BC Injury Lawsuits and Expert Witnesses; Hired Guns Need Not Apply

I’ve written many times about the role expert witnesses play in injury claims.  From diagnosing injury, commenting on causation, prognosis, future care needs and disability expert witnesses play a crucial role in ICBC and other injury lawsuits.
In addition to experts called by the Plaintiff, the Rules of Court also permit the Defendant to retain their own experts in order to ‘level the playing field‘.
Expert witnesses owe a duty to the Court to present their opinions impartially and not to act as advocates for the side that hired them.  Sometimes, regrettably, experts forget this and stray into the field of advocacy.  When this happens the expert’s opinion can be rejected entirely or even be kept from entering into evidence in the first place.  Today reasons for judgement were released by the BC Supreme Court, Nanaimo Registry, discussing this area of the law.
In today’s case (Hodgkins v. Street) the Plaintiff was involved in a BC Car Crash and was awarded damages of just over $650,000.  (You can click here to read my post summarizing the trial judgement)  The parties could not agree on what damages should be awarded for  a tax gross-up award and management fees and a Court application was brought.
Both the Plaintiff and Defendant produced expert reports from economists.  The Plaintiff argued that the Defence report ought to be rejected in its entirety because the defence expert was a “partisan advocate“.  Mr. Justice Kelleher disagreed with this submission but before reaching this conclusion gave the following useful summary on the role of expert witnesses in BC litigation:

[6] In Tsilhqot’in Nation v. Canada (Attorney General), 2005 BCSC 131 at para. 32, the court referred to the duties and responsibilities of expert witnesses discussed in National Justice Compania Naviesa S.A. v. Prudential Assurance Co. Ltd. (“The Ikarian Reefer”), [1993] 2 Lloyd’s Rep. 68:

1.         Expert evidence presented to the court should be and should seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.

2.         An expert should provide independent assistance to the court by objective unbiased opinion in relation to matters within his or her expertise.  An expert witness should never assume a role of advocate.

3.         An expert should state the facts or assumptions on which the opinion is based and should not omit to consider material facts which detract from that opinion.

4.         An expert should make it clear when a particular question or issue falls outside of the expert’s expertise.

5.         If an expert’s opinion is not properly researched because insufficient date is available, this must be stated with an indication that the opinion is no more than a provisional one.

[10] I am in respectful agreement with the guidelines put forward in the Ikarian Reefer.  As trial judges, we must be wary of advocacy dressed up in the guise of an expert’s report.

If you are involved in an injury lawsuit and are served with an expert report by opposing counsel that you think is not objective the above passage should be kept handy.  You can challenge the opposing party’s experts if they contain “advocacy presented in the guise of opinion evidence” and such objections should be raised to keep reports that cross the line out of Court.

Advocacy, Advocacy in the Guise of Opinion, economists evidence, expert evidence, expert witnesses, Hodgins v. Street, Management Fees, Mr. Justice Kelleher, Objections to Expert Reports, Tax Gross Up

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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