The decision regarding which medical experts should testify at trial is of utmost importance and it can impact the outcome of a trial.  This is particularly true for injured claimants who hold the burden in proving their case.  If there are multiple and different types of injuries suffered in a motor vehicle accident, then different types of specialists are needed to provide opinions from within their areas of specialty.  Take for instance an injured claimant who suffered a concussion, a broken leg, chronic soft tissue pain and depression as a result of a motor vehicle accident.  In order to successfully prove the claim and the injuries suffered, opinions from an orthopedic surgeon (for the broken leg), a specialist in physical medicine and rehabilitation (for the chronic soft tissue pain) and a psychiatrist (for the depression) are needed.

ICBC is also afforded the opportunity to send injured claimants to their own specialists.  As long as the specialist proposed by ICBC is relevant in light of the injuries sustained and there is no duplication of experts, then these defence examinations are mandatory.

What happens, however, if ICBC hired their own specialist, serves a copy of their specialist’s medical legal report, lists the specialist as a witness at trial, but at the last moment removes the specialist from their witness list?

In this situation, the injured claimant has the option of arguing that the trial judge draw an adverse inference against ICBC for failing to call its own expert.  To draw an adverse inference is premised on the likelihood that the witness would have given harmful testimony to the party who failed to call him or her.  The principle of adverse inference is described as follows:

“An adverse inference may be drawn against a party, if without sufficient explanation, that party fails to call a witness who might be expected to provide important supporting evidence if their case was sound.”

The decision to draw an adverse inference is discretionary.  In other words, it is not an automatic finding but rather it is the trial judge’s decision whether or not to draw the inference based on the particular facts of the case.

In Grant v. Ditmarsia Holdings Ltd 2020 BCSC 1705, the injured claimant suffered numerous injuries in a motor vehicle accident including neck, back and right elbow pain, depression, anxiety, and post-traumatic stress disorder.  ICBC hired an orthopedic surgeon, Dr. Leith, who conducted an assessment and prepared a medical legal report that was served on the injured claimant.  ICBC listed Dr. Leith as a witness as part of its case.  At trial, however, ICBC decided last minute not to call Dr. Leith to testify and removed his report from evidence.  The injured claimant argued that an adverse inference should be drawn against ICBC.  The trial judge decided against drawing an adverse inference noting:

[53]         The plaintiff submits that I should draw an adverse inference from the fact that the defendants did not call the evidence of Dr. Leith, the orthopedic surgeon who conducted an independent medical examination of the plaintiff on behalf of the defendants. His report was prepared and exchanged by the defendants in the usual course, and he was listed as a witness for the defendants.

[54]         The defendants submit that the burden of proof of the injury claims lies with the plaintiff. The plaintiff submits the decision in Chekoy Sr. v. Hall, 2013 BCSC 790, to support their request that I draw an adverse inference. There, the defence requested the plaintiff attend an independent medical examination at the request of the defence in exchange for receiving a copy of the resulting report. The plaintiff attended the examination, but no report was provided to the plaintiff. At trial, counsel for the defence refused to provide the report to the plaintiff. The failure to provide the report without adequate explanation allowed for an adverse inference to be drawn as to causation in that case (at para. 85).

[55]         In this case, the report of the expert was provided to the plaintiff. The defendants submit that they did not call his evidence as they were of the opinion they did not need to call it to rebut the plaintiff’s case. The plaintiff did not seek to reopen its case in order to call the defendants’ expert. Like other witnesses, apart from privilege limitations, there is no property in an expert witness. They are obliged to be independent and impartial.

[56]         The plaintiff had a copy of the expert’s report. If it was so helpful to them they could have called the expert themselves. They knew exactly what the opinion was in advance. The defendants have provided a satisfactory explanation, being that they did not see the need to rebut the plaintiff’s case.

[57]         I decline to exercise my discretion to find an adverse inference based on the defendants’ decision not to call the evidence of the orthopedic surgeon who conducted an independent medical examination of the plaintiff.

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