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“Unconstitutional” ICBC Expert Witness Rule Struck Down By BC Supreme Court

Written by ERIK MAGRAKEN on . Posted in BCSC Civil Rule 11.

Earlier this year BC’s Attorney General surprised the legal community with changes to the BC Supreme Court Rules limiting the number of expert reports in motor vehicle injury prosecutions.  The rule changes were brought without notice to the profession, were retroactive and were drafted to save a primary litigant, ICBC, money at the cost of the substantive rights of individuals before the judiciary.

In April a legal challenge was launched arguing these changes were unconstitutional.

Today the Chief Justice of the BC Supreme Court ruled on challenge and declared that these changes were “of no force and effect” due to their unconstitutional nature.

Mr. Justice Hinkson provided the following reasons finding these changes were out of line:

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Plaintiff Who Failed to "Re-Serve" Opposing Party's Expert Report Cannot Rely On It

Written by admin on . Posted in BCSC Civil Rule 11.

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.

Responding Expert Reports Must Be Tendered in Party's Case in Chief

Written by admin on . Posted in BCSC Civil Rule 11, Civil Procedure, Uncategorized.

Interesting procedural reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing when a party must tender responding expert reports.
In today’s case (Cambie Surgeries Corporation v. British Columbia) the Plaintiffs sought to tender their responding expert reports after the Defendant tendered their expert reports. The Defendant objected noting the reports should properly be admitted as part of the Plaintiff’s case in chief.  In agreeing with the Defendant Mr. Justice Steeves provided the following reasons:

[9]             It seems to me that the Rules are intended to promote efficiency in a trial. Historically, expert opinion evidence was given simply by a notice, as described in Abell v. British Columbia (Greater Nanaimo Water District), 1979 CanLII 657 (BC SC), but now there are strict requirements. With respect to reply reports, they are intended to avoid parties putting in reply reports at trial for the first time. Here the plaintiffs’ position would not bring back that situation entirely; however, it would at least open up the risk of sur-reply expert reports, thus possibly lengthening these proceedings.

[10]         Overall I conclude that, while it is always open to a party to apply to apply to call rebuttal evidence, a responding expert under the Rules is quite a different part of a trial. In short, a responding expert report is not rebuttal evidence in the usual sense of being in response to unanticipated evidence. In my view, as with all anticipated evidence, the plaintiffs must call and exhaust their evidence. This is paraphrasing of the judgement in Commercial Electronics v. Savics, 2011 BCSC 162. The plaintiffs will examine their expert witnesses about their reports, including responding reports as part of their case.

"All Actual Instructions Received by the Expert" Required by BC Rules of Court

Written by admin on . Posted in BCSC Civil Rule 11, Civil Procedure.

Reasons for judgement were released today (Pinch v. Hofstee) addressing the scope of expert instructions that need to be disclosed to make expert evidence admissible.  In short the Court noted that a “paraphrased summary of instructions” was insufficient.
In noting what Rule 11-6(1)(c) requires Mr. Justice Burnyeat provided the following reasons:

[1]             The parties presented a number of expert reports.  While some of the expert reports attached the instructions that were provided to the expert by counsel, some of the expert reports merely provided a paraphrased summary of instructions.

[2]             Rule 11‑6 of the Supreme Court Civil Rules provides that, for an expert report to be tendered in evidence, it must set out a number of matters including “the instructions provided to the expert in relation to the proceeding” [Rule 11‑6(1)(c)].

[3]             In order to meet the requirement of Rule 11‑6(1)(c), all actual instructions received by the expert should be appended to the expert report that is to be tendered into evidence.  It is not sufficient to satisfy Rule 11‑6(1)(c) to have the expert either to paraphrase the instructions received or to include some but not all of the instructions received.

[4]             The parties will be at liberty to file affidavits setting out the instructions that were provided to the experts who have provided reports which have now been tendered into evidence.

