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[10] In similarly broad terms, the position of the plaintiff was as follows:
• Plaintiff counsel emphasized their general discretion to present the plaintiff’s case in the manner plaintiff counsel considers advisable, and in this particular case, plaintiff counsel thinks it best to lead with testimony from a health care practitioner, (presented as a fact witness and participating or treating expert, as opposed to a litigation expert), who can speak knowledgably about chronic pain, and treatment of the plaintiff’s perceived chronic pain, before the plaintiff herself testifies.
• In particular, plaintiff counsel is concerned that, if the jury was presented with the plaintiff’s testimony in a vacuum, prior to hearing any other testimony clarifying the nature of chronic pain, and receiving any instruction from the court as to the nature, realities and corresponding legitimacy of chronic pain confirmed by the Supreme Court of Canada in Nova Scotia (W.C.B.) v. Martin, 2003 SCC 54 (CanLII), [2003] 2 S.C.R. 504, jurors might unfairly form a negative impression of the plaintiff based simply on the absence of ongoing organic/objective injuries. If that should happen, plaintiff counsel says it not only may be difficult to overcome that initial negative impression, (e.g., through subsequent evidence and instructions providing the jury with further information and education after the plaintiff has testified), but that subsequent plaintiff witnesses unfairly may be perceived by the jury in the same negative manner. In the circumstances, plaintiff counsel would have preferred to lead with the anticipated testimony of Dr Ogilvie-Harris, (an orthopaedic surgeon with apparent expertise in relation to chronic pain and chronic pain syndrome), or the testimony of another physician, but Ms Gilbert was the only health care practitioner available to testify during the first scheduled week of trial.
• As a “participating expert” rather than a “litigation expert”, the testimony of Ms Gilbert concerning her findings, conclusions and recommendations would not really be contingent on the plaintiff’s testimony at trial, and Ms Gilbert was capable of providing a helpful overview as to the manner in which the plaintiff may have been referred to other health care providers.
• In the submissions of plaintiff counsel, allowing the plaintiff to call one witness in advance of the plaintiff herself was a relatively modest concession to the plaintiff’s general entitlement to present her case in the manner the plaintiff thought best.