Tag: cross examination

BC Court of Appeal – Alleged Witness Financial Gain is Fair Game in Injury Claim Cross Examination

The BC Court of Appeal addressed the fair scope of witness cross examination with respect to alleged bias in reasons for judgement released last week.
In last week’s case (Mazur v Lucas) the Plaintiff was employed as a legal secretary for a Vancouver law firm.  While on disability leave she was involved in a collision.  She sued for damages alleging the collision related injuries prevented her from returning to work.
The Plaintiff was represented by a lawyer from the firm that she worked at.  In the course of the trial the firm’s Human Resources Manager testifed with respect to the Plaintiff’s “excellent work performance“.   The Defendant’s lawyer cross examined this witness, suggesting bias in that the firm may financially gain if the jury awarded significant damages as the claim was likely being prosecuted by the firm on a contingency basis.  Although this evidence did not lead to any harmful admissions the Plaintiff argued the cross examination was prejudicial.  The BC Court of Appeal found that this line of questioning was fair game and in reaching this conclusion provided the following reasons:
[21]         The respondents’ cross-examination opened by noting that Ms. Mazur was being represented by a lawyer from Clark Wilson. The respondents’ counsel put the suggestion to Ms. Morrison that personal injury cases are generally dealt with by contingency fee agreements and that Clark Wilson possibly stood to gain from any award Ms. Mazur received. Ms. Morrison stated she had no knowledge of the fee arrangement. Ms. Mazur’s counsel did not object to this line of questioning and even re-examined the witness in this area.
[22]         After the witness and the jury were excused, Ms. Mazur’s counsel asserted the questions were improper, suggesting counsel was insinuating that Ms. Morrison’s testimony was influenced by the likelihood that her firm had a financial interest in the outcome of the trial.  He asked the judge to tell the jury to disregard this evidence in her charge. Counsel did not make a mistrial application.
[23]          In her final charge to the jury, the trial judge referenced the cross-examination of Ms. Morrison and  instructed the jury as follows:
…The defendants say there is reason for Ms. Morrison to be biased in her evidence.  I should note, however, that while it is entirely up to you to decide if you thought Ms. Morrison had any reason to be biased in her evidence, that not only is there no evidence to support a suggestion that the law firm of Clark Wilson might benefit from this lawsuit, such a consideration is not relevant to your deliberations.  I do not believe [counsel for the respondent] was suggesting through her questions that you should draw such an inference.  She was merely reciting a number of factors that you might properly consider as to bias.  In any event, such a consideration, that is, whether Clark Wilson might benefit from this lawsuit, is irrelevant to your considerations.
[24]         There was no objection to this instruction. However, on appeal, Ms. Mazur submits this instruction was ambiguous, confusing and insufficient. She contends that the comments resulted in placing an irrelevant and highly prejudicial notion in the minds of the jury that any award would benefit Ms. Mazur’s lawyer.  Ms. Mazur believes the jury was influenced by the suggestion that the law firm stood to gain financially.
[25]         I agree with the respondents that the questions put to Ms. Morrison on cross-examination appropriately probed any potential bias arising out of her dual role as a witness from the law firm employing Ms. Mazur and as a management employee of the law firm representing Ms. Mazur. The cross-examination of a witness with respect to potential bias is a legitimate subject of questioning.
[26]         The judge’s instructions were straightforward and correct in law. She properly left the jury with the task of evaluating Ms. Morrison’s evidence and, in particular, of assessing whether her interest in portraying her firm in a favourable light compromised her objectivity. The judge also explained to the jury that there was no evidence to suggest that Clark Wilson had a pecuniary interest in the outcome of the case and, in any event, no basis on which it could find that any such interest might have influenced Ms. Morrison’s testimony.
[27]         I am of the view that the impugned instructions were comprehensible and unobjectionable. I am strengthened in this view by the fact that the appellant’s trial counsel raised no objection to them. Counsel was in a good position to assess the adequacy of the instructions in the context of the evidence and of the charge as a whole, and his failure to object is, in my opinion, telling. I would not accede to this ground of appeal.

