Duelling experts: Forensic follies | Marcel Strigberger

By Marcel Strigberger

Law360 Canada (November 3, 2023, 2:37 PM EDT) --
Marcel Strigberger
Marcel Strigberger
The Pope is definitely Catholic. But are experts objective?  

In Ontario experts are expected to actually deliver a certificate attesting to their impartiality. Then again this season the Toronto Blue Jays no doubt expected not to get swept in the preliminary playoff round.

Not surprisingly, expert opinions are generally on the opposite ends of the spectrum.

I have noticed for example that most psychiatric reports will assess the same accident victim polar opposite.

Let’s take a case of a 50-ish-year-old European woman restaurant worker, who has not been able to resume work since her car accident. The plaintiff and defendant psychiatric reports to the respective lawyers might read as follows:

Plaintiff’s medical assessment:

I am an associate professor of psychiatry at the University of Toronto, with special interest in chronic pain.

Visit

Your client Ludmilla arrived 15 minutes early. This suggests someone who is very responsible. She was dressed casually, wearing blue jeans, obviously not being pretentious.

The catastrophic incident

Ludmilla was a vivid historian. She described that she was stopped when suddenly she was struck forcefully from the rear by a cement truck. She related, “I thinking I hit by atomic bomb. I dead for sure.”

Personal history

She advises that she was born and raised in Hungary, the youngest of eight children.

Her mother was a seamstress there. She was a heavy smoker.

Her father was a shepherd from rural Greece, who came to seek his fortune in Budapest. He also dabbled in bicycle repairs. He was an altruistic gentleman spending all his spare time asking people if he could fix their bicycle flats.

Ludmilla is presently married to Victor, the owner of Victor’s Delicious Deli, in Toronto. Until the accident she assisted her husband in running the deli.

Examination

She had good eye contact. She is constantly in pain. She has had to stop working at the deli as, “I no longer able to lift anything. Even a pastrami sandwich with a pickle ... no way ... I feel useless.”

When asked to count backwards by sevens from 100 she got stuck at 90. I handed her a facial tissue as her eyes started to moisten.

Impressions

There is no doubt that this pleasant lady suffers from depression and severe chronic pain syndrome. Like her father she was a workaholic who demanded 100 per cent or rather 107 per cent from herself. Now she is totally disabled from working. Her condition is entirely attributable to the serious motor vehicle accident.

The prognosis is guarded.

Sincerely,

C. Jackson Smithfield

Defence medical assessment:

I am an associate professor of psychiatry at the University of Toronto, with special interest in malingering.

I read the medical brief that you sent along, including the report of Dr. Smithfield.

I shall say no more about his report. I’ll confine mine to non-fiction.

Visit

The subject woman arrived 15 minutes early. This demonstrates pre-existing chronic anxiety. She just can’t wait to get her hands on that insurance money.

The subject was dressed sloppily in blue jeans trying to impress me of her humility.

Incident(????)  

She says that she was fully stopped when she was allegedly tapped by another vehicle. I can’t imagine someone this anxious actually stopping for anything.

She exaggerated, magnifying the size of the offending vehicle adamant that it was a cement truck. When I asked her once again what type of car it was, she insisted it was a cement truck. She was non-repentant.

She then said in describing the light jolt, “I dead for sure.” She said this with the air of certainty that only a malingerer uses.

Personal history

It’s obvious the subject learned her greed from her parents. Her father gave up the tranquil life of being a shepherd in Greece in order to carry on cross border contraband of stolen bicycle parts. It was the least he could do to keep his neurotic wife in her lavish smoking habit.

The subject was the youngest of eight children, a spoiled brat no doubt.

Examination

Her eye contact was non-existent as she kept on burying her face in a Kleenex tissue. She was very hostile and anxious when I grabbed away the box of Kleenex and hid it in my microwave oven.

She indicated she could do nothing at all at her husband’s deli. “I completely useless.”

Not surprisingly on further questioning, however, she was readily able to count pastrami sandwiches by sevens, from 100 down to 91.

And to avoid any misunderstanding, I asked her three times whether indeed her father knew how to fix bicycles, and she was adamant he did.

Impression

This lady is your classical malingerer. She falls squarely within the parameters of the F.T. Test (Fakers’ Test). I speak of course of the seminal test developed by noted psychiatrist, professor August Strondenberg of the University of Gothenburg. We have a  perfect match with all the professor’s DSM-XVL indicia, which lead to the inescapable conclusion of malingering:

1) Her father was a disenchanted shepherd who developed a fetish with bicycles;

2) Her mother was a chain smoking seamstress;

3) The subject spent years working in a delicatessen;

4) Said subject’s favourite number is seven; and

5) She married a man called Victor who as the name suggests is a megalomaniac.

I have no doubt that once this lawsuit ends, the subject will achieve a complete recovery of these alleged injuries.

Sincerely,

Mortimer (Syd) Golden

You get the picture.

I have an idea to save litigants thousands of dollars in experts’ fees. Why not allow the lawyers to write the reports for both sides? I can do it easily. I would muster the best talents of each of these usual suspect experts and I would conscientiously prepare both reports under a different nom de plume. And my fee for both would be a lot less than what each currently charges for one report.

And of course, these reports would be 100 per cent objective as I would sign two of those mandatory forms, certifying that I am unbiased and neutral.

How’s that for justice?

Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His book Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging is available on Amazon, (e-book) and paper version. Visit www.marcelshumour.com. Follow him @MarcelsHumour.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


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