IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120425

Docket: M052368

Registry: Vancouver

Between:

Alan Lennox

Plaintiff

And:

Azmal Ahmed-Rumiul Karim

Defendant

Before: The Honourable Mr. Justice
Armstrong

Oral Reasons for Judgment

On the Admissibility
of Report of Dr. Leith

[1]            
THE COURT: The plaintiff was injured in a car
accident on August 16, 2003. This action was commenced on May 30, 2005, with a
statement of claim that enumerated multiple injuries suffered in the accident.
For the purposes of this ruling, I will deal only with the allegation in para.
5(e) that Mr. Lennox suffered injuries to the knees.

[2]            
The proceeding
seems to have languished for several years, and I was told that the parties
eventually appeared at a case planning conference on December 17, 
2010. At the conference, the plaintiff’s case plan included references that he
would be relying on expert opinion evidence of two treating doctors, a Dr.
Yanosky and a Dr. Weiler, who had given reports in 2008. Mr. Turner advised
that during the case planning conference he expressed his intention to obtain
further medical evidence; however, that intention was not recorded in the case
planning conference order, nor was any subsequent order given under Rule 11-1(2).

[3]            
On January 9,
2012, the plaintiff obtained a medicolegal report from Dr. R.N. Stewart. That
report contains several opinions about Mr. Lennox, including the following. In
her opinion, Mr. Lennox suffered soft tissue injury to his neck, upper back,
lower back, right forearm, wrist and right knee in the August 2003 motor
vehicle accident. It is likely that the tear of the medial meniscus noted on
the MRI scan was attributable to the accident.

[4]            
Due to the injury
to his back, he was unable to continue his physically demanding job as a Steadicam
operator in the film industry. He appropriately attempted to educate himself
and secure work in less demanding jobs.

[5]            
He is likely somewhat
depressed because of the limitations imposed by his injuries in the motor
vehicle accident. She recommended he have psychological counselling to assist
in his adjustment to his injuries and to provide pain management strategies.

[6]            
It is likely that
he will continue to experience all of his current symptoms and activity
limitations resulting from the accident over the long term.

[7]            
Because of the
meniscal tear, he is at risk for the development of degenerative changes in the
right knee, although she would defer to an orthopaedic surgeon as to the likelihood
he would require surgery.

[8]            
The injuries to
his neck and back will not lead to degenerative changes in his spine in the
future.

[9]            
That report was
served on the defendant towards the end of January 2012. It was actually
January 27, 2012, which was by my calculation some 87 days before the
commencement of trial.

[10]        
The defendant
obtained a medicolegal report from Dr. Leith, which was served on the plaintiff’s
under Rule 11-6(4). The Leith report contains a critique of the Stewart report
coupled with an opinion that is contrary to the Stewart opinion. A summary of
Dr. Leith’s opinions are these.

[11]        
Based on the
review of records provided from an orthopaedic perspective, he did not sustain
any medial meniscal tear to his right knee as a result of the subject accident.
Dr. Stewart failed to acknowledge that Mr. Lennox did not present initially
with acute knee pain. This is inconsistent with the medial meniscus tear. The
location of the pain is not at all close to where symptoms from a medial
meniscus tear would occur. Based on the principle of anatomic location and
correlation of symptoms it is impossible that the meniscal tear occurred at the
time of the accident.

[12]        
The clinical
presentation following the accident was not consistent with an acute injury, such
as a medial meniscus tear. There was no immediate pain, swelling or mechanical
symptoms noted. He presented to medical practitioners with only minor anterior
knee pain and a normal physical examination.

[13]        
The records do not
indicate that there was a history of Mr. Lennox’s knee striking the dash on
impact, but this is the history he provided to Dr. Stewart. The mechanism of a
direct anterior blow to the knee would result in a contusion to the anterior
knee, which is the location of the pain that was documented in the records following
the subject accident. Clearly not a meniscus tear clinical presentation.

