Misleading Lawyer's Instruction Letter to Expert Leads to Ruling that Plaintiff Fails to Meet Burden of Proof

May 15, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Sivell v. Sherghin        2017 ONSC 1368

Date of Decision:March 1, 2017
Heard Before: Howard, J.

In a recent Superior Court of Justice decision released by Justice Paul Howard, the testimony of an expert witness was rejected on the basis that the instructions he had received from the lawyer were misleading, and incomplete.

In the case that landed before Justice Powell, Sivell v. Sherghin, 2017 ONSC 1368, the alleged he was the victim of medical malpractice which rendered him totally incontinent. The applicant’s lawyer sought the expert onion of a consulting surgeon, and in his letter of instruction the lawyer misled the consultant, and provided false information.  As a result of this the judge did not accept the expert’s opinion provided. In this case the lawyer provided a letter of instruction with false information misleading the physician leading to an unreliable conclusion.

All lawyers provide expert medical witnesses with a letter of instruction that clearly asks certain questions about the case. The letter asks for a diagnosis, prognosis, and for causation of the problem to be defined.

The instruction letter is reviewed by opposing counsel at trial.  In this case the instructions letter was not completely accurate about what transpired during the treatment of the plaintiff, and what the resulting impacts were. On this basis the judge felt that the expert was mislead by this information and therefore the judge could not rely on the opinion that the expert was providing. As the evidence was not reliable, the plaintiff failed to prove the procedure caused him harm, and his case was dismissed.

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