IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Oberholtzer v. Tocher,

 

2018 BCSC 821

Date: 20180426

Docket: M136390

Registry: Vancouver

Between:

Elizabeth Susan Victoria Oberholtzer

Plaintiff

And

Jaimie Patricia Tocher

Defendant

Before: The Honourable Madam Justice W. A. Baker

Oral Reasons for Judgment

Counsel for Plaintiff:

B.A. McIntosh

Counsel for Defendant:

D.R. Eyford, Q.C.

Place and Date of Trial/Hearing:

Vancouver, B.C.

April 26, 2018

Place and Date of Judgment:

Vancouver, B.C.

April 26, 2018


 

[1]             THE COURT:  In this personal injury case, the plaintiff objects to the admissibility of the report of Dr. Trump, an orthopaedic surgeon being proffered by the defendant.  Dr. Trump was asked to provide a diagnosis of the plaintiff and provide a number of ancillary opinions on topics such as relevant conditions, accident or injuries which may affect the injury caused by the accident; the expected duration of the injury; and recommended treatments.

[2]             The plaintiff objects to the report, claiming that it is not necessary or relevant within the tests set out in Maras v. Seemore, 2014 BCSC 1109 quoting from the Supreme Court of Canada in Mohan.  Necessity was described in Maras, in para. 12, as:

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, [1995] 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.

[3]             While the plaintiff initially took issue with the necessity of the report, the plaintiff did concede that, as an orthopaedic surgeon, Dr. Trump is able to give opinion evidence on matters outside the experience of the trial judge.  The plaintiff argued that the report could not be received because of deficiencies in its form and content.

[4]             The plaintiff says 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.

[5]             For the reasons that follow, I do not accept the objection of the plaintiff to the admissibility of Dr. Trump’s report.  While Dr. Trump’s report could have used a different system of headings to be more clear, I did not find it difficult to understand what Dr. Trump relied on in preparing his opinion.  He clearly sets out on p. 2 that he is relying on the history he took, the examination he performed, and the documentation provided to him. From p. 2 to p. 17, he sets out his summaries of the history he took from the plaintiff, the results of the physical examination he undertook, and the medical records he considered relevant to his diagnosis.

[6]             On my review of these summaries, the facts and assumptions set out all clearly relate to the opinion he ultimately gives on pp. 17 to 21.  I do not read pp. 2 to 17 of the report as containing irrelevant information, but rather as highlighting the relevant facts he obtained through his interview, examination, and review of the records.

[7]             Where Dr. Trump comments on facts, he does so in brackets, and so it is clear these are his comments on what he has been told or read or his inferences which he has drawn from the records.  Examples of such comments can be seen at the bottom of p. 4 of his report where notes in brackets that he has not seen a report from Dr. Vaisler, or at p. 11 where he comments in brackets that it was not clear from the records which shoulder was being referred to.

[8]             The report of Dr. Trump is quite different from those criticized by the court in Thibeault v. MacGregor, 2013 BCSC 808 and Maras, which were referred to by the plaintiff.  The reports which were the subject of criticism in those cases included voluminous appendices containing peripheral and unnecessary information, making it difficult to know what the expert relied on in making his opinion.

[9]             I do not accept that there are any defects in the format of Dr. Trump’s report which make it difficult for a reader to know the basis of his opinion.  I find that Dr. Trump’s report is more in line with the report challenged in the case of Wagner v. Newbery, (8 July 2014), New Westminster, M131774 (BCSC) relied upon by the defence.

[10]         In Wagner, the expert summarized facts and findings in an opinion and recommendation section attaching detailed interview notes, results of an exam, and a review of documents with comments.  At para. 55 to 56 of that decision, the court found:

[55]   In his report, Dr. Levin sets out at p. 2 what his opinion is based on, that is, the information in the appendices, and he then summarizes it together with his conclusions in the first sections of the report.  I do not see this as offending the rule requiring the expert to set out the basis of his opinion.  He has in fact set out the basis of his opinion.  His format is very typical of the format used for medical opinions generally, and as I have noted, indeed the same format is used by the plaintiff’s experts.

[56]   In some cases, perhaps, for example, engineering opinions and those involving labour economists, a set of prescribed assumptions can be set out, for example, to assume a vehicle is proceeding at 80 kilometres an hour or assume a 35-year-old plaintiff will have an average expected life span, but in medical cases it is typical to leave the physician to arrive at those foundational facts for himself or herself, as was done here.

[11]         I find that Dr. Trump’s report follows a format determined to be acceptable in Wagner.  I have also considered the expert reports tendered by the plaintiff in this case, and I find the format and outlining of the experts’ factual findings and assumptions to be substantively similar in form to Dr. Trump’s report.  I find that the format of Dr. Trump’s report is acceptable and does not bar its admission into evidence in this trial.

[12]         The plaintiff also objected to the content of Dr. Trump’s report and stated that it was argumentative, attacked the plaintiff’s credibility, advocated for the defence position, was speculative, and contained inadmissible opinion evidence.  Plaintiff’s counsel took me through the report in some detail, describing what he said were objectionable comments.  Plaintiff’s counsel stated that these statements were designed to “make her look stupid” and at one point he described Dr. Trump as “taking the opportunity to slag her”.

[13]         For example, plaintiff’s counsel asked me to conclude that Dr. Trump made objectionable comments attacking the credibility of the plaintiff.  Examples he pointed to included, at p. 3, reports to Dr. Trump from the plaintiff that physical therapy did decrease her pain and then in same paragraph stating that she denied any benefit from physical therapy.  Also at p. 3, Dr. Trump described a recommendation made for muscle scraping and placed that term in italics and within quotations.  At p. 5, Dr. Trump made a statement that her medical history was entirely unremarkable and followed that with a clause “according to her”.  At p. 8, Dr. Trump described various motion assessments he performed, which the plaintiff suggested it is an attack on her credibility, as her range of motion appeared to be greater than what she stated it to be.

[14]         I do not agree that Dr. Trump anywhere makes a negative comment on the plaintiff’s credibility.  He recites her history as she gave it, he recites her statements made in the exam, and sets out his findings on physical examination.  There is nothing objectionable in this. 

[15]         To the extent Dr. Trump recites aspects of her history which appear to be contradictory, such as her statements and his findings on physical examination, I find these not to be comments on her credibility, but rather comments on her observations of her conditions which are relevant to the diagnosis delivered by Dr. Trump.  In this respect the report of Dr. Trump is similar to the report found to be admissible following a similar challenge in the Wagner case at para. 44.

[16]         Throughout the document review section of Dr. Trump’s report, plaintiff’s counsel objected to the fact that certain phrases were bolded, certain phrases were in quotations, and comments were inserted periodically in brackets.  I find nothing objectionable with the treatment by Dr. Trump of medical records.  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, and the bracketed comments reflect Dr. Trump’s own assumptions or clarifications he made to his understanding based on the document review.

[17]         I reviewed all of the Trump report and considered the areas of concern identified by the plaintiff, but I am unable to find that the Trump report is argumentative, speculative or advocating for the defence position.  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.

[18]         In the result, I find the plaintiff’s objections have not been made out and Dr. Trump’s report is admissible in this proceeding.

“Baker J.”