Where both physical, mental injury claimed, separate experts may be retained for each issue: court
The Superior Court for Ontario has allowed a defendant’s motion to compel a plaintiff, claiming physical and mental injury, to undergo two separate Independent Medical Examinations (IMEs) to have both aspects assessed by a specialist who is qualified to do so.
In Moore v. Jacob, 2022 ONSC 10, Tammy Lynn Moore claimed damages for having suffered physical and mental/psychological harm from a motor vehicle accident. She presented one report from her expert witness, a psychiatrist, in support for her claim. Jacob requested that Moore undergo two IMEs – one with an orthopaedic surgeon for the physical injuries and one with a neuropsychologist for the mental/psychological injuries. Moore refused and said she was willing to undergo only one IME. She claimed that since she only has one expert – a psychiatrist – to testify on her injuries, Jacob was also entitled only one expert who must also be a psychiatrist to respond to her expert’s report.
The court disagreed.
“Where both physical and mental issues are raised by the plaintiff, the respondent should be entitled to retain an expert to respond to each issue,” said Justice Thomas Heeney, the author of the decision. “It is not open to [Moore], or the court for that matter, to dictate to [Jacob] how they are to present their case,” he said.
The court also disagreed with Moore’s assertion that where she relies solely on one expert – a psychiatrist – that the defendant must likewise present a psychiatrist to answer to her expert’s report. The court said that while Moore’s psychiatrist may be qualified to comment on both physical and mental injuries, there is no justification to refuse Jacob his choice of expert simply because it is a different area of expertise. Jacob’s expert, a neuropsychologist, may in general be more qualified than a psychiatrist to opine on brain injury and its impact on cognition, said the court.
As such, the court ordered that Moore shall undergo both IMEs as requested by Jacob.