Worsening Prognosis Insufficient To Allow Late Defence Medical Exam

Written by admin on . Posted in BCSC Civil Rule 11.

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.

Responsive Report Rule "Is Not a Licence" For Failing to Prepare Expert Evidence

Written by admin on . Posted in BCSC Civil Rule 11, Uncategorized. 112 Comments on Responsive Report Rule "Is Not a Licence" For Failing to Prepare Expert Evidence

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, criticizing and restricting the practice of allowing late defense medical examinations in the guise of obtaining ‘responsive’ reports.
In last week’s case (Timar v. Barson) the Plaintiff was injured in a 2011 collision and sued for damages.  The alleged injuries included a concussion.  In the course of the lawsuit the Plaintiff served a psychologists report which found the plaintiff suffered from a variety of cognitive issues.  As the 84 day deadline approached the Plaintiff served the balance of his reports which included a psychiatric opinion that the Plaintiff suffered from an ongoing concussive injury from the collision.  The Defendant applied for an independent medical examination beyond the 84 day deadline arguing they needed a responsive opinion in the face of these new reports.  Mr. Justice Smith disagreed and in doing so provided the following reasons criticizing the ‘wait and see’ approach in defendant’s exercising their rights for independent medical exams:

[19]         Rule 11-6(4) establishes a notice requirement for responsive evidence, but it does not exempt any party from the basic notice requirement in R. 11-6(3). In other words, it is not a licence for any party to wait until they have seen the other’s expert reports before deciding what expert evidence they need to obtain or rely on. Where each party has properly prepared its case and used the rights given by the Rules to discover the other party’s, responsive reports under R. 11-6(4) should rarely be necessary and IME’s for the purpose of preparing such reports should be rarer still.

[20]         A party seeking an IME after expiry of the deadline in R. 11-6(3) must, as stated in Luedecke,  satisfy the court that the examination is necessary to properly respond to an expert report served by the other party and not simply to respond to the subject matter of the plaintiff’s case.

[21]         However, other factors beyond the meeting of that evidentiary threshold must be considered. The principle one that emerges from virtually all the cases is the extent to which the party seeking the examination can claim to be truly surprised by the expert evidence served by the other party: Jackson at para. 27; Compton v. Vale (4 June 2014), Kelowna M95787  at para. 11 (B.C.S.C.). Defendants who delay obtaining or serving expert evidence until after the plaintiff’s evidence is received, then attempt to introduce all of their expert evidence as response, do so at their peril: Crane v. Lee, 2011 BCSC 898 at para. 22; Gregorich v. Gregorich (16 December 2011), Victoria 09-4160 at para. 11 (B.C.S.C.)…

[31]         A defendant in a personal injury action must therefore know that the plaintiff will have to rely on medical evidence if the matter proceeds to trial. Knowing that, the defendant must consider whether an IME is required in order to obtain a report that can be served at least 84 days before trial pursuant to R. 11-6(3). In order to determine that and to identify the type of medical expert to involve, the defendant must determine what the plaintiff is saying about his or her condition. An examination for discovery is the obvious, most effective and most important way to do that.

[32]         The defendant in this case chose not to exercise its rights under the Rules. It did not conduct an examination for discovery and made no effort to obtain a timely IME. In the absence of such efforts, I must hold that the Master erred in permitting the defendant to use R. 11-6(4) as a means of obtaining its first medical evidence. In the limited time she had to deal with the application, the Master failed to fully and properly consider the limited purpose of R. 11-6(4) and its interaction with other rules as they affect actions of this kind.

