Court of Appeal Finds Expert Witness Lacks Credibility - Nemchin v. Green, 2017 ONSC 2283

August 09, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Nemchin v. Green, 2019 ONCA 634

Date of Decision: July 31, 2019
Heard Before: Rouleau, Lauwers and van Rensburg JJ.A.

On appeal from the judgment of Justice Sylvia Corthorn of the Superior Court of Justice, sitting with a jury, dated April 5, 2017.

Yvonne Green, the appellant and the defendant in this case, made a left-hand turn at an intersection into oncoming traffic and collided with Tanya Nemchin, the respondent and the plaintiff. The jury assessed liability for negligence at 90% against Ms. Green, and 10% against Ms. Nemchin for contributory negligence, and fixed damages in the amount of about $700,000, payable by Ms. Green to Ms. Nemchin.

The trial judge made two rulings on the evidence that appeal counsel submit led to an unjust jury verdict. The defence was not permitted to show the jury surveillance evidence in order to establish that Ms. Nemchin’s activities of daily living were not as much impacted by PTSD as she had led the jury to believe, and the defence was not permitted to show 20 of Ms. Nemchin’s Facebook posts to the jury as evidence to the same effect. The appellant argues that the exclusion of this evidence, which would have presented a more accurate picture of Ms. Nemchin’s true capabilities, was wrong in law, and led to a miscarriage of justice requiring a new trial.

The appeal is dismissed for the reasons that follow.

The defence took the position on the threshold motion that the ‘but for’ test supports a finding that neither the major depression nor the PTD that the Plaintiff suffers were caused by the collision. The defence relied upon evidence from the early 1990’S through to a full examination by Dr. H in 2014 in support of their position.

The Court of Appeal held in their decision that Dr. H was not a credible witness, and some of his findings and conclusions were not supported by fact. For example:

• Dr. H’s credentials, specifically his CV, is misleading in its characterization of his current employment
• He did not provide evidence for his conclusions tat the Plaintiff’s PTSD was caused by some cause other than the accident
• Dr. H acknowledged that his entire assessment lacked a factual basis. He did not investigate the subject matter, his understanding of the facts of the case was not correct, and he lacked crucial current and historical information.
• His CV omitted the fact that rather than working as a senior psychiatrist at a hospital full time, he has been earning nearly 90% of his income from conducting defence medical examinations for the last 5 years.
• He lacked an understanding of the facts of the accident itself

The Court found that DR. H was not credible because of his careless approach to the examination, his ignorance of the facts of the case, his lack of attention to his CV reflecting accurately his employment, and the fact that his practice has never focused on PTSD. The Court determined that the Plaintiff met the threshold of evidence on causation, and that their experts were credible.

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