BC Injury Claims and "Responsive" Expert Opinion Evidence

Currently the law relating to the disclosure of expert opinion evidence is governed by Rule 40A of the BC Supreme Court Rules.   (click here to read my previous posts about the upcoming changes to the Rules of Expert Opinion Evidence).
If a party wishes to introduce expert opinion evidence at trial Rule 40A requires that “a copy of the statement is furnished to every party of record at least 60 days before the statement is tendered in evidence.”
One noteworthy exception to this is the rule of “responsive” opinion  evidence.  If the defence in a personal injury trial obtains a report that does not offer a fresh opinion but rather is an opinion that is ‘truly responsive to evidence introduced by the opposing party”  the 60 day notice period does not apply.
Reasons for judgement were released today by the BC Supreme Court dealing with this area of law.  In today’s case (MacEachern v. Rennie) “the plaintiff suffered traumatic brain injury when her head struck the side of a large tractor-trailer as she was walking or riding a bicycle along the side of King George Highway” in 2005.  One of the Defendants in the Plainitiff’s injury claim sought to introduce the report of a toxicologist which concluded that “the plaintiff was cognitively impaired from the ingestion of drugs at the time of the accident, and that she had permanent brain damage from drug abuse prior to the accident.”
This report was served outside of the requirements of Rule 40A.  The defendant tried to rely on the ‘responsive‘ evidence exception to Rule 40-A and have the report introduced into evidence despite its late disclosure (the report in fact was exchanged after the Plaintiff concluded her portion of the trial).
In refusing to enter the report into evidence Mr. Justice Ehrcke gave the following consice and handy definition of the law of rebuttal opinion evidence in the BC Supreme Court:
The right to introduce opinion evidence without notice is limited to rebuttal evidence that is truly responsive to evidence introduced by the opposing party, and cannot be used as a masquerade for introducing a fresh opinion: Sterritt v. McLeod (2000), 74 B.C.L.R. (3d) 371 (C.A.); Stainer v. Plaza (2001), 87 B.C.L.R. (3d) 182 (C.A.). Where a defendant elicits opinions in cross-examination of a plaintiff’s witness that were not in that witness’s report, the defendant cannot use his own elicitation to justify calling a defence expert to give an opinion on the topic without notice.