Instruct Your Experts Well To Protect Their Testimony at Trial

An interesting Judgment in Blake v. Dominion of Canada General Insurance Co., 2013 ONSC 6069 (CanLII),  written by a Judge in an Ontario personal injury case.  This is not a frequent occurence, since most personal injury cases proceed in Ontario by jury and the review of evidence by a Judge tends to be on motions brought by defendants on the pain and suffering (non-pecuniary damages) “threshold” as defined in the Insurance Act.

This is a good read for personal injury litigators, given the review of the medical evidence.  Important to note here is the review of the expert reports and the apparent failure of some experts to consider, properly, the plaintiff’s pre-existing and lengthy medical history.

Unfortunately, that oversight – including the provision of approximately 16 pre-MVA medical reports that were not referred to by one of the plaintiff’s medical expert in his report, lead to the decision that the plaintiff did not suffer injuries which would qualify her for the caregiver and other benefits sought.

A review of the issues of proper retainer instruction of plaintiff medical experts is useful for practitioners – see in particular paragraph 100 of Whitten, J.’s Judgment where he finds that Dr. Michael Rathbone, a neurology expert for the plaintiff, “was definitely handicapped by his instructions” in terms of scope of review of the case.

After the decision, the issue of costs was dealt with in Blake v. Dominion of Canada General Insurance Co., 2013 ONSC 7445 (CanLII), where it appears that the defendants were awarded $105,000.00 plus HST in costs for this action which took 9 days of trial, plus disbursements.

Gregory Chang
Personal Injury and Insurance Lawyer