ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘Rule 11-6(3)’

Plaintiff Who Failed to “Re-Serve” Opposing Party’s Expert Report Cannot Rely On It

May 30th, 2018

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that a party cannot rely on an opposing party’s expert evidence if they fail to ‘re-serve’ the report in the timelines set out in the BC Supreme Court Rules.

In today’s case (Karpowicz v. Glessing) the Plaintiff was involved in a collision and sued for damages.  The Defendant retained and served an expert report.  The Defendant eventually elected not to rely on the report and at trial the Plaintiff tried to use the report in support of his case.  The Court noted that the Plaintiff could not do so as he failed to serve the report as his own pursuant to the BC Supreme Court Rules.  In reaching this decision Madam Justice MacNaughton provided the following reasons:

[40]         On receipt of Ms. Beattie’s report, the plaintiff did not follow the usual practice of immediately re‑serving Ms. Beattie’s report on the defendant as a report on which he intended to rely. The plaintiff also did not attempt to re‑serve the report as a rebuttal report on which he intended to rely on the 42‑day deadline for doing so under Rule 11‑6(4).

[41]         In the process of compiling a joint book of experts’ reports, plaintiff’s counsel was advised by defence counsel that she no longer intended to call Ms. Beattie. In seeking to rely on the report, plaintiff’s counsel argued that as the report had been served, he was entitled to demand that Ms. Beattie be available for cross-examination under Rule 11‑7(3)(b) which states, in relevant part:

(3)  A party of record may demand that an expert whose report has been served on the parties of record under Rule 11-6 attend at the trial for cross-examination as follows:

(b) if the expert was appointed by a party under Rule 11-4 … any party of record who is adverse in interest to the party who appointed that expert may, within the demand period referred to in subrule (2) (a) of this rule, demand the attendance of the expert for cross-examination.

[42]         Plaintiff’s counsel did not refer me to any cases which supported his argument.

[43]         In my view, the plaintiff’s argument is just not supported by the rule. The rules with respect to tendering experts’ reports must be read as a whole, and it is the decision of a party to tender an expert’s evidence at trial which triggers the right of the other party or parties to demand the attendance of the expert for cross-examination.

[44]         For example, Rule 11‑6(1) sets out the formal requirements for a report that is to be tendered. Rule 11‑6(3) and (4) sets out the requirements for service and focus on a report that is to be tendered at trial. Rule 11‑6(6) deals with the requirements for a supplementary report in the event the expert changes his opinion with respect to an expert report that is to be tendered at trial. The focus is on tendered evidence.

[45]         The plaintiff has the burden of proving his case. The defendant is not required to prove anything and, as a result, may elect not to call any evidence and no adverse inference can be drawn from the failure to do so.

[46]         As an alternative argument, the plaintiff submits that I should exercise my discretion to waive the 84‑day deadline for delivery of Ms. Beattie’s report to allow the plaintiff to rely on her report and call her as his witness. He submits that the defendant will not be prejudiced as a result of the late delivery of Ms. Beattie’s report, as the defendants are aware of its content and are able to prepare to cross-examine her on short notice.

[47]         Rule 11‑7(6) describes when the requirements of Rule 11‑6 may be dispensed with:

(6) At trial, the court may allow an expert to provide [expert] evidence, on terms and conditions, if any, even though one or more of the requirements of this Part have not been complied with, if

(a) facts have come to the knowledge of one or more of the parties and those facts could not, with due diligence, have been learned in time to be included in a report or supplementary report and served within the time required by this Part,

(b) the non-compliance is unlikely to cause prejudice

(i) by reason of an inability to prepare for cross-examination, or

(ii) by depriving the party against whom the evidence is tendered of a reasonable opportunity to tender evidence in response, or

(c) the interests of justice require it.

[48]         These provisions are disjunctive, so if any one of them applies, then the report in question may be admissible. For that proposition I cite Kaigo Retirement Communities Ltd. v. Sawchuk Developments Company Ltd., 2014 BCSC 1858 at para. 15, and Perry v. Vargas, 2012 BCSC 1537 at para.s 14 to 15.