 

BC Court of Appeal Criticizes Consultation Reports Being Shoehorned As Expert Reports

Written by admin on . Posted in BCSC Civil Rule 11, Civil Procedure. 112 Comments on BC Court of Appeal Criticizes Consultation Reports Being Shoehorned As Expert Reports

Reasons for judgment were released today by the BC Court of Appeal criticizing and restricting the practice of shoehorning physicians consultation reports into evidence as expert opinion.
In today’s case (Healey v. Chung) the Plaintiff was injured in a 2005 pedestrian/vehicle collision.  At trial he Plaintiff claimed it was a ‘catastrophic accident’ and sought damages between $485,000 and $1,037,000.  The trial judge rejected much of the Plaintiff’s evidence and awarded damages of just over $50,000.
In the course of the trial the Defendant introduced consultation reports of treating medical practitioners into evidence.  These did not meet the strict requirements of Rule 11-6.  The Plaintiff objected but the trial judge allowed the reports to be entered.  In finding this was improper and ordering a new trial the BC Court of Appeal provided the following reasons:

[19]         It is well established that clinical consulting reports, without more, may not be admitted for the validity of opinions expressed in them…

[21]         It is true, as the respondent contends, that Seaman and F.(K.E.) are cases in which the opinion sought to be adduced was found in clinical records that were voluminous, but I do not consider that circumstance detracts from the principle that a clinical record containing an opinion, such as these consulting reports, must substantially comply with the requirements of the Rules in order to attract the exception to the usual rule for examination of witnesses spoken of by Mr. Justice Hutcheon.

[22]         The respondent contends that she gave notice to Mr. Healey of her intention to use the letters, that Dr. Kuo knew of the qualifications of the two doctors, and that other deficiencies were “minor”. She says Mr. Healey was obliged to express his objections as required by R. 11-6(10) and (11).

[23]         Forthrightness between counsel is favoured and is to be expected in litigation. Yet I cannot say there was anything to which we have been referred that put the positive legal duty on Mr. Healey to object under those Rules for the reason that the consulting reports sent to Dr. Kuo and disclosed as part of her clinical records were simply not ‘expert reports’ as regulated by the Rules. While they may be professional opinions from one doctor to another in the course of treatment, the impugned documents do not comply with R. 11-2; I do not consider they carry the basic hallmark of an ‘expert report’, being an opinion intended by the author, at some point, to be presented for the assistance of the court. Significantly, they contain none of the information that is essential to qualification of the author as an expert, nor the information reviewed by the author by which the court may assess the cogency of the opinion.

[24]         As I do not consider that these clinical records can be considered to be ‘expert reports’ as that term is used in the Rules, entitled to the privileged treatment for receipt of hearsay evidence discussed by Mr. Justice Hutcheon, I conclude that R. 11-6(10) and (11) did not require a notice of objection.

[25]         In the alternative to the two documents coming within R. 11-6, Ms. Chung says the judge could have exercised his discretion and admitted the documents as opinions under R. 11-7. Rule 11-7 provides latitude to a judge to receive opinion evidence that is not included in an expert report:

(1)   Unless the court otherwise orders, opinion evidence of an expert, other than an expert appointed by the court under Rule 11-5, must not be tendered at trial unless

(a) that evidence is included in a report of that expert that has been prepared and served in accordance with Rule 11-6, and

(b) any supplementary reports required under Rule 11-5 (11) or 11-6 (5) or (6) have been prepared and served in accordance with Rule 11-6 (5) to (7).

…

(6)   At trial, the court may allow an expert to provide 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.

                                                                        [Emphasis added.]

[26]         Ms. Chung does not contend the judge exercised his discretion under R. 11-7(1). Her approach is consistent with the record that shows the judge was not asked to exercise his discretion, and it is consistent with Ms. Chung’s submission at trial which approached the question as one of compliance with R. 11-6. We are invited, however, to approach these documents as admissible in the exercise of discretion.

[27]         I do not consider that this is an appropriate case for us to engage for the first time in a full analysis of discretion, so as to draw our own conclusions. At trial the judge did not consider his R. 11-7 discretion and accordingly the possibility of exercising discretion is without his expansion. In XY, LLC v. Zhu, 2013 BCCA 352, 366 D.L.R. (4th) 443, Madam Justice Newbury for the Court adopted this description from Perry v. Vargas, 2012 BCSC 1537 at para. 22:

In my view the discretion provided for in R.11-7(6)(c) must be exercised sparingly, with appropriate caution, and in a disciplined way given the express requirements contained in Rules 11-6 and 11-7. That is, the “interests of justice” are not a reason to simply excuse or ignore the requirements of the other Rules. There must be some compelling analysis why the interests of justice require in a particular case the extraordinary step of abrogating the other requirements of the Supreme Court Civil Rules. None was provided.

