Mamado v. Fridson, 2016 ONSC 4080 (CanLII)

At the conclusion of trial, the defendant brought a threshold motion and called two expert witnesses in support of the motion: Dr. Soric and Dr. Reznek. The Court found that the evidence from both witnesses contained serious flaws and expressed concern regarding how the majority of their income was derived from conducting medical-legal work for defendants. The motion was denied.

Released June 21, 2016 | Full Decision

This action was commenced from injuries sustained by the Plaintiff as a result of motor vehicle accident which occurred on November 1, 2010. At the time of the accident, she was working full time as a receptionist earning $17 per hour, and taking a night course in psychology at university. She was active and for the most part in good health. Following the accident, the plaintiff was unable to resume her post-secondary studies or return to any form of gainful employment. The defendant conducted surveillance of the plaintiff for 26 days over the course of four years, none of which was relief upon at trial. Medical experts retained by counsel for the plaintiff provided evidence that the plaintiff’s impairments, which related mainly to chronic pain, sprain and strain of the spine, stress, and depression, satisfied the statutory threshold.

Following trial, the defendant brought a “threshold motion”, alleging the plaintiff had not demonstrated that her injuries met the criteria to pass the threshold. In support of this position, the defendant relied upon the evidence of two medical experts, a psychiatrist (Dr. Lawrie Reznek) and physiatrist (Dr. Rajka Soric). The Court determined that, in their evidence, neither of the defence experts had addressed the question of whether the plaintiff’s injuries met the statutory threshold and, further, both had provided evidence that was, overall, actually supportive of the plaintiff’s claim. The Court found that the evidence from both witnesses contained serious flaws. In the Court’s decision, Baltman J. further expressed concern with the fact that the majority of annual income for both of the defendant’s experts was derived from conducting medical-legal work for defendants.

With respect to Dr. Rajka Soric, Baltman J. stated,

• Soric misread Ms. Mamado’s pre-accident medical history. Dr. Soric conceded this error most grudgingly, and then insisted the error was irrelevant to her conclusion despite having previously emphasized it in her testimony;
• She had no recollection of how much time she spent reviewing Ms. Mamado’s brief and preparing her report;
• Several of the tests she claimed to have performed were not documented in her report;
• Soric appeared indignant when it was revealed that out of her income last year, which was in the range of $450,000 – $470,000, the majority came from assessments for defence lawyers and insurance companies. (She has never testified on behalf of a plaintiff, except on one occasion when the plaintiff also happened to be her patient). Incredibly, she is of the view that she can be seen as entirely neutral no matter to whom she owes much of her livelihood.

With respect to Dr. Lawrie Reznek, Baltman J. stated,

• It is curious that the Defendants referred Ms. Mamado to Dr. Reznek, a psychiatrist, when none of her treating practitioners ever referred her to a psychiatrist and their own expert, Dr. Soric, recommended that she be seen by a psychologist;
• Reznek said the only sure way to detect malingering is if you observe the claimant doing something she says she cannot; significantly, the Defendant did not provide him with any of the surveillance conducted;
• He concluded Ms. Mamado was exaggerating her symptoms, in part, because he would view anyone as suspicious who may be injured in an accident and end up before him for a medical-legal assessment;
• Even though half of his time and two thirds of his annual income (of approximately $400,000) is devoted to medical-legal work for defendants, he insisted that does not influence him “in any way”.

In reaching the Court’s decision, Baltman J. identified this evidence as one of several factors which evidenced a “serious flaw” in the defendant’s expert evidence and ultimately found the plaintiff’s injuries met the threshold. The defendant’s threshold motion was denied.