[49]         In this case, although the plaintiff did not specifically rely on 11‑7(6) or frame his arguments in terms of the reconsiderations in that rule, the plaintiff’s arguments are essentially that the non‑compliance with the 84‑day deadline is unlikely to cause prejudice and the interests of justice require a waiver of the deadline in this case. I accept that the defendant would not be prejudiced in preparing to cross-examine Ms. Beattie. However, I do not consider this an appropriate case in which to exercise my discretion to waive entirely the 84‑day deadline. In my view, the discretion in Rule 11‑7(6) was intended to abridge the timelines in the rules and not to waive them entirely.

[50]         The practice of re‑serving favourable opposing parties’ experts’ reports is not uncommon in personal injury litigation. It was a procedure which was open to the plaintiff in this case. In addition, the interests of justice in this case do not require a waiver. The plaintiff has obtained and is relying on reports from Jeff Padvaiskas, an occupational therapist, and from Niall Trainor, an expert in vocational rehabilitation. Admittedly, Ms. Beattie’s report is more current, but it does not address new issues and would be duplicative. If the plaintiff was concerned about the dates of his experts’ reports, it was open to him to obtain updated reports, and for these reasons, I conclude that the plaintiff should not be permitted to rely on Ms. Beattie’s report.


Worsening Prognosis Insufficient To Allow Late Defence Medical Exam

September 15th, 2015

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, finding that a Plaintiff’s failure to recover from injuries is not enough for a Defendant to secure a late defence medical exam.

In today’s case (Dzumhur v. Davoody) the Plaintiff was injured in a a collision and sued for damages.  In the course of the lawsuit the Plaintiff served an expert report opining that the Plaintiff ought to recover provided the injuries are responsive to recommended treatments.  The Defendant did not obtain a defence medical report and as the deadline approached for exchanging expert evidence the Plaintiff served an updated report suggesting the Plaintiff’s prognosis was poor.  The Defendant argued they ought to be entitled to a late exam in these circumstances but the Court disagreed noting the defence should have been alive to this possibility earlier.  In dismissing the requested late exam Master Muir provided the following reasons:

[13]         Further, I am not satisfied that the defendants can properly say they shall have been truly taken by surprise by the medical condition of the plaintiff. Dr. Caillier’s initial report was in 2013. It is couched in careful terms that said in essence: provided the plaintiff responds to the treatments prescribed, he should fully recover. Well, that is the very nub of the matter: will he or will he not respond to the treatments? Did he or did he not respond to the treatments? Obviously Dr. Caillier’s second report indicates that he did not

[14]         The defendant then had an opportunity to discover the plaintiff in May of this year, two weeks before the plaintiff saw his doctor. At the discovery, I am advised it was evident that the plaintiff was still playing soccer, but counsel was not able to say whether the plaintiff claimed to be pain free.

[15]         There is no basis that I can see on the evidence for the assertion that the second report of Dr. Caillier took them or should have taken them, perhaps more to the point, completely by surprise. The possibility existed that the treatments would not be successful. The defendant must be seen to have chosen to accept that risk without obtaining an IME before the 84-day deadline.

[16]         One of the important factors in these cases, as noted in Timar at para. 21, is whether the party can claim to be truly surprised by the condition of the plaintiff. Here it is my view that that is not the case. There is nothing that satisfies me that Dr. Bishop cannot do a responsive report to the report of Dr. Caillier without a complete IME of the plaintiff. As a result, the application is dismissed.


Late Defence Medical Exam May Be Ordered in Exceptional Circumstances

August 22nd, 2013

Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, addressing court orders for late defence medical exams.

In this week’s case (Jackson v. Yusishen) the Defendant brought an application for a ‘responsive’ functional capacity evaluation.  Mr. Justice Barrow dismissed the application finding that on the facts before him the evidentiary burden for a late exam were not met.  Despite this result the Court provided the following interesting comments addressing that a late defense medical exam may be justified in exceptional circumstances:

[15]         There are three rules engaged by this application. The Rules of Court distinguish between new or fresh expert reports and responsive reports. Rule 11‑6(3) provides that, unless the court otherwise orders, expert reports other than responsive reports must be served on all parties of record at least 84 days before the scheduled trial date.

[16]         Rule 11‑6(4) deals with responsive reports and provides that such reports must be served on every party of record at least 42 days before the trial date.