[28]         Adopting that approach, in my view this is not a case for us to exercise the discretion that was available to the judge under R. 11-7.  There was ample medical evidence before the court, absent the opinions from these documents, to guide the trial judge in findings of fact. Further, it was open to the defendant to develop her own body of medical opinion and to advance it in proper form, including as to the required description of qualifications and experience and listing of opinion sought and matters considered. I see no compelling reason to derogate from the requirements of either R. 11-2 or R. 11-6 in this case. To do so, in my view, would admit into evidence opinions that were not crafted for that purpose and that are without the necessary information to permit consideration of their substance and effect in the context of the issues before the court.

[29]         Last, Ms. Chung contends that the two documents, in any event, were inconsequential in the judge’s reasons, and thus the admission of these documents had little impact on the outcome of the case.

[30]         One of the issues at trial was the assertion by Mr. Healey that he suffered from depression caused by the accident. This allegation bore upon the assessment of damages. To support this allegation was an expert report from Dr. O’Shaughnessy. Based upon the medical records and his interview with Mr. Healey, Dr. O’Shaughnessy diagnosed Mr. Healey as having an Adjustment Disorder with anxiety and an Adjustment Disorder with depressed mood. Yet the judge rejected all allegations of depression and instead relied upon the two consulting reports, saying:

[58]      Mr. Healey stated that he suffered from depression because of the accident. Depression was not reported in his post-accident symptomatology until 2008. Dr. Kuo’s records do show that in 2003 she concluded that Mr. Healey had symptoms consistent with depression. This reporting, however, preceded the accident, and according to the psychiatric specialists Dr. Kuo referred Mr. Healey to in 2009 and 2010, no evidence supported any Axis 1 diagnosis in the DSM-IV, and no symptoms met the criteria for post-traumatic stress disorder.

[31]         I would first observe that Dr. Truong’s report cryptically states “Axis 1: Adjustment d/o with depressive symptoms – in remission” and by so saying Dr. Truong’s report appears to be inconsistent with the judge’s statement: “according to the psychiatric specialists [Dr. To and Dr. Truong] no evidence supported any Axis 1 diagnosis”. Perhaps this exemplifies the effect of non-compliance with the requirements for expert reports, as the judge drew from the report a categorical absence of any Axis 1 diagnosis which appears to be inconsistent with Dr. Truong’s report. Setting that discrepancy between the judge’s assertion and the notation in Dr. Truong’s report aside, it is clear from the judge’s para. 58 that he put weight on the consulting reports and drew conclusions from them adverse to Mr. Healey. In other words, they were consequential in the judge’s reasoning; one cannot say the reports had little bearing on the outcome, in my view.

 

Objections on Expert Qualifications Must Be Raised Under Timelines of Rule 11-6(10)

Written by admin on . Posted in BCSC Civil Rule 11.

Interesting reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the scope and timing of objections required under Rule 11-6(10).
In today’s case (Pausch v. Vancouver Coastal Health Authority) the Plaintiff tendered the report of an expert discussing the standard of care of MRI technologists.  The Defendant failed to raise an objection of the expert’s qualifications under the timelines set out in Rule 11-6(10).  The Defendant argued that this rule was “limited to objections on the contents of the report” and did not apply to expert qualifications.  Madam Justice Sharma disagreed and found the rule did apply to qualification objections.  In reaching this conclusion the Court provided the following reasons:

[13]         Turning to the question of whether Rule 11-6(10) and (11) applies to objections of qualifications, I conclude that it does.

