The plaintiff was injured in a rear-end motor vehicle accident. Following a nine day trial, the defendant brought a threshold motion while the jury was deliberating. The jury returned its verdict and awarded the plaintiff nothing. Justice Brownstone granted the threshold motion, finding that the plaintiff’s claim for non-pecuniary damages was barred because he did not prove that his injuries fell within the exception set out in s. 267.5(5) of the Insurance Act.
The plaintiff alleged that he suffered chronic pain, headaches, and psychological impairment as a result of the accident. The accident was incredibly minor and there was almost no damage to the vehicles. Justice Brownstone found that the plaintiff’s evidence was neither credible nor reliable. His testimony at trial and his statements to physicians between the time of the accident and trial contained wide variations when describing his symptoms and their causes, and was often inconsistent with medical records. Justice Brownstone did not accept the evidence of the plaintiff’s expert, Dr. Getahun, as it was largely based on the plaintiff’s own reporting, which was not reliable. Justice Brownstone preferred the opinion of the defendant’s expert, Dr. Finkelstein, who had more medical records available to him and based his opinion more on the records that the plaintiff’s reporting.