[17]         The third rule engaged by this application is Rule 7‑6, which provides that the court may order a person submit to an examination by a medical practitioner or another appropriately qualified person. An order under Rule 7‑6(1) is discretionary. While there are a host of factors that should be considered when exercising the discretion conferred by that rule, one of the factors might broadly be taken to be whether the examination sought will advance the litigation, in the sense of potentially yielding relevant evidence touching on a material issue.

[18]         In the context of a personal injury action, meeting that evidentiary threshold where the object of the examination is the eventual production of a fresh or new expert report will not usually be difficult. On the other hand, where the time limited for serving fresh or new expert reports has passed, and thus the only purpose of an independent medical examination is in furtherance of the production of a responsive expert report, the evidentiary burden will generally be more difficult to meet…

[32]         Although the evidentiary burden has not been met in this case, I acknowledge that, on occasion, there may be circumstances which might justify the ordering of an independent medical examination, otherwise than in support of the preparation of a responsive report. It may be that, in some cases, the court may anticipate or at least allow for the possibility that a fresh opinion would be exceptionally admissible, notwithstanding that the 84‑day deadline has passed. Although not framed that way in Luedecke, the issue may have arisen at trial after the production of the report that the master ordered. In this case, however, there is no basis to conclude that an independent medical examination is necessary to level the playing field.


Raising the Bar for “Resposive” Independent Medical Exams

June 19th, 2013

While the BC Supreme Court can order a Plaintiff to undergo an independent medical exam to allow the opposing party to obtain a ‘responsive’ report, a clear evidentiary foundation must exist in order for such an application to succeed.  Unreported reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, demonstrating this.

In the recent case (Becker v. Zetzos) the Plaintiff was injured in a collision.  In support of his claim he served a report from a physiatrist.   As trial neared the Defendant sought an order requiring the Plaintiff to undergo an independent exam with an orthopedic surgeon for a ‘responsive’ report.    This application was brought after the expiry of the 84 day deadline for conventional expert reports to be served.

In support of the application the orthopedic surgeon provided an an affidavit stating as follows:

In order for me to assist the court and properly prepare a rebuttal to the expert report of Dr. Giantomaso I must physically examine the Plaintiff and ask him the usual questions that a doctor would ask in order to elicit any information upon which to ground my expert rebuttal report.  I could not give a proper rebuttal opinion report of the Plaintiff which assist the court and opines on the movement, functioning, diagnosis, prognosis, distribution of symptoms, recommendations, suitability for work, and etiology of the Plaintiff without physically examining the Plaintiff and where appropriate palpating the Plaintiff.

In finding this evidence falls short of the mark, Master McCallum provided the following reasons:

[17]  In this case I say the evidentiary threshold has not been crossed.  Dr. Dommisse’s letter is simply saying that he cannot give a proper rebuttal opinion report to assist the court without examining the plaintiff.  In support of that position he goes through what seems to me to be simply a description of the work he would do if he were preparing a report in the first instance.

[18]  He has Dr. Giantomaso’s report.  He doe snot say, as he could have, what there is about that report that would lead him to think that he himself needs to examine the plaintiff.  The defendant has not met the evidentiary threshold to support the request for a physical examination of the plaintiff prior to preparation of a rebuttal report.

To my knowledge this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

 


More on Responsive Opinion Evidence Admissibility

August 13th, 2012

Reasons for judgement were published recently by the BC Supreme Court, Vancouver Registry, addressing responsive expert reports and the discretion of the Court to adjourn a trial to permit late expert evidence to be introduced.

In the recent case (Lennox v. Karim) the Plaintiff was injured in a 2003 collision.   87 days prior to trial the Plaintiff served a medico-legal report diagnosing the Plaintiff with a meniscal tear.  The Defendant obtained a report addressing this injury and served it on the Plaintiff.  This report was served in less than 84 days before trail.  The Plaintiff objected arguing this report was late and that it was not truly responsive.  Mr. Justice Armstrong disagreed and admitted the report finding that it was responsive, and if not, the trial should be adjourned to allow admission of the report to address the relatively late disclosure of the meniscal tear.  The Court provided the following reasons:

[38] In this case, Mr. Lennox failed to alert the defendant to the central issue of a torn meniscus. His pleadings indicated an injury of both knees without any reference in specific to the torn meniscus. This is significant in this case, because the plaintiff was under the obligation to obtain a court order to permit Dr. Stewart to testify and if that order had been applied for, the defendant would have been put on notice at an earlier time as to the issue which became central to this case.