[14]        
A direct blow to
the anterior knee is not consistent with the establishment of a meniscus tear. Meniscus
tears usually occur when the knee is under load and a torsional force is
applied, such as when standing and pivoting on a planted foot with deep knee
bending or twisting. Meniscus tears reported on the MRI as complex are most
often seen in patients over 40 and are classified as a degenerative type of
tear rather than a traumatic tear.

[15]        
MRIs cannot
determine when the pathology shown on the MRI actually occurred. It is
important to correlate the MRI findings with the history of the traumatic event
and clinical presentation following traumatic event and to review the
mechanisms of the trauma. It is clear the clinical presentation and mechanism
of the subject accident were not consistent with an acute meniscus tear.

[16]        
The events that
involved the right knee in 2004 that ended up being diagnosed as cellulitis
were unrelated to the subject accident but led to an incidental investigation
providing another diagnosis. The events leading up to the MRI were only
incidental and should not be erroneously attributed to the accident.

[17]        
Mr. Lennox did not
suffer a medial meniscus tear as a result of the accident. He suffered only a
minor anterior knee pain that would be consistent with a mild contusion soft
tissue irritation. This would be expected to resolve rather rapidly over a
period of a few weeks. The records supported this expected outcome.

[18]        
What has occurred
is that Mr. Lennox suffered an independent problem to the right knee well after
the accident that was diagnosed as superficial skin infection. This recovered
but due to investigations and incidental findings on the MRI, a link to those
findings to the accident was made without clinical correlation.

[19]        
The plaintiff
objects to the admissibility of Dr. Leith’s report on the basis that it does
not meet the requirements of admissibility under Rules 11-6(3) or (4). They
argue that the Leith report is fresh opinion evidence and that, based on the
decision of Smith J. in Crane v. Lee, I should refuse to admit the
report into evidence.

[20]        
The plaintiff says
that the report is not responsive because of the conclusion that the plaintiff
did not sustain a medial meniscus tear in the accident. He says that Dr.
Leith’s opinion as to the cause of the meniscus tear is the central issue in
the lawsuit and does not constitute true rebuttal evidence.

[21]        
I inferred that
the plaintiff’s position was that the defendant had an independent obligation
to investigate the plaintiff’s knee injury if they wished to tender evidence
against this proposition.

[22]        
The plaintiff
argued that the defendant’s letter of instruction to Dr. Leith included seven
specific issues that did not clearly outline that the report was to be a response
to Dr. Stewart’s opinion. In my view, this objection is without merit insofar
as the issue advanced by the plaintiff is the admissibility of the report and
whether the terms of that report are responsive to the opinions of Dr. Stewart.
That issue is to be discerned from the pleadings.

[23]        
Mr. Pettit said
that there was a telephone conversation with Dr. Leith, which explains why his
report is clearly drafted as a response to opinions given by Dr. Stewart,
although the letter does not mention a specific direction to that effect.

[24]        
Mr. Pettit also
noted that the instruction letter to Dr. Stewart contained no specific
instructions except a request that she delay writing a report until Mr. Turner had
been able to speak to her. In my view, nothing turns on those facts leading up
to the preparation of the two reports.

[25]        
The plaintiff also
points out that Dr. Leith was given access to records and surveillance videos
that were not referenced in Dr. Stewart’s report. However, Dr. Leith did
not include references to any of those documents or the facts contained in
those documents in support of his opinion.

[26]        
The plaintiff also
argues that the defendants were invited to have the plaintiffs seen by an
independent medical examiner and took no steps to obtain an opinion. They argue
that the defendant simply delayed in obtaining and serving expert evidence in
an attempt to introduce all of their expert evidence as a response to the plaintiff’s
report. They argue that the Leith report is a freestanding medical opinion and
not a responding report.

[27]        
The defendant
pointed to the plaintiff’s failure to disclose Dr. Stewart’s upcoming opinion
at the CPC in December 2010. That failure could be fatal to the plaintiff’s
intention to introduce Dr. Stewart’s report at this trial. At the time, the
plaintiff disclosed their intent to rely on opinions only from Dr. Yanosky and
Dr. Weiler.

