A number of years ago, I had a case that was about 3 weeks out from a three week trial. My client was involved in a relatively small accident in a parking lot. The driver of a jacked up truck jumped into the truck and backed up into the side of my client's car. Unfortunately, my client was looking in the opposite direction for a parking spot. Immediately after the impact, my client developed sharp shooting pain radiating down her arm. She had numbness and tingling in her hands along with very bad headaches. The symptoms persisted. Various medical testing demonstrated a disc protrusion in her neck. Six years after the accident the doctors were still trying to decide if neck surgery was going to be beneficial.
To defend the case, ICBC hired a neurosurgeon who wrote an opinion that he thought that my client's disc protrusion was not caused by the accident. He saw a reference to a disc protrusion in her records 15 years before the accident and said that the accident was not the cause of her symptoms.
The neurosurgeon's opinion presented quite a problem for my client's case. If he was to be believed, then my client's claim would be very small and she was very likely to owe ICBC money following a trial as ICBC had made her an offer that was less than the value of her claim but more than the value if this neurosurgeon were to be believed. (In BC if you reject a reasonable offer, the party making the offer can show the judge the offer after the trial and if the judge awards less than the offer then the injured person owes ICBC the costs and expenses of defending the claim.)
My client was heading into a 3 week trial with considerable risk. I knew that if I could knock out the neurosurgeon's opinion, my client's risk would be minimized. The problem, of course, is that outcomes of trials are difficult to predict and I would not know until the middle of the trial how much I was able to undermine the neurosurgeon's opinion.
As luck would have it, the neurosurgeon was unable to attend the trial and the lawyer for ICBC asked us if we would agree to a video deposition, where we would videotape his evidence before trial and present it at trial. We, of course, agreed to the video deposition.
Look for the story to continue in Cross Examination of a Neurosurgeon - Part 2!