[39] In my view the Leith report, in the words of Smith J., is not a freestanding medical opinion that ought to have been served under Rule 11-6(3). It is in its entirety a responsive opinion directed solely to one opinion of Dr. Stewart relating to the plaintiff’s medical condition, that being the torn meniscus…

[42] If I am wrong in this decision, it would have also been my further opinion that in the circumstances of this case the defendant would have otherwise been entitled to an adjournment of the trial to secure the medical report of Dr. Leith if it was not otherwise admissible under 11-6(4). It seems to me that 11-1(2) is purposely directed at requiring the plaintiff and defendant to avoid the last minute introduction of medical evidence in cases which may have proceeded for many years on a different track or a different theory. I note that neither of the experts described in the CPC report have been or are going to be called as witnesses in this case, but I am not required to deal with that issue.

[43] It seems to me that Dr. Leith’s report can simply be admitted and I can ignore those provisions which in my view are not appropriate.


Expert Report Excluded for Tardiness and Credibility Comments

June 14th, 2012

A short but useful analysis was set out in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry, addressing the admissibility of a tardy expert report.

In the recent case (Stanikzai v. Bola) the Plaintiff was injured in a 2007 collision.  In the course of the claim the Defendant served a medical report but did so out of the time required by Rule 11-6(3).  Mr. Justice Smith declined to exercise his discretion to admit the report under Rule 11-7(6) finding that the report “would not be of assistance in any event” noting the expert’s opinion improperly delves into credibility.  Mr. Justice Smith provided the following reasons:

[28] The opinions of Dr. Caillier and Dr. Yu are not contradicted by any other medical opinion. At trial, the defendant sought to enter a medical report from an orthopedic surgeon, Dr. Ponsford, that had not been served within the 84 day notice period required by Rule 11-6(3). I declined to exercise my discretion to shorten the required notice period and admit the report, largely because I found it would not be of assistance in any event.

[29] The essence of Dr. Ponsford’s opinion was that he was unable to provide a firm medical opinion because of what he regarded as inconsistencies and contradictions within the plaintiff’s history. Credibility is, of course, a matter for the court, not the expert witness.


The "Shoehorn" Prohibition To Responsive Defence Medical Exam Requests

February 29th, 2012

(Image via wikipedia)

One rule that has perhaps received more attention than other in recent years is Rule 11-6(4) in the context of Responsive Medical Exams.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this topic and coining the “shoehorn” prohibition to responsive independent medical exams.

In this weeks’ case (Turnbull v. Tarnohammadi) the Plaintiff was injured in a motor vehicle collision.  In the course of the lawsuit the Plaintiff was assessed by Dr. Salvian who expressed concern that the Plaintiff suffered from Thoracic Outlet Syndrome.  His records were exchanged in the litigation process.  As the expert evidence deadline neared the Plaintiff served a proper expert report setting out Dr. Salvian’s findings.

The Defendant then brought an application for the Plaintiff to attend a physician to obtain a ‘responsive‘ report.  Master Baker dismissed the application noting it should have been brought sooner and parties are not allowed to “shoehorn” a late request for a medical exam into the responsive evidence rule.  In dismissing the application Master Baker provided the following reasons:

[13] Dr. Salvian was consulted and gave a report which became part of the clinical records of the family doctor, Dr. Murphy.  The clinical records, including that report, were made known to the defence long ago.  In fact, Dr. Salvian’s, I will call it report number one, which was dated 2010, was listed in the plaintiff’s list of documents in April of 2011.

[14] In that report it is clear that Dr. Salvian, if he did not very specifically diagnose carpal tunnel syndrome or thoracic outlet syndrome — and I do not decide at this point whether he did or he did not — made it absolutely clear, at least to me, that that was a significant factor in his mind.

[15] On the last page of his report, page 20, he says:

In any event, it is my opinion that the carpal tunnel syndrome and the post-traumatic thoracic outlet syndrome and the soft tissue injury of the neck are directly caused by the flexion extension injury, …

He then talks a little more about spontaneous carpal tunnel syndrome.

[16] I also agree with Mr. Parsons that his latter report does not add significantly to that, not in such a fresh way that would justify surprise on the part of the defence.

