Plaintiff in Prior Litigation Allowed to Give Evidence About IME Psychiatrist in Another Lawsuit

Master Robert Beaudoin has released an interesting ruling, dealing with a new (to us, anyway) wrinkle on independent medical examinations in personal injury actions.

The case was Safi v. Steele. Shortly before the scheduled trial date, counsel for the defence moved for an order requiring the plaintiff to submit to an examination by psychiatrist Dr. Robert Notkin. Counsel for the plaintiff oppposed the motion. As part of her case, she filed an affidavit from a woman (“Scott”) who had been involved in an earlier lawsuit and who had, herself, undergone an IME with Dr. Notkin. Her affidavit apparently described that examination. (It also appears from the Master’s reasons, that the witness Scott had also given an affidavit about Dr. Notkin in yet another proceeding.)

Counsel for the defendant asked the Master to strike the affidavit, on the basis that admitting it into evidence would have breached the deemed undertaking rule. However, the Master pointed out that “the rule should be limited to and enforceable only by the producing party” and on that basis, held that the affidavit could be received into evidence.

However, Master Beaudoin felt that very little weight should be placed on Ms. Scott’s affidavit. She had been cross-examined by defence counsel and in the course of that examination, had refused to produce any portion of her solicitor’s file from the earlier litigation. The Master said that parties who choose to become involved in other proceedings “must be prepared to have [their] credibility challenged and be questioned about the earlier proceeding”. He went on to say that “[h]ad Defendant’s counsel pushed the point further, I would have ordered the production of the medical portions of her file. If Ms. Scott, or any other Plaintiff, seeks to rely on their own litigation experience and become involved in another party’s proceedings, they cannot hide behind claims of privilege and they open themselves to a full inquiry into their own case.”

 This ruling will probably prevent or at least reduce the practice of using affidavits from plaintiffs in previous proceedings.

(On the other hand, it did appear from the reasons, that the plaintiff might have had legitimate cause for concern. Dr. Notkin evidently admitted, when he was cross-examined, that in 2007, he had written an article in which he had said that “Two-thirds of personal injury people are malingering.”)

The Master was neverthless prepared to order that the plaintiff be examined by Dr. Notkin. However, he would have imposed a number of conditions (no further psychometric testing, Farsi interpreter and the examination to last no longer than three hours. Dr. Notkin was not prepared to conduct the assessment under these conditions.

Finally, counsel for the plaintiff wanted to have the examination videotaped. It appears from his reasons that Master Beaudoin would have been prepared to order that an examination by Dr. Notkin be videotaped but he was not willing to make a “blanket” videotaping order that would apply, regardless of who else might ultimately conduct the examination.

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