Jason Z. Murray and Kemily Ho Successful in Challenge to Witness’ Credibility and Expert’s Adherence to Duties to the Court
Jason Z. Murray and Kemily Ho recently represented the defendants in a trial where they were successful in undermining the credibility of the plaintiff and the weight ascribed to one of the plaintiff’s key medical experts, culminating in an award of damages that is a small fraction of what the plaintiff sought at trial.
In Repin v. Aam Ventures Ltd., 2020 BCSC 227, the plaintiff argued that she had suffered numerous debilitating injuries in a rear-end motor vehicle collision that caused “almost imperceptible” damage to the two vehicles involved. The court generally accepted the defendants’ submissions that the collision caused the plaintiff to suffer some soft-tissue injuries, but only a modest deterioration of her significant pre-existing physical and psychological conditions. The trial judge also found that, on the whole of the medical and other evidence, the plaintiff had not proved that she suffered a brain injury concussion or mild traumatic brain injury in the collision.
The court made adverse findings about the plaintiff’s credibility, concluding “the plaintiff’s medical and WCB records establish what appears to have been a deliberate plan by the plaintiff to maintain two separate and distinct files of medical complaints, by seeing separate doctors for her workplace accident and for her motor vehicle accident” with the key exception of one doctor who had knowledge of both incidents. In addition, Jason and Kemily were successful in convincing the court to afford little weight to the expert medical opinion evidence of one of the plaintiff’s key expert medical witnesses – the one doctor who had knowledge of both incidents – on the basis that the expert fell afoul of all the key duties of an expert witness providing opinion evidence to the court.
The court reduced all of the plaintiff’s applicable damages by 25% for the plaintiff’s failure to mitigate, except for future cost of care which was reduced by 10%. In the result, the court awarded the plaintiff a mere 10% of the compensation she sought at trial.
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