[17] That being the case, I take Mr. Parsons at his word, and I agree it would have been perfectly appropriate had at some point before the 84-day deadline the defence requested an IME to deal with Dr. Salvian’s perspectives;  that would have been appropriate.

[18] To wait after that point is to — as I think one authority, perhaps Mr. Justice Macaulay used the phrase — “shoehorn” the opinion into a compacted, truncated chronology, i.e., the 42-day limit for a responsive report, when, in fact, it should have been anticipated well in advance of that and it should have been subject to the same 84-day rule.

[19] Again, nothing in this precludes the defence from delivering a responsive medical report.  It is just as in the Gregorich case, I do not see that it is necessary to do that to direct the independent medical examination.


Late DME Application Dismissed; Responsive Exam Limitations Discussed

January 10th, 2012

Helpful reasons for judgement were recently released by the BC Supreme Court, New Westminster Registry, dismissing a defence application to have a Plaintiff assessed by a neurosurgeon.  In short the Court found the application was brought too late in the claim and that there was insufficient evidence to justify a physical exam for a truly ‘responsive‘ medical report.

In the recent case (Dhaliwal v. Owens) the Plaintiff was injured in a 2009 collision.  The injuries included low back pain.  Surgery was anticipated but as time went on the Plaintiff experienced some symptom improvement and surgery became less likely.

In the course of the lawsuit the Defendants put the matter into fast track litigation (Rule 15).  They failed to obtain a medical report in a timely fashion.  When they finally did apply the 84 day service deadline set out in Rule 11-6(3) had come and gone.  The Defendants argued that they needed the report for responsive purposes and further that the cancellation of the Plaintiff’s anticipated surgery amounted to a change of circumstances justifying the late application.   Master Keighley rejected both of these arguments and dismissed the application.  In doing so the Court provided the following reasons:

[7]  Now, I had indicated earlier that it is likely that had this matter come to light a year ago, this application would not have been before me today.  What causes the problem is Rule 11-6(3) which requires that an expert report, in general terms, be delivered at least 84 days prior to the scheduled trial date.  The 84th day, I am told by counsel who have done the arithmetic, passed…almost a couple of weeks ago…

[14]  Now, this is not a situation, and we do sometimes see it, where the physician has either directly or indirectly provided evidence with respect to the necessity of a physical examination of a party.  There is nothing before me in the material to explain why a physical examination is required in this case other than the statements from the paralegal that I have referred to.

[15]  In the case of Wright v. Brauer, a decision of Mr. Justice Savage reported as 2010 BCSC 1282, Justice Savage considering similar circumstances said at paragraph 22

In my opinion, the bare assertion reported to a legal assistant in this case is insufficient to support an order under Rule 7-6(1) that the plaintiff attend the Examination, when the defendants are limited to providing response reports under Rule 11-6(4)”

Justice Savage dismissed the application and is reference to Rule 11-6(4) harks back to his remarks at paragraph 12 of that decision where he said:

Rule 11-6(4) was enacted to fill a lacuna in the Rules.  Under the former Rules, Rule 40A permitted parties to call expert evidence in reply without notice at trial.  In order for such evidence to be admitted, however, it had to be truly responsive to the expert evidence of a witness called by the opposing party.”

He noted that in the case before him, the defendants were, as here, limited by the Rule to what referred to as Justice Williamson in the case of Kelly v. Kelly (1995), 20 BCLR (3d) 232 “truly responsive rebuttal evidence” by virtue of the provisions of Rule 11-6.

[16]  Similarly, Mr. Justice Cullen in the case of Ludecke v. Hillman, 2010 BCSC 1538, considered an appeal from a master’s order which has allowed an examination to provide “truly responsive” evidence.  Justice Cullen upheld the master’s order determining that the necessary evidentiary foundation for the examination was found in the material before him.  In reaching that conclusion, he said:

“To reach the requisite threshold under Rule 11-6(4) the applicant must establish a basis of necessity for the examination to properly respond to the expert witness whose report is served under subrule (3) by the other party.”