Prior Expert Reports, Cross-Examination and Notice


When a Plaintiff is cross examined in the trial of a personal injury claim can opinions from medico-legal reports from prior litigation be introduced into evidence without complying with the notice requirements set out in the Rules of Court?  Reasons for judgement were recently released by the BC Supreme Court addressing this issue.
In the recent case (Hosking v. Mahoney) the Plaintiff was injured in three separate motor vehicle collisions.  The first collision was in 2000, the second in 2001 and the third in 2004.
The Plaintiff advanced claims for compensation as a result of all three collisions.  In the course of the first two claims the Plaintiff’s physician authored a medico-legal report in 2003 addressing the extent of her injuries.  The Plaintiff settled both these claims prior to her third collision.
The claim arising from the third collision did not settle and proceeded to trial.  At trial the Defendant introduced the prior medico-legal report during cross examination.  The Court allowed this and further permitted the previous opinion to go into evidence even though the usual notice requirements for the introduction of opinion evidence were not complied with.  In permitting this evidence to be introduced Mr. Justice Warren provided the following reasons:
[171] I found the medical opinion of Dr. Gurdeep Parhar, the plaintiff’s attending physician for the first two accidents and the author of the medical/legal report of March 10, 2003, important and difficult to resolve with the evidence and submissions of the plaintiff that she had largely recovered prior to the February 2004 accident.  This evidence was entered by the defendant when cross-examining the plaintiff and was not rebutted or varied by Dr. Parhar who was not called to testify.  The court is entitled to draw an adverse inference when a witness who could provide relevant evidence on an issue before the court, is not called.  In my view the defendant was entitled to rely upon the letter and opinion of Dr. Parhar without providing the usual notice.  It was a report prepared for and at the request of the plaintiff and it was identified and portions adopted by the plaintiff in cross-examination.  The plaintiff had the opportunity to call Dr. Parhar or evidence to rebut the opinion or to object to its introduction prior to its use in cross-examination.

More on Injury Claims, Credibility and Cross-Examination

When personal injury claims go to trial a Plaintiff will have their allegations of injury tested through cross-examination.  If this process reveals enough inconsistencies in the Plaintiff’s direct testimony it can result in a poor finding of credibility by the trial judge which in turn will likely effect the outcome of the case.  This was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Dempsey v. Oh) the Plaintiff was injured when his bicycle was struck by a van driven by the Defendant.  The Plaintiff sued for damages.  The issue of fault was admitted by the motorist leaving the Court to deal with the issue of value of the claim.  The Plaintiff sought damages for a variety of alleged losses including past and future loss of income.  The Court dismissed much of the Plaintiff’s claim finding that the accident caused little more than a mild whiplash injury.
The main reason behind this result was an unfavourable finding of the Plaintiff’s credibility.  Mr. Justice Myers found that the Plaintiff was not candid about his injuries and provided the following critical reasons:

[38]    As Mr. Dempsey’s counsel acknowledged in argument, Mr. Dempsey’s credibility is central to this case.  Having reviewed the medical evidence, I will now comment on that.

[39]    Mr. Dempsey’s description of his condition prior to his accident was contradicted by the clinical records of Dr. Mintz, the cross-examination of Dr. Mintz and the cross-examination of Mr. Dempsey.  I am mindful of the cautions with respect to the use of clinical records that N. Smith J. helpfully summarised in his recent decision in Edmondson v. Payer, 2011 BCSC 118, which was released after the case at bar was argued.  However, the differences between the clinical records and Mr. Dempsey’s testimony are not minor; in fact, they are quite glaring and significant.  Further, Dr. Mintz testified as to his notations and Mr. Dempsey adopted them in his cross-examination.

[40]    It is apparent from the medical records and evidence that Mr. Dempsey greatly downplayed his back problems prior to the accident.  In his direct evidence, he described it as minor aches and pains.  When confronted with his medical history he acknowledged that it was at times “excruciating”.

[41]    The description as “minor” also flies in the face of the pain medications that he was taking.  In his direct examination Mr. Dempsey said that he often threw away expired medication.  That evidence was contradicted in cross-examination.

[42]    When Mr. Dempsey was cross-examined on his pre-accident medical history, his constant response was to admit that he had had pain, but that he was able to manage it with the pain medication and therefore function.  However, even that was not correct.  On cross-examination, he agreed that the clinical records of Dr. Mintz were accurate and include complaints of inability to sleep, drive, sit and to stand on his right leg.

[43]    In his direct examination, Mr. Dempsey was adamant that he played hockey up to the time of the accident.  However, on cross-examination, when confronted with the medical records, he agreed that he had given it up several years before the accident due to concerns about his back.

[44]    Mr. Dempsey downplayed his use of heroin, and as I said, he falsely stated that he had stopped using it in April 2004 (above, para. 24).

