Ontario Trial Lawyers Association Case Summaries – April 26, 2017

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Ontario Trial Lawyers Association Case Summaries – April 26, 2017

Nemchin v. Green, 2017 ONSC 2283

On the threshold motion, the trial Judge found that Dr. Richard Hershberg was not a credible witness and gave his evidence much less weight than the evidence of the Plaintiffs’ psychiatrists.

Released April 13, 2017 | Full Decision [CanLII]

On the threshold motion, the Defendant took the position that the “but for” test supports a finding that the PTSD and major depression from which the Plaintiff suffers were not caused by the collision. The defence relied on the Plaintiff’s diagnosis of PTSD in the early 1990’s and other stressful events in the Plaintiff’s life between 2009 and 2011, as well as the defence medical examination by Dr. Hershberg in September 2014.

Corthorn J. analyzed Dr. Hersberg’s evidence in great detail and concluded that Dr. Hershberg was not a credible witness. The following are some of the findings/comments made by Corthorn J. about Dr. Hershberg’s evidence:

  • With respect to the factual basis of his opinions, Dr. Hershberg acknowledged that he had incomplete information because he had not fully delved into the particular subject matter, that his understanding of the facts was inaccurate, and that historical information demonstrates that the Plaintiff was able to handle positions of responsibility prior to the accident;
  • He identified alternative causes for the Plaintiff’s PTSD without evidence supporting them;
  • His curriculum vitae misleadingly indicated that he is a Senior Psychiatrist at West Park Hospital, even though he is not an active treating staff and attends there only once every 4-6 weeks;
  • Despite the fact that 80-90% of his income was generated from conducting defence medical examinations, his curriculum vitae does not reflect the extent to which he has been doing assessments for the past 5 years or more; and
  • He showed a lack of attention to accuracy demonstrated by the manner in which he dealt with the mechanics of the collision despite acknowledging that it was important to have an understanding of the moments before the collision.

Corthorn J. found that Dr. Hershberg was cavalier in his approach to the requirement to be accurate with respect to his curriculum vitae, when obtaining information from the Plaintiff during the examination, and in his report as to the information he obtained from the Plaintiff.  Corthorn J. also noted that Dr. Hershberg’s area of practice was never focused on PTSD. Corthorn J. found the Plaintiffs’ experts to be credible, accepted their evidence on causation and found that the Plaintiff met the threshold.

This post originally appeared on Ontario Trial Lawyers Association Blog on March 17, 2017.

By | 2017-05-01T18:56:48+00:00 May 1st, 2017|Blog, Personal Injury|0 Comments