[17]  The plaintiff’s injuries, it seems to me, have not really changed in this case.  She has more or less since the outset complained of low back pain, low back problems.  What has changed, if anything, in recent months is the decision of the medical practitioners treating her with regard to the advisability of surgery.  It appears that they have decided for the meantime that surgery is the less desirable option.  Notwithstanding that decision, the plaintiff continues to suffer pain to the extent that she remains, apparently, unable to work.  There has been ample time int his litigation, even before this change in the plaintiff’s circumstances, for the defence to seek and obtain evidence from a neurosurgeon or other specialist with respect to her condition.  Although the provisions of Rule 7-6 and its predecessor Rule were enacted to attempt to affect a level playing field between the parties with respect to medical evidence, I do not see that the defence will be prejudiced by being restricted to an opportunity to have Dr. Turnbull or another practitioner of their choice examine the available evidence and render an opinion at trial as to the appropriate treatment of the plaintiff’s injuries.  Overall, of course, I have been considering the issue of proportionality and in the particularly refined context of an application brought in a case governed by Rule 15-1.

[18]  The application is dismissed.

As of today this case is unreported but, as always, I’m happy to provide a copy of the reasons for judgement to anyone who contacts me and requests these.


Defence Psychatric Exam Request Dismissed for Being Brought Too Late

January 4th, 2012

Reasons for judgment were released last month dismissing an ICBC request to have a Plaintiff examined by a psychiatrist finding that the application was brought too late in the litigation and would unfairly balance the playing field should the Plaintiff need to respond to the examination.

In last month’s case (De Corde v. De Corde) the Plaintiff was injured in a 2007 collision.  She alleged physical injuries, a head injury and also “emotional distress“.

In the course of the lawsuit the Plaintiff agreed to be assessed by three physicians chosen by the Defendant (or their insurer ICBC).  Specifically a general practitioner, a neurologist and an orthopaedic surgeon.  The Defendant brought an application for the Plaintiff to also be assessed by a psychiatrist.  The application was brought with just barely sufficient time to have a report generated to comply with the time lines set out in the Rules of Court.

Master Bouck dismissed the application finding the medical playing field was already balanced and an additional report by a psychiatrist served on the cusp of the deadline set by the Rules of Court would be prejudicial to the Plaintiff.  The Court provided the following reasons:

[37] The overriding principle is that an independent medical examination ought to be permitted if necessary to ensure reasonable equality between the parties in their preparations for trial.

[38] In this case, there are at least two considerations that compelled the dismissal of the application.

[39] First, there is no basis to suggest that the defendant is at a disadvantage in terms of evidence.

[40] Second, the application is brought so close to trial that the plaintiff might be prejudiced (by the adjournment of the trial) if the order was granted.

[41] This is not a case where a new diagnosis or symptom has arisen since the last independent medical examination. Indeed, much of the information that is relied on by defence in this application was in that party’s possession before the plaintiff attended the examinations by Drs. Wahl and Moll.

[42] The plaintiff’s mental health is commented upon in all of the reports presented to the court. None of the various medical professionals have recommended psychiatric treatment or diagnosis. It is appreciated that the diagnosis of the plaintiff’s symptoms differs as between these medical professionals. However, regardless of the diagnosis, all of these professionals suggest a treatment plan. That plan ranges from simple reassurance to medication to counselling to future neuropsychological reassessments…

[45] In short, there is simply no basis to suggest that the evidence presented to date requires a psychiatric opinion in order to “level the playing field”. Experts on both side of this case make certain treatment recommendations that will probably lead to some resolution of the plaintiff’s mental health symptoms. Whether the plaintiff follows those recommendations goes to the question of mitigation.

[46] Another important factor to consider is the timeliness of the defendant’s request, particularly when the opinions of the three defence experts (let alone those of the plaintiff) have been known for several months.

[47] I accept the submission that given the type of specialist involved, the plaintiff would have been hard pressed to answer Dr. Solomon’s opinion in time for trial. Thus, the plaintiff may be compelled to seek an adjournment of the trial which is scheduled to occur nearly five years after the accident. Such a result would hardly be in keeping with a speedy resolution to the claim: Rule1-3.

[48] In considering the question of prejudice, I presumed that Dr. Solomons would be able to comply with the 84-day deadline. But that deadline is not really the issue. It is the deadlines that the plaintiff must meet that leads to the possible prejudice.

[49] The plaintiff need only demonstrate that an adjournment of the trial is a possibility: Critchley v. McDiarmid, 2009 BCSC 134 at paras. 21 and 22…

[62] Given the timelines that must be met under SCCR together with the common acknowledgment that psychiatric assessments are not so easily obtained on short notice, there appeared to be a real possibility that the trial would be adjourned to allow the plaintiff to address the defence’ s new expert evidence.