[28]        
Rule 11-1(2) is a
bar to tendering Dr. Stewart’s report without further order of the court. The
plaintiff has not asked for such an order. The defendants do not wish to rely
on this rule to exclude Dr. Stewart’s report, because that would result in an
adjournment of the trial and he hoped that by proceeding the trial date could
be saved. Nevertheless, he suggested that if Dr. Leith’s report is excluded, he
reserved the right to make application for an adjournment so as to be able to
tender the report within an allowed time.

[29]        
I am somewhat
troubled by the timing of the exchanges of the reports as it impacts on the
plaintiff’s objection. The Stewart report was served January 27, 2012, some 86
days prior to the trial. Although this is in compliance with the rule, I
observe that the statement of claim refers only to a knee injury without any
specific reference to the type of injury alleged by the plaintiff and the
proper notice of Dr. Stewart’s report or their intention to rely on Dr.
Stewart’s opinion evidence was not given.

[30]        
The defendant
argues that Dr. Leith’s report is in its entirety truly a responsive rebuttal
report. Dr. Leith sets out 10 conclusions, each dealing with the opinions given
by Dr. Stewart. His report focuses on the one aspect of the plaintiff’s
injuries, that is, his meniscus tear, and deals with conclusions relating to
that finding.

[31]        
Dr. Leith
addressed the opinions of Dr. Stewart directly, and his conclusions were
proceeded by this statement in his letter:

Unfortunately
I respectfully disagree with the conclusions drawn by Dr. Stewart
regarding the right knee meniscus pathology and its relation to the subject
accident for the following reasons

And then
he sets out the reasons which I have mentioned previously.

[32]        
In my view, the
Leith report is truly a responsive rebuttal report as described by Savage J. in
Wright v. Bauer. In the analysis of this question, the comments of
Henderson J. in Canadian National Railway v. Canada are instructive. In
that case the court was referring to a rebuttal opinion coming from the
plaintiff in response to a defence reply opinion. Justice Henderson said:

[25]      When
I come to apply that settled principle of law to these reports, I find that the
Byrne report is clearly inadmissible as reply or rebuttal evidence, in its
entirety.  It is simply a fresh opinion on the merits.  It makes no effort to
respond directly to the defence experts or to criticize their assumptions and
methodology.  It simply asserts (or reasserts) the merits of the plaintiff’s
claim.  The report represents a classic instance of case splitting and should
be adduced, if it is adduced at all, as part of the plaintiff’s case in chief.

[26]      … Those
portions of the Bredehoeft report which consist of a critical review (in the
words of the authors) of the analysis of the defence expert reports are
admissible as true rebuttal or reply evidence.  Those portions which describe
the author’s own assessment of the cause of the embankment failure are not
admissible as reply evidence and must be admitted, if they are admitted at all,
as part of the plaintiff’s case in chief.

[33]        
The last statement
by Henderson J. is not applicable to the circumstances in this case. The
plaintiff in that case had already delivered opinion evidence as to the cause
of the slide. One of the new reports was in part rebuttal but also a direct
repetition of the plaintiff’s claims in the action. The other new report was
simply restating the plaintiff’s positions.

[34]        
The defendant in
this case is responding only to the plaintiff’s expert and is not being
tendered to give evidence of an independent opinion. Rather, his opinion is
tendered to explain the reasons why he disagrees with the opinions and
conclusions of Dr. Stewart.

[35]        
Cullen J., as he
then was, said this in Luedecke at para. 49:

[49]      Although
the plaintiff submits that Dr. Reebye should be limited in his report to
"criticizing the methodology or the research or pointing out facts
apparent from the records which the other examiners may have overlooked"
based on Justice Savage’s apparent reliance on C.N. Rail, supra,
I do not take from Savage J.’s judgment that responsive opinions are invariably
limited to "a critical analysis of the methodology of the opposing
expert."

[50]      In C.N.
Rail, supra, Henderson J. was dealing with rebuttal evidence in the
classic sense described by Southin J.A. in Sterritt v. McLeod, supra,
as simply evidence responsive to some point in the oral evidence of the witness
called by the defendant.

