IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Campbell v. Sveinungsen,
	2008 BCSC 381

Date: 20080131

Docket: S079069

Registry: New Westminster

Between:

Brenda Campbell

Plaintiff

And:

Lars Sveinungsen and Progressive Fence Installation Ltd.

Defendants

Warning:  Names of Jurors May Not Be Transcribed

Without an Order of the Court

Before: The Honourable Madam Justice Martinson

Oral Ruling on Admissibility of Dr. Levin’s Report

January 31, 2008

Counsel for the Plaintiff	C.R. Temple
Counsel for the Defendants	L.G. Harris
Place of Trial:	Vancouver, B.C.

[1]                THE COURT:  This is a ruling on the admissibility of the medical legal report of Dr. Levin, a psychiatrist.  Ms. Campbell initially applied to have portions of the report of Dr. Levin excised.  After considering the submissions of counsel and reviewing the relevant case law, I advised counsel that I was giving serious consideration to excluding the whole report.  I then invited counsel to make further submissions with that in mind.

[2]                I concluded that this case has similarities to Brough v. Richmond, 2003 BCSC 512.  As in Brough, Dr. Levin “steps further into the shoes of the trier of fact while advocating for the defendant.”  He “delves into the weighing and analyzing of evidence” as highlighted by Ms. Campbell’s specific objections.  Dr. Levin stepped outside of his area of expertise, commented on matters of general knowledge that the jury can determine, provided many opinions on credibility and made editorial comments, did not separate his opinions from the facts and assumptions he is relied upon, and engaged in advocacy.

[3]                I, however, was persuaded to exercise my discretion in favour of permitting Dr. Levin to revise the report.  I specifically said that the revision would include no new opinion.  I received the revised report of Dr. Levin which, while it removes much of the offending language, adds a completely new opinion.  It seems to come out of no where.  It is an opinion of significance that does not assist Ms. Campbell and she does not have a chance to deal with it at this late stage of the trial.

[4]                Defendants’ counsel advised the court that there would be no new opinion and Dr. Levin should have been instructed in that respect.  Even if he were not, he should know that new opinions require notice.  This is yet another example of Dr. Levin’s lack of understanding of his role as an expert witness.

[5]                Defendants’ counsel also submits that Dr. Levin is a qualified specialist and should and would follow the court’s instructions.  Counsel says that he will tell Dr. Levin that not doing so may risk a mistrial in this case.  He argues that Dr. Levin has made the other necessary changes.

[6]                I have the discretion to delete the new opinion.  I, however, agree with counsel for Ms. Campbell that, based on the contents of the original report and the unsolicited new opinion, there is a likelihood Dr. Levin will give answers in cross-examination that will be highly prejudicial to Ms. Campbell.  That likelihood of prejudice now outweighs the probative value of admitting the report.

[7]                I conclude that the revised report is not admissible.

"Martinson J."