This is a chambers application brought by the Plaintiff to oppose the admissibility of the defence medical-legal report of Dr. Trump, an orthopaedic surgeon. The case is referenced as Oberholtzer v. Tocher, 2018 BCSC 821.
- Report is not necessary
To determine the necessity of a report, we need to interpret the word “necessity” which was outlined in Maras v. Seemore, 2014 BCSC 1109 quoting from the Supreme Court of Canada in Mohan: “To be necessary, expert evidence must likely be outside the experience and knowledge of a judge or jury, and must be assessed in light of its potential to distort the fact-finding process: Mohan at 23-25; ter Neuzen v. Korn,  3 S.C.R. 674 at para. 55. As well, the evidence must be of assistance to the trier of fact: Mohan at 34-37.”
- The report:
- fails to clearly set out the facts and assumptions relied on
- fails to clearly set out the opinion given
- includes improper commentary on the credibility of the plaintiff
- is argumentative and speculative, and
- is more akin to the work product of a confidential advisor than an independent expert.
Court’s Analysis and Conclusion
- An orthopaedic surgeon’s evidence will provide expert opinion outside the knowledge of the trial Judge
- headings can be used in the report to allow for a more clear report (but this is not mandatory)
- the facts and assumptions set out all clearly relate to the opinion
- irrelevant information should be avoided (this was not the case in this specific report)
- relevant facts the expert obtained through his interview, examination, and review of the records were highlighted in this report. This is acceptable.
- where the expert comments on the facts, he does so in brackets. The Court indicates that it is clear these are the expert’s comments on what he has been told or read or his inferences which he has drawn from the records.
- this specific report did not contain voluminous appendices containing peripheral and unnecessary information, making it difficult to know what the expert relied on in making his opinion.
- the format of the report was appropriate
- it was not difficult to determine the basis of the opinion
- the Court did not agree that the report contained objectionable comments attacking the credibility of the plaintiff.
- the report does recite the Plaintiff’s history as she gave it, he recites her statements made in the exam, and sets out his findings on physical examination of which there are contradictions, and this is acceptable format
- identifying the Plaintiff’s observations of her conditions is appropriate as these are relevant to the diagnosis
- the Court did not see anything objectionable with certain phrases being bolded by the expert, certain phrases being in quotations, or comments being inserted periodically in brackets
- the Court alluded to common sense “I find that common sense is to be applied in understanding the report, and common sense would indicate to me that the bolded phrases are points Dr. Trump considered important in coming to his opinion.”
- the phrases in quotations are taken directly from the records
- the bracketed comments reflect the expert’s own assumptions or clarifications he made to his understanding based on the document review.
The Court concluded that the expert report of the defence was not argumentative, speculative or advocating for the defence position.
Although the Plaintiff raised numerous arguments to persuade the Court that the report should be deemed inadmissible, the Court disagreed with the Plaintiff’s position and had this to say:
“While Dr. Trump may come to a different diagnosis than the plaintiff’s experts, this is not evidence of impermissible advocacy. I do not find the report to be speculative or contain impermissible opinions.”
The report was therefore deemed admissible.
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