[45]    Mr. Dempsey blamed the accident for his alleged near-complete inability to work for an extended period after the accident.  However, he never described why he could not use the phone to add to or farm his database and why he could not drive.  Simply put, while Mr. Dempsey said he had pain he never specified how it stopped him from being able to perform his job functions.

[46]    In the context of the defendant’s theory that Mr. Dempsey was spending time running another business he had incorporated rather than spending time on his real estate practice, he was cross-examined closely on a frequently recurring cryptic entry in his Day-timer.  He said he did could not remember what that referred to.  Given the number of times the entry appeared that is not credible, whether or not it did relate to another business project.

[47]    I do not find Mr. Dempsey to be a credible witness.  There is no reason to believe that he was more truthful about what occurred after the accident than he was about his condition before it.

For more on this topic you can click here to read my archived posts dealing with Plaintiff credibility in BC injury litigation.

Cross Examination Beats Up RCMP Officer's Injury Claim


As previously discussed, cross examination is one of the most important tools in a trial lawyer’s arsenal.  This tool can be used both during examination for discovery and trial.  Cross examination can be used to explore and weaken an opponents case.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, harshly criticizing an RCMP officer and largely rejecting his injury claim based on evidence elicited during an extensive cross examination.
In today’s case (Lee v. Jarvie) the Plaintiff was involved in a rear-end collision in 2004.  Fault for the crash was admitted.  The trial focused on the value of the Plaintiff’s claim.  The Plaintiff was in the midst of applying for the RCMP at the time of the crash.  He was injured but fortunately was able to complete his application and training and went on to be successfully employed with the police force.
ICBC accepted that the Plaintiff was injured but argued that his injury claim was exaggerated challenging “the authenticity of (the Plaintiff’s) claim“.  Mr. Justice Gaul largely accepted this argument and dismissed a significant portion of the claim.  The below are some of the critical words the Court had of the Plaintiff:
[46] Mr. Lee was vigorously cross-examined by counsel for the defendants. By “vigorous” I do not mean the questioning was improper or disrespectful of the witness. I find the extensive cross-examination of Mr. Lee successfully revealed a number of significant and illuminating facts that, but for their disclosure, the court would have been left with an inaccurate impression and understanding of Mr. Lee’s situation and condition…
[71] In addition to eliciting important facts that have placed Mr. Lee’s claim in a more fulsome context, counsel for the defendants was also able to expose a number of contradictions and inconsistencies in Mr. Lee’s evidence, of which I will address but a few…
[81] While I am hesitant to find Mr. Lee fabricated his evidence on this point, I do find him to be an unreliable and inaccurate historian with respect to the amount and frequency of medication he has been taking…
[86] In great measure I agree with the submission of the defence that Mr. Lee’s evidence shifted during the course of his testimony and at times contradicted what he had said previously at his examination for discovery. On occasion I also found myself simply disbelieving Mr. Lee….(some of his evidence) stretches the boundaries of belief beyond their limits…
[87] In general, I found Mr. Lee to be less than forthright during his evidence and on more than one occasion I found him to be deliberately evasive in answering the question asked of him…
[89] It was only on account of detailed and probing cross-examination that a number of important and salient facts relating to Mr. Lee’s claim were disclosed or clarified. These details placed Mr. Lee’s claim in a markedly different light to the one based solely on what he said in his examination-in-chief. This, in conjunction with the inconsistencies or contradictions that were exposed in Mr. Lee’s evidence, compels me to approach his evidence with caution and scepticism. In general, I am not satisfied with Mr. Lee’s evidence. Unless I have indicated otherwise in these reasons, where there is a conflict between Mr. Lee’s evidence and that of another witness, I have given greater weight to the evidence of the other witness.
Further to my previous posts on credibility, cases such as today’s are worth reviewing in full to get a sense of the types of factors trial judges take into consideration in weighing the evidence of a party.  Today’s case in particular is a good introduction to cross examination in injury claims because the Court reproduces extensive portions of the Plaintiff’s cross examination and explains the damaging effect this had on his credibility.

Challenging Opposing Witnesses: The Rule in Browne v. Dunn


(Update March 8, 2012 – The case discussed below was set for a new trial after the Court of Appeal found the trial judge made errors applying the law of mitigation, causation and credibility.  The Court of Appeal Judgement can be foud here)
Browne v. Dunn is an English case that’s almost 120 years old.  Despite it’s vintage its a case all British Columbian’s should be familiar with when going to trial.
The rule in Browne v. Dunn states that if you intend to contradict an opposing witness on a significant matter you must put the contradictory version of events to the witness on cross examination.  Failure to do so permits the Court to prefer the