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Court Rejects Defense Application Seeking Documents From Client

Posted on by Mussio Goodman

Mussio Goodman is pleased to report our success in Court after defense counsel sought medical records of our client just two weeks before trial.

In Singh v. Liske 2023 BCSC 1745, the Court agreed that our client should not be expected to produce additional medical records when trial is imminent.

Our client was 33 years old when she was rear-ended in two separate motor vehicle accidents in the Spring of 2017. As a result of the accidents, she was left with significant long-term injuries to her brain, neck, shoulder, lower back, extremities, and debilitating headaches. Psychologically, our client was left with multiple illnesses including PTSD, anxiety, depression, and various cognitive difficulties from her brain injury.

Just over two weeks before trial, defense counsel brought a court application seeking additional medical records of our client. Our firm took the position that it was now simply too late for these requests to be seriously entertained. Our lawyers argued that the lack of timeliness on behalf of defense counsel introduces unnecessary chaos when our client and firm are in the final stages of trial preparation.

Master Bilawich of the BC Supreme Court agreed, writing the following reasons:

[8] What has happened here is, unfortunately, what happens all too regularly in applications that come before me, is that the parties are effectively two weeks before trial, and a fairly substantial document application is being made seeking documents from non-parties, to be provided within five business days. For the same reasons set out in Chohan, Forstved, and Kaur, I agree with those decisions that at some point you are just simply too close to trial to be entertaining these sorts of applications. They are incredibly disruptive to trial preparation. They could potentially lead to disruption of the trial.

[9] This is really something that, as all experienced counsel know, ought to be pursued a whole lot earlier. Perhaps in this case there was hope that there would be a settlement at mediation. That has not occurred. But regardless of the timing for the mediation, this is something that ought to have been pursued earlier than it was. In my view, it is simply too late and too disruptive at this point to grant the orders that are being sought. For the same reasons that are set out in the Chohan, Forstved, and Kaur decisions, I dismiss the application.

While medical records are understandably relevant in personal injury proceedings, a plaintiff cannot be expected to produce extensive records on the eve of trial. This is especially true when the records need to be obtained from parties that are not directly involved in the litigation. Our clients can rest assured knowing that Mussio Goodman will shield them from these sorts of unreasonable demands by defense counsel.

 

Mussio Goodman Successfully Removes an Executor in a Conflict of Interest with the Estate

Posted on by Mussio Goodman

Mussio Goodman is pleased to announced our success in removing an executor who is in a conflict of interest with the administration of the estate.

The deceased mother was survived by six children who were named as equal beneficiaries to her estate. Two of the siblings were named co-executors under the will, with one of them eventually renouncing his executorship due to a conflict of interest.

We were recently successful in an application put forth by our client and her sister to remove the remaining executrix as a result of her disqualifying conflict of interest and inability to act in the best interests of all beneficiaries.

This case involved a complicated and acrimonious family history, with severe mistrust in place between the siblings. Prior to the passing of the mother, her estate was being managed by Solus trust as a result of a previous court order. The executrix and 3 other siblings then commenced an action attempting to subvert Solus’ authority and power to sell the estate property.

A certificate of pending litigation was placed on the property and our client and her sister were named defendants in that action, along with Solus. This action was later abandoned but not discontinued or withdrawn.

We argued that the executrix was a in a disqualifying conflict of interest because if she discontinued the action, she would be under a duty to recover costs from herself and her co-plaintiffs.

Justice Girn agreed, writing:

[56] I conclude that by commencing actions against the Estate, Gail could be liable to pay for costs to the Estate. This puts Gail in a disabling conflict of interest.

There is no way to get around this conflict of interest.

We also argued that the executrix’s position with respect to unpaid rent from one of the siblings demonstrated her bias towards that particular beneficiary. Again, the Court agreed with our position:

[57] As well, Gail’s steadfast position relating to debts owed by Thomas to the Estate have demonstrated that she is not capable of being neutral in order to act in the best interests of all of the beneficiaries and not just Thomas. As executrix of the Estate, she must consider whether rent is owing by Thomas to the Estate. By refusing to even look into this, in my view, Gail’s position endangers the administration of the Estate to the detriment of all of the beneficiaries.