[63] Thus, an order requiring the plaintiff’s attendance at a psychiatric independent examination would result in an inequality of evidence favouring the defence. I have already made the same finding in the case at bar.


Late Defence Medical Report Inadmissible For Going Beyond Responsive Evidence Exception

July 7th, 2011

When the New Rules of Court were introduced last year changes were made to the timelines to exchange expert reports.  An 84 day deadline was set out in Rule 11-6(3) and a shorter 42 day deadline is set out in Rule 11-6(4) for “responding reports“.   The first reasons for judgement that I’m aware of were released today by the BC Supreme Court, New Westminster Registry, addressing whether to admit a late report under the “responsive evidence” exception.

In today’s case (Crane v. Lee) the Plaintiff was injured in a 2005 motor vehicle collision.  The Defendant ran a stop sign and admitted fault for the crash.   The Plaintiff’s expert provided evidence that she suffered from soft tissue injuries and a herniated disc.  The Defendant obtained an expert report which contradicted this finding and served this report less than 84 days before trial.  The Defendant argued that the report was responsive and should be admitted.  Mr. Justice Smith disagreed finding the report went beyond the narrow circumstances permitted in Rule 11-6(4).  In excluding the report the Court provided the following reasons:

[21] At the opening of the trial, counsel for the plaintiff objected to and sought a ruling on the admissibility of a medical report that the defendant intended to rely upon.  The report had not been served within the 84 days required by Rule 11-6 (3) of the Supreme Court Civil Rules, B.C. Reg. 168/2009.  Counsel for the defendant relied upon rule 11-6 (4), which reads:

(4)        Unless the court otherwise orders, if a party intends to tender an expert’s report at trial to respond to an expert witness whose report is served under subrule (3), the party must serve on every party of record, at least 42 days before the scheduled trial date,

(a)        the responding report, and

(b)        notice that the responding report is being served under this rule.

[22] Rule 11-6 (4) is intended to apply only to evidence that is truly responsive or in rebuttal to specific opinion evidence tendered by the opposite party.  It is not intended to provide defendants with a general exemption from the basic time limit for serving expert reports that is set out in Rule 11-6 (3).  Defendants who delay obtaining or serving expert evidence until after the plaintiff’s opinions have been received, then attempt to introduce all of their expert evidence as response, do so at their peril.

[23] In this case, I found that the report was not limited to true responsive evidence.  It stated the author’s opinion on the nature and cause of the plaintiff’s injury?the central issue that both sides had to address from the outset?and was based upon a review of all the medical records, including some not referred to by Dr. Field in his report.  As such, I considered it to be a free-standing medical opinion that ought to have been served pursuant to Rule 11-6 (3).  I ruled the report inadmissible, with the result that there was no expert evidence before me to contradict Dr. Field’s opinion.

The Court accepted the evidence from the Plaintiff’s expert and in assessing non-pecuniary damages of $100,000 Mr. Justice Smith provided the following reasons:

[33] On review of all the evidence, I find that the accident for which the defendant has admitted liability caused soft tissue injuries to the plaintiff’s neck and upper back, which eventually resolved, and a herniated disc in the lower back that continues to cause pain and limitation.  To the extent that the accident may have aggravated a pre-existing condition, I find that in the years immediately preceding the accident that condition was minimally symptomatic and there is no evidence that it would likely have become worse but for the accident.  I accept the uncontradicted evidence of Dr. Field that the plaintiff’s current pain is likely to be permanent…

[45] The injury the plaintiff suffered has had a significant impact on her enjoyment of life.  She has back pain on a daily basis, fluctuating according to her activities.  She has lost what was formerly a very active lifestyle, giving up some activities that she formerly enjoyed, while continuing some others on a reduced level, accepting the trade-off of increased pain.  The only medical evidence before me is that this condition is likely to be permanent. She also suffers severe anxiety while driving, particularly in situations similar to those that gave rise to the accident, although there is no evidence that this condition is necessarily permanent…

[49] Taking into account the effect of the plaintiff’s injuries on her lifestyle, the permanent nature of her pain and the psychological impact, including her driving anxiety, and considering the cases cited, I assess the plaintiff’s non-pecuniary damages at $100,000.