IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120927

Docket: 09-4677

Registry:
Victoria

Between:

Renee Michelle
Pollitt

Plaintiff

And:

Stuart Michael
Duke

Defendant

Before:
The Honourable Mr. Justice G.R.J. Gaul

Oral Ruling re Independent Medical Examination

[1]            
THE COURT: The defence in this personal injury action seeks an
order pursuant to Rule 7‑6(2) and (3) of the Rules of Court that
the plaintiff undergo another independent medical examination and that she
answer any relevant questions posed to her by the examining physician.

[2]            
The plaintiff has already undergone two independent medical
examinations. The power to order an additional examination is a discretionary
one. I must be satisfied that the examination is necessary to ensure a
reasonable equality between the parties as they prepare their respective cases for
trial. As L. Smith J. observed in McKay v Passmore, 2005 BCSC
570 at para. 17, “reasonable equality does not mean that the defendant must
be able to match expert for expert or report for report”. I accept the submission
of the defence that this is not what it is endeavouring to do in this case.

[3]            
This case is, using the common expression, a “traumatic brain injury
case”. In support of her claim, the plaintiff has a large number of expert medical-legal
reports relating to the multitude of ailments that she claims are attributable
to the motor vehicle accident in question. One of the principal elements of the
plaintiff’s case relates to her complaints of dizziness, nausea, and vomiting. With
respect to these complaints, the plaintiff has the expert opinion evidence of
Dr. Longridge, an otolaryngologist. Dr. Longridge has produced two medical-legal
reports outlining his opinions.

[4]            
In response to the plaintiff’s evidence, the defence has marshaled a
psychiatric report and a neurological report. These reports are based on independent
medical examinations conducted of the plaintiff. Dr. Moll, a neurologist
retained by the defence, conducted one of the independent medical examinations
of the plaintiff. Dr. Moll also reviewed Dr. Longridge’s first report
and then prepared an expert medical-legal report of his own in which he is critical
of Dr. Longridge’s work. The critique, however, is focused more on
Dr. Longridge’s methodology than his conclusions. That is, Dr. Moll
is critical of Dr. Longridge’s apparent failure to consider other possible
causes for the plaintiff’s dizziness, as opposed to the actual medical opinions
expressed in Dr. Longridge’s report. Dr. Moll’s inability or
reluctance to criticize the opinions of Dr. Longridge is not that
surprising, given that Dr. Moll is a neurologist and not an
otolaryngologist. They are two different fields in the area of medicine.

[5]            
I accept the argument of the defence that this is not a case where all the
test findings of Dr. Longridge could have been dealt with by Dr. Moll
in any event. This is particularly so given that Dr. Longridge’s second
report was not disclosed to the defence until after Dr. Moll had seen and
examined the plaintiff. I would note also parenthetically that the second
examination of the plaintiff by Dr. Longridge used additional new tests
that were not used for his first report.

[6]            
Considering the test that I need to apply and recognizing that it is a
discretionary decision, I am persuaded by the argument of the defence. In the
interest of a fair trial, I am granting the orders sought at paragraphs 1 and 2
of the notice of application.

[7]            
Costs will be in the in the cause.

“G.R.J.
Gaul J.”