[58] While Gail may believe that Hazel wanted Thomas’ work in maintaining and improving the Dewdney Trunk Property to be compensated, the evidence does not support this and is not consistent with the position of two of the beneficiaries, Susan and Patricia. In particular, the evidence reflects Gail’s strong animosity towards Patricia for her decision to seek Solus’ appointment.

[59] I note that Hazel’s will is silent on the issue of rent payable by Thomas. She could have considered Thomas’ contribution to the farm but chose not to. Gail

cannot impose her views of what Hazel’s wishes were in respect of Thomas living on the property and his contributions.

Removing an executor is never easy. However, this case demonstrates Mussio Goodman’s steadfast commitment to resolving estate matters that involve complicated family dynamics and difficult emotions. Mussio Goodman pays careful attention to detail and employs creative strategies to ensure we develop strong legal arguments while obtaining the best evidence to support them in court.

Court Awards Our Client over $600,000 After Rejecting ICBC’s Arguments

Posted on by Mussio Goodman

Mussio Goodman is pleased to announce our recent achievement following a ten-day trial in the BC Supreme Court. In Bloomfield v. Berg, 2023 BCSC 1089, the Court awarded our client $601,000, significantly more than ICBC’s final offer of $424,000 before trial.

Our client was a 31-year-old nursing student at the time of the accident. He sustained injuries after being struck by a vehicle driven by the defendant while walking across the street. Our client suffered a multitude of injuries from the accident, including to his neck, shoulders, back, right arm, right knee, right ribs, right hip, and headaches. Our client also faced numerous psychological troubles, including insomnia, anxiety, and depression, all of which had a devastating effect on his personality and social life.

At trial, ICBC argued that our client’s damages should be reduced because he supposedly failed to mitigate his injuries. ICBC took this stance on the basis that our client should have gone to further doctors when his surgery was unsuccessful, and undergone specific treatments for his psychological symptoms. ICBC made this argument despite the multiple other doctors and treatments our client already pursued for his symptoms. The Court agreed with Mussio Goodman’s independent psychiatrist who noted our client was limited in the treatments he could pursue due to his ongoing symptoms, and firmly disagreed with ICBC:

[130] With respect to Dr. Muir’s evidence that a lack of insight and avoidance [of therapy] result from Mr. Bloomfield’s somatic symptom disorder, Mr. Berg submits that there is no evidence that Mr. Bloomfield was unable to seek out and participate in therapy.

[132] I am not satisfied that Mr. Bloomfield acted unreasonably in not pursuing further surgery for his hip pain or psychotherapy. I accept the evidence of Dr. Muir that Mr. Bloomfield’s somatic symptom disorder impacted his ability to take advantage of potential therapies. […]

[133]   In conclusion, I do not find that Mr. Berg has met his onus of proving that Mr. Bloomfield failed to mitigate his damages and therefore decline to make any deduction to Mr. Bloomfield’s damages award on this basis.

Further, ICBC took the stance that our client’s damages for loss of earning capacity should be reduced. This position was partially based on a hypothetical argument that despite his serious injuries from the accident, our client was already prone to hip pain decades from now, which would have limited his earnings anyway. We directed the court to see that this argument is entirely hypothetical and has no basis in reality. The Court agreed, noting:

[89]      The medical evidence establishes that primarily as a result of his pain symptoms, compounded by his somatic symptom disorder, Mr. Bloomfield has been rendered less capable overall of earning income from all types of employment. […] For the same reasons, Mr. Bloomfield has lost the ability to take advantage of all job opportunities that might otherwise have been open. Finally, I am satisfied that as a result of his reduced capabilities, Mr. Bloomfield, who previously considered working in a number of areas a nurse, is less valuable to himself as a person capable of earning income in a competitive labour market.

[90]      I am satisfied that Mr. Bloomfield has demonstrated a real and substantial possibility of diminished earning capacity which will cause income loss.