[14]         In my view, no difference can be drawn between an objection to the admissibility of the report, and an objection to an expert’s qualification with regard to Rule 11-6(10). In order to be admissible, any opinion evidence must come from a properly qualified expert. Qualification is a prerequisite to admissibility.

[15]         The wording of Rule 11-6(10) and (11) is mandatory. In my view, the phrase “objection to the admissibility of the expert’s evidence” necessarily includes objections based on inadequate qualifications of the expert. Indeed, the expert’s qualifications are required to form part of his or her report:  Rule 11-6(1)(a) and (b). I find therefore, that the defendant here ought to have given notice of the objections to the expert’s qualifications.

The Court went on to find that, despite the lack of a proper objection, the Court retains “an overriding discretion to admit opinion evidence when the rules have not been followed, or refuse to admit it when there has been compliance.” and that “It is the duty of the trial judge to ensure evidence admitted onto the record is both relevant and admissible but the plaintiff has the burden of establishing that Mr. Myszkowski is qualified as an expert.” whether or not a timely objection was raised.

Failure To List Documents Leads To Expert Report Exclusion

Written by admin on . Posted in BCSC Civil Rule 11. 50 Comments on Failure To List Documents Leads To Expert Report Exclusion

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, excluding an expert report for failing to disclose a list of documents reviewed.
In today’s case (Lawrence v. Parr) the Plaintiff was involved in a 2010 collision and sued for damages.  The Plaintiff alleged that the collision caused some hearing loss.  Prior to trial the Defendant served a report from an otolaryngologist which opined that the hearing loss was not from the collision.  The report was criticized for a number of reasons including being served beyond the timelines required under the Rules of Court.  The report as ultimately excluded from evidence with Mr. Justice Tindale noting that the expert’s failure to list documents reviewed and relied on was a fatal error.  In excluding the report the Court provided the following reasons:

[126]     Rule 11-6 (1) states a number of mandatory requirements of an expert report. Dr. David’s report did not contain the certification required under Rule 11-2 (2) though that was remedied at a later date. It does not contain the instructions provided to Dr. David. His report is not clear as to the nature of the opinion being sought and the issues in the proceeding to which the opinion relates. But most importantly it does contain a description of the factual assumptions on which his opinion is based. There is not a comprehensive list of the documents that he relied on. Where he does discuss a document that he relied on he either makes vague, inaccurate or misleading references to that document.

[127]     I am mindful of Rule 11-7 (6) however. The admission of this report will cause prejudice to the plaintiff because despite a very lengthy cross-examination it is not clear what the purpose of Dr. David’s report was and what his factual assumptions were.

[128]     In my view, for all the above noted reasons Dr. David’s report and evidence at the video deposition are inadmissible.

BC Supreme Court Comments on Expert Report "Appendices"

Written by admin on . Posted in BCSC Civil Rule 11. 107 Comments on BC Supreme Court Comments on Expert Report "Appendices"

