Favoured ICBC expert’s testimony rejected in court again
Judge finds evidence of orthopedic surgeon Dr. Olli Sovio failed to meet ‘the necessary standard’ of impartiality and independence
Continuing to use a medical expert whose evidence has been repeatedly rejected by judges could cost the Insurance Corporation of British Columbia dear, according to a Surrey, B.C. lawyer.
Orthopedic surgeon Dr. Olli Sovio examined accident victim Tammy Lynn Yeomans at the request of the ICBC in its defence of her personal injury action, but in a recent decision, B.C. Supreme Court Justice Nigel Kent refused to admit his evidence, noting that he was not the first judge of the court to do so.
According to the ruling, Sovio retired from surgery in 2014, but retains privileges at the Abbotsford Regional Hospital.
“He is clearly a competent orthopedic surgeon with vast experience. Ordinarily, such an individual would be qualified to provide the court with expert opinion on the diagnosis and treatment of injuries to the knee,” Justice Kent wrote. “However, it is a pre-condition to admissibility of expert opinion evidence that the expert be willing and able to provide evidence that is truly impartial, independent, and unbiased. Regretfully, I am obliged to conclude that Dr. Sovio fails to meet the necessary standard.”
Yeomans, a passenger in a car struck by a taxicab, was ultimately awarded $167,000 in damages, but Stephen Ballard, her lawyer, says Justice Kent’s conclusions on Sovio’s expert evidence could prove costly for the ICBC.
“The conduct of ICBC, in continuing to use an expert that has already been thoroughly discredited by the Court, may warrant either special or uplifted costs,” Ballard, the managing partner at Surrey firm Cowley & Company, tells Court Report Canada.
In a statement, ICBC spokesperson Lindsay Wilkins said they will be reviewing the judgment.
“We regularly review our use of experts and how they are received by the court,” she added.
Meanwhile, Sovio tells Court Report Canada in an interview that he rejects any suggestion he is biased, noting the number of times his evidence has been rejected by judges pales in comparison to his hundreds of appearances in court and the thousands of medical examinations he has performed in legal cases.
“What findings I have on the basis of the patient examination, I try to present those as best I can,” he says. “Sometimes you don’t do a good enough job and it doesn’t come across the way you wanted it to come across.”
According to Sovio, some of the cross-examinations he faces from plaintiffs’ lawyers are “very confrontational.”
“The idea they have, which I’ve been able to combat in the past, is that they try to get under your skin and do the best they can to discredit you on that basis. So I think this guy managed to do that,” he says. “I guess the best thing is to try and not let them get under your skin.”
Justice Kent’s decision referenced the 2017 ruling in Palangio v.Tso , when one of his Supreme Court colleagues Justice Elizabeth Arnold-Bailey concluded, amongst other things, that Sovio was not a reliable and credible witness, was unqualified to give evidence on chronic pain management, and used terms to create a negative or false impression of the plaintiff.
“All of these criticisms, and more, apply to Dr. Sovio’s evidence in this case,” Justice Kent wrote, adding that the surgeon was “combative and defensive” on cross-examination.
“He expressed scorn for the Trial Lawyers Association of British Columbia who he says has ‘singled me out’ and prepared a ‘cheat sheet’ for his cross-examination. He expressed disdain for private chronic pain clinics and scoffed at their proliferation in some places beyond the number of McDonald’s restaurants. He explained his reference to the ‘Waddell factors’ (monetary gain motivation, etc.) was ‘just quoting,’ an explanation which I regretfully reject as manifestly untrue,” Justice Kent’s decision reads.
“I think that was very unfair, and I wonder whether she was a plaintiff lawyer in the past,” Sovio says.
In 2019, another Supreme Court judge commented that Sovio appeared unwilling to accept a plaintiff’s complaints of pain because he observed no objective findings that could explain it.
“Dr. Sovio’s lack of an open mind as well as some of his comments undermined my confidence that he was testifying in a manner consistent with the impartiality the court expects from an expert witness,” Justice Diane MacDonald wrote. “I give little weight to Dr. Sovio’s evidence due to these concerns.”
And in 2014, Justice Susan Griffin wrote that the surgeon was clear in his evidence “that he thinks many workers injured at work simply would prefer not to return to work even though they do not have a good reason for not returning.”
“He offered this as his explanation for discounting the opinion of the plaintiff’s general physician,” the judge continued. “Unfortunately I felt that Dr. Sovio was unduly cynical and had a bias in this regard and so viewed the plaintiff’s own reports of back pain as not worthy of any weight, which is not an objective approach.”
According to its financial statements, ICBC has paid Sovio around $3.4 million in total for his services since the start of 2010, peaking at more than $500,000 annually in 2013, although his billings have tailed off in the last couple of years, dropping to around $41,000 in the most recent available for the 2019-2020 financial year.
Sovio says the rough ride he gets from plaintiff-side lawyers will not put him off giving evidence in future.
“If I’m asked to do opinions, I will continue to do them,” he says. Someone’s got to do them, and I’ve got a lot of experience.”
“The problem is that these lawyers would like nothing better than to not get the doctors to testify on the defence side, because they make it so unpleasant,” Sovio adds, noting that many of his colleagues are unwilling to get involved in court matters for this reason. “My feeling is that lawyers come by their reputations honestly, especially the ones that attack the doctor or the expert on a personal basis, rather than their findings.”
*Updated March 14 to include quotes from Dr. Sovio.
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