from the weight I am prepared to give to the evidence of those of the plaintiff’s experts who relied upon her report.  It does not affect the necessity of carefully weighing all of the evidence, both lay and expert, in determining the issues.

In what the judge described as a “rather perplexing case”  the personal injury award was over $176,000, which included $55,000 for pain and suffering.
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A., LL.B.

Tags: Adverse Inference, ICBC Injury claim, Legal Causation, Pain and Suffering, Rules of Evidence

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"Renn A. Holness is a gifted lawyer and author to over 1000 legal blog articles. Married father of two daughters, son of a neurosurgeon and founder of Holness Law Group."

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