Sometimes expert witnesses attach lengthy appendices to their reports setting out the materials they have reviewed or interview summaries.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing this practice.
In today’s case (Maras v. Seemore Entertainment Ltd) a variety of expert reports were challenged prior to a lengthy jury trial.  The Court struck several reports and in doing so provided a good overview of the law addressing admissibility of expert reports at paragraphs 9-20 of the reasons.  In addressing the issue of expert report appendices Mr. Justice Abrioux provided the following comments:
[29]         As outlined in Rule 11-6(1)(e) and (f), an expert’s report should clearly delineate between “facts and assumptions” and “opinion”. To the extent there is information in an appendix that is a fact or assumption upon which an expert relies, then that should be contained in the “facts and assumptions” section of the report itself. Likewise, to the extent an appendix contains an opinion, then that should be set out in the “opinion” section of the report. Generally speaking, appendices to the report should be streamlined, and only include what is necessary for the formulation of the expert’s opinion and/or the facts and assumptions upon which it is based.
[30]         An appendix containing summaries and comments, to the extent that it does not contain an opinion or underlying facts and assumptions, is no more than a working paper which does not need to be included in the report itself. It should remain in the expert’s file, which is producible pursuant to Rule 11-6(8). As with any other document forming part of the expert’s file, it can be the subject of cross-examination.
[31]         In deciding the threshold question of admissibility, I am also of the view that there is some assistance to be obtained from decisions of this court or administrative tribunals which consider the reasonableness of an expert’s fee on an assessment of costs. Although I recognize that the purpose of the analysis is different, the underlying issue is similar, that is, the necessity of the expert’s report and its assistance to the trier of fact.
[32]         In that regard, there have been many instances in which Registrars or Masters of this court, when considering whether the amount charged by an expert is properly payable by the opposing party, have commented as to whether the charges were reasonable in the circumstances. Experts’ charges have been disallowed or reduced for a variety of reasons, including when the expert’s report contained improperly extensive narrative: Wheeldon v. Magee, 2010 BCSC 491 at paras. 20-29; Bodeux v. Tom, 2013 BCSC 2327 at paras. 20-23.
[33]         Certain British Columbia Workers’ Compensation Appeal Tribunal (“WCAT”) decisions have also discussed the usefulness, or lack thereof, of lengthy appendices to expert reports. These comments appear within the context of WCAT’s discretion to order reimbursement for expert reports on the basis of a “reasonableness” analysis. For example, in WCAT-2013-02657 at paras. 75-85, it was said:
[85]      In summary, although Ms. Gallagher’s report was helpful in my deliberations, and it was reasonable for the worker to obtain it, I find the reasons for its expense to be inadequate. The appendices to the report detailing the worker’s test results were not helpful to lay person. This information is summarized (or should be) in the body of the report. A summary of the evidence contained in the appendix, again, is not useful or appropriate considering it is on the claim file, and in the body of the report. …
[Emphasis added.]
Similar examples commenting on the reasonableness of lengthy appendices include WCAT-2012-01770 at paras. 105-107, and WCAT-2012-02617 at paras. 53-58.
[34]         In a decision rendered since my oral ruling in this case, Madam Justice Russell recently summarized the law in this province regarding the scope of disclosure of an expert’s file pursuant to Rule 11-6(8): Conseil scolaire francophone de la Colombie-Britannique v. British Columbia (Education), 2014 BCSC 741 at paras. 25-51 [CSF]. After a thorough review of the relevant jurisprudence, she held:
[41]      With regard to the scheme of the R. 11-6(8), I note that R.11-6(8)(a) enumerates a number of documents that must be served on a requesting party immediately, namely written statements or statements of facts on which the expert based his or her opinion; records of independent observations made by the expert in relation to the report; data compiled by the expert in relation to the report; and the results of any tests conducted by the expert or inspections conducted by the expert.  Rule 11-6(8)(a) thus already requires production of the observations and analysis underlying the expert’s opinion.  Rule 11-6(8)(b) should therefore be read as requiring production of something more than the underpinning of the report.
…
[44]      My interpretation of R. 11-6(8)(b) thus takes a middle road between the broad scope of disclosure at common law and the narrow view asserted by the plaintiffs.  As I see it, on request pursuant to R. 11-6(8)(b), an expert must produce the contents of the expert’s file that are relevant to matters of substance in his or her opinion or to his or her credibility unless it would be unfair to do so.
[Emphasis added.]
[35]         The CSF decision, in my view, supports my conclusion that an expert’s report should be limited to the requirements set out in Rule 11-6(1). To the extent the recipient of the report requires production of further documents, then he or she is to follow the procedure in Rule 11-6(8).
[36]         I would add that if a party seeks production of the contents of the expert’s file earlier than the 14 days before trial provided for under Rule 11-6(8)(b)(ii) and meets resistance in that regard, this could form the basis for a disclosure application at a trial management conference pursuant to Rule 12-2(9)(q).