This case is illustrative of the inconsiderate positions ICBC will take, such as arguing that an injured person should be pursuing endless treatments before they are entitled to appropriate compensation. Further, it demonstrates the hypotheticals ICBC will resort to in order to undermine an injured person’s damages claim. Mussio Goodman has extensive experience advocating for our clients in the face of ICBC’s strategies.

 

Court Awards Our Client $266,000 After ICBC’s $60,000 Offer Was Rejected

Posted on by Mussio Goodman

Following a five-day trial, Mussio Goodman was successful once again. In Omerovic v. Merced, 2023 BCSC 727, the BC Supreme Court awarded our client $266,000 for injuries sustained in a June 2016 accident, almost five times more than ICBC’s $60,000 offer prior to trial.

Our client was 28 years old at the time of the accident, and she continued to experience pain and limitation in all aspects of her life since. Unfortunately for our client, after her family doctor retired, she was unable to find another family doctor to take her on as a patient since she had an open ICBC claim. Since our client couldn’t find another family doctor, she was unable to get referral notes to attend treatment. ICBC attempted to use this to discount our client’s award for injuries by arguing that she failed to mitigate her injuries by not seeking treatment. The court rejected ICBC’s argument.

Our client, even while experiencing pain, pushed through her limitations to complete her work duties and maintain her lifestyle as best as she could since she did not want to be considered a burden to her family and friends. ICBC again tried to discount our client’s injuries by arguing that she was not as injured because she was able to push through her pain. The court rejected this argument as well and stated:

[60] In short, Ms. Omerovic has a stoic disposition and I must bear in mind the principle that her willingness and ability to push through the pain should not count against her, in the assessment of fair compensation for her injuries.

ICBC advanced an argument based on cases completely different on their facts. The Court agreed with our client, stating:

[75] The cases cited by the defendant are unhelpful. Lowney, Bischoff and Thorson involved plaintiffs who suffered less consequential injuries. Notwithstanding her injuries, Ms. Lowney remained an enthusiastic international traveller. Ms. Bischoff had achieved close to a full recovery. Ms. Thorson described her injuries as an inconvenience and her long-term prognosis was good […]

This case is illustrative of the unrealistic arguments that ICBC uses to downplay a person’s injuries to limit the compensation they deserve, and the unreasonable tactics that ICBC uses to force injured persons to take lower compensation before trial.

 

Court Awards Over $720,000 to Injured Motorcyclist Client

Posted on by Mussio Goodman

Mussio Goodman is thrilled to share our recent success in Farrugia v. Bailey, 2023 BCSC 81, where the Court awarded over $720,000 to our client who suffered injuries while riding a motorcycle.

The awarded damages included $200,000 in non-pecuniary damages (pain and suffering), $80,000 for past loss of earnings, $250,000 for future loss of earning capacity, and $180,447.66 for costs of future care.

Our client suffered serious orthopedic injuries in the accident to his dominant right wrist and thumb, as well as his right leg and ankle that required him to undergo multiple surgeries.

A contentious matter in the trial was the manner in which our client should be awarded damages for potential future surgeries as well. The expert opinions identified the likelihood of future fusion surgeries in Mr. Farrugia’s wrist and ankle, and Mussio Goodman sought compensation for the periods after surgery when he would require additional cleaning assistance and rehabilitation.

ICBC argued that because our client was already going to be awarded a significant amount by the Court for future cleaning assistance ($45,000) as well as future physiotherapy ($22,000), massage therapy (15,000), and active rehab ($2,880) sessions, any cleaning services or rehabilitation needed after future surgeries were already being provided for. Instead, the Court agreed with our submissions that separate, additional awards be given to our client on the basis that his need for cleaning assistance and rehabilitation in these periods after surgery is bound to be more intensive.

Another contentious issue at trial was whether our should be awarded compensation for future marijuana purchases to help with his recovery even though he was already a regular user before the accident and arguably would have paid for the products even if he did not get injured. ICBC emphasized these points and argued that future purchases would not be because of our client’s injuries but due to his regular usage in any event.

