Weightless Experts
Judges “weigh” evidence. We talk about the “scales of justice”. The more believable the evidence, the more it “weighs”. Rarely do judges say that a witness – especially a professional or expert witness -- is an outright liar. They don’t need to. It’s enough to say this witness has “little or no weight”.
When a judge says they give no weight to a witness (or to evidence), it means that the witness might as well have stayed home. Their evidence was no more persuasive than the sound of the room’s air conditioning.
This is the finding Justice Paul Walker made about former Vancouver physical medicine doctor Steven Kent Baker in the recent case of Wong v. Stone: https://canlii.ca/t/jprj3. Dr. Baker did a defence medical exam of Ms. Wong on behalf of ICBC. He observed some objective signs of injury in Ms. Wong. Notwithstanding this: “Dr. Baker did not admit that his findings concerning the significant limitations in Ms. Wong’s cervical spine are relevant, objective evidence of injury until he was confronted with that proposition in cross-examination.”
Justice Walker determined Dr. Baker:
· was guilty of: “often straying into advocacy”
· “took a critical as opposed to an objective view of Ms. Wong’s history of her complaints”
· “engaged in argument in certain parts of his report as he tried to explain away certain clinical records that on their face support Ms. Wong’s subjective reports of injuries”
· “would not concede the obvious (including his mistakes…”
Justice Walker concluded: [118] For these reasons, I view the reliable parts of Dr. Baker’s report to be his objective findings on examination and his treatment recommendations based on those findings. Otherwise, I would accord the rest of his opinion evidence no weight in the circumstances.
No kidding. Clearly, Dr. Baker’s opinion was not worth the air it took to say.
Kudos to Vancouver lawyer Peter Granger for exposing Dr. Baker, and for being a “real” trial lawyer: one who fights for his client to get justice.