[51]      What
is at issue in the present case is a different form of responsive evidence,
recognized in Stainer v. Plaza, supra, as distinct in paragraph
15, where Finch J.A. ( as he then was) noted: 

 The
third condition in the order is directed to the third party calling an
independent medical examiner "for rebuttal evidence" I understand
from counsel that this refers not to rebuttal evidence as generally understood,
but to evidence that is purely responsive to medical evidence which the
plaintiff has led as part of her case.  It would not apply to opinion evidence
offered by the third party on subject matters not adduced in the medical
evidence adduced by the plaintiff.

[52]      I
thus conclude that what is referred to in Rule 11-6(4) is not akin to rebuttal
evidence such as that called by a plaintiff in response to a defendant’s case,
with its consequent limitations.  Nor is it akin to expert evidence that
responds generally to the subject matter of the plaintiff’s case.  Rather, it
refers to evidence that is "purely responsive" to the medical
evidence which the other party has called.

[36]        
In the
circumstances of this case, the Leith opinion is purely responsive medical
evidence to the evidence adduced by the plaintiff.

[37]        
I accept the
defendant’s concerns about the evidence surrounding the decision of Smith J. in
Crane. In this case I find that the Leith report is limited to and is
truly responsive to the evidence given by Stewart. The facts in Crane were
not fully described.

[38]        
In this case, Mr.
Lennox failed to alert the defendant to the central issue of a torn meniscus. His
pleadings indicated an injury of both knees without any reference in specific to
the torn meniscus. This is significant in this case, because the plaintiff was
under the obligation to obtain a court order to permit Dr. Stewart to testify
and if that order had been applied for, the defendant would have been put on
notice at an earlier time as to the issue which became central to this case.

[39]        
In my view the Leith report, in the words of Smith J., is not a freestanding medical opinion that ought to
have been served under Rule 11-6(3). It is in its entirety a responsive opinion
directed solely to one opinion of Dr. Stewart relating to the plaintiff’s
medical condition, that being the torn meniscus.

[40]        
There is one
exception to this conclusion. Dr. Leith comments that the events of 2004 being
diagnosed as cellulitis were unrelated to the subject accident. This latter
observation coupled with his remark that the plaintiff suffered an independent
problem to the right knee well after the subject accident when he was diagnosed
with a skin infection are opinions that were not responsive to any opinions
contained in Dr. Stewart’s report. Other than that qualification, I find Dr.
Leith’s report to deal directly with the methodology, analysis and conclusions
of Dr. Stewart, but the comments of Finch J.A. in Stainer v. Plaza are
apposite. It would not apply to opinion evidence offered by the third party on
subject matters not adduced in the medical evidence adduced by the plaintiff.

[41]        
The evidence
relating to the 2004 events, the cellulitis and the skin infection, were not opinions
given by Dr. Stewart. In my view, those two opinions ought to be expunged, or
cannot be relied upon by the defendant, because they are not truly responsive
to Dr. Stewart’s opinions.

[42]        
If I am wrong in
this decision, it would have also been my further opinion that in the
circumstances of this case the defendant would have otherwise been entitled to
an adjournment of the trial to secure the medical report of Dr. Leith if it was
not otherwise admissible under 11-6(4). It seems to me that 11-1(2) is
purposely directed at requiring the plaintiff and defendant to avoid the last
minute introduction of medical evidence in cases which may have proceeded for
many years on a different track or a different theory. I note that neither of
the experts described in the CPC report have been or are going to be called as
witnesses in this case, but I am not required to deal with that issue.

[43]        
It seems to me
that Dr. Leith’s report can simply be admitted and I can ignore those
provisions which in my view are not appropriate. Historically we used to sort
of expunge them with a black pen, but in the circumstances – Mr. Turner, what
would your view be on that?

[44]        
MR. TURNER:  I’m
content with Your Lordship’s discretion to just ignore those portions without
the redaction.

[45]        
THE COURT:  Okay.

“Armstrong J.”