Caselaw Update: Independent Medical Exams and Responding Reports
As previously discussed,¬†Rule 11-6(3) of the new BC Supreme Court Civil Rules requires expert reports to be served 84 days prior to trial. ¬†Rule 11-6(4) requires ‚Äúresponding‚ÄĚ reports to be served at least 42 days prior to trial. ¬†The issue of whether a Defendant is able to force a plaintiff to attend an ‚Äúindependent medical exam‚ÄĚ for the purpose of obtaining a responding report is currently being worked out by the BC Supreme Court.
Two further cases have been brought to my attention addressing this topic and with these the bulk of the judicial authorities to date demonstrate that it may be very difficult for a Defendant to force a late ‘independent‘ examination to obtain a responding report.
Both of the recent cases (Crane v. Lee and Boudreau v. Logan) involve ICBC injury claims. ¬†In both the Plaintiff served expert reports discussing the extent of their accident related injuries. ¬†The Defendants applied to compel the Plaintiff to attend an independent exam inside the 84 day deadline in order to obtain responding reports. ¬†Master Caldwell presided over both applications and dismissed them both. ¬†In doing so the Court relied on Mr. Justice Savage’s reasoning in Wright v. Brauer and ruled that that precedent was “on all fours” with the present applications. ¬†Master Caldwell repeated the following reasons from Mr. Justice Savage:
¬†¬†¬†¬†¬†¬†¬†¬†¬†However, at this point in time in the action, the defendants are limited to what Mr.¬†Justice Williamson referred to in¬†Kelly, supra,¬†as ‚Äútruly responsive rebuttal evidence‚ÄĚ.¬† The application must be considered in that light; the question on this application is not one of notice, but whether the Examination should be ordered to enable the defendant to file responsive evidence.¬† The authorizing Rule, 7-6(1) uses the term ‚Äúmay‚ÄĚ.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In¬†Kroll v. Eli Lilly Canada Inc.¬†(1995), 5 B.C.L.R. (3d) 7, Sanders¬†J., as she then was, noted that ‚Äútrue response evidence, does not permit fresh opinion evidence to masquerade as answer to the other side‚Äôs reports‚ÄĚ.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In¬†C.N. Railway v. H.M.T.Q. in Right of Canada, 2002 BCSC¬†1669, Henderson¬†J. considered the admissability of ‚Äúreply reports‚ÄĚ holding that only the portions of the reports that provided a critical analysis of the methodology of the opposing expert were admissible as responsive evidence.¬† The portions of the reports describing the authors‚Äô own opinions on the matters in issue were not admitted.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In this case, the defendants do not explain why an examination is required in these circumstances, other than a statement by a legal assistant that counsel says such is ‚Äúnecessary to properly defend this action and to respond to the reports of Dr.¬†Weckworth and Dr.¬†O‚ÄôConnor‚ÄĚ.¬† Master McCallum in¬†White v. Gait, 2003 BCSC 2023 declined to order an examination where it had not been shown why such was required to produce a responsive report.
These cases, in total, seem to stand for the proposition that a Defendant needs to have sworn evidence from the proposed medical examiner explaining why physical examination is required in order to provide a responding report (which is what happened in Luedecke v. Hillman). ¬†Absent this, late independent medical exam applications are being dismissed by the BC Supreme Court.
As of today’s date the Crane and Boudreau decisions are unpublished. ¬†As always I’m happy to provide a copy of these cases to anyone who could benefit from them. ¬†You can request a copy by filling out the form on this link.