Mussio Goodman argued that, after the Accident, our client forwent other medication in favor of marijuana products specifically because he found them the best remedy for his pain. Again, the Court agreed and made separate, substantial awards for marijuana ($10,000) and CBD oil ($25,000) as part of the costs of future care.

This case is an example of the precise attention to detail and outside-the-box thinking Mussio Goodman employs to open more avenues for compensation and maximize the overall award for our clients. Mussio Goodman takes pride in meticulously examining the particular circumstances and needs of each of our clients and finding creative solutions to persuade the Court to take them seriously and award our clients accordingly.

Court Awards Our Client Five Times More Than ICBC’s Offer Before Trial

Posted on by Mussio Goodman

Mussio Goodman is delighted to declare our recent accomplishment after a ten-day trial in BC Supreme Court. In Mak v. Blackman, 2022 BCSC 931 the Court awarded our client $445,489, more than five times the $80,000 that ICBC had offered our client for injuries our client sustained in two accidents occurring June 2018 and March 2019.

Our client was a 43-year-old wife and mother of two young children. She was also a business analyst at Central 1. Addressing her injuries, the Court stated:

[140] Ms. Mak has suffered soft tissue injuries to her neck, shoulders, low back, and wrist. Her pain is flared from lifting, household chores, hiking, kayaking, badminton, running, and is worse when she attempts to do computer work for long hours. It is hard for her to sit for long road trips or flights. The pain wakes her up at night, and her sleep is not refreshing. The pain and sleeplessness is a cycle.

The expert physiatrist for ICBC claimed that our client’s limitations resulted from being scared of getting hurt and argued that pain has to be actively injuring a person further before they can limit their work or social life. The Court made short shrift of this argument as follows:

[94] Dr. Acharya’s opinion on the relationship between pain and limitations would lead to the conclusion that a person who has chronic pain syndrome must endure constant flare-ups of pain at a significant detriment to their quality of life simply because they are not further damaging their muscles and ligaments. With respect, this conclusion cannot be correct. While pain is undoubtedly subjective, it is real and the effect it has on people’s lives cannot be ignored. It is reasonable to expect an injured person to engage in activities, even where they cause some pain. It is not reasonable to dismiss the impact that pain can have entirely.

Moreover, this expert’s apparent bias was exposed during cross examination. The expert first insisted our client’s wrist injury was not caused by the March 19 accident, but when cross examined and presented with the clinical records of our client, he conceded it was indeed possible:

[97] … Dr. Acharya explained that he sees patients with wrist injuries, including TFCC tears, frequently. In his opinion, Ms. Mak’s TFCC tear was not caused by either of the Accidents. He based this conclusion, in part, on his view that an individual suffering a TFCC tear arising from a physical trauma would report pain shortly after that trauma and he did not believe that Ms. Mak had done so. However, on cross-examination, Dr. Acharya acknowledged that there were indications in the clinical records following the Second Accident that showed symptomatology that either could or did show right wrist symptoms related to a TFCC tear. Ms. Mak also told Dr. Acharya this but he seems to have disregarded it and he provided no explanation for having done so.

However, later in the cross examination, the expert fell back to his earlier stance of asserting the accident didn’t cause the injury, refusing to acknowledge what he had just earlier admitted to. He revealed the weakness of his position and contradicted himself in the process. The inconsistency of the expert’s testimony was observed and not viewed favourably by the Court:

[99] … Dr. Acharya’s reluctance to concede the possible link between the Second Accident and the wrist injury after being shown the clinical records indicating that Ms. Mak reported pain shortly after the accident is troublesome. […] I give Dr. Acharya’s opinion with respect to Ms. Mak’s wrist injury little weight.

Mak v. Blackman is indicative of how ICBC’s experts can call into question their own supposed role of being “independent”. They can make irrational and biased arguments in order to diminish an injured person’s compensation. These arguments can be disassembled with conscientious and incisive cross examination. Mussio Goodman is very experienced in knowing what to expect from ICBC’s experts and will make sure that our client’s case is safeguarded from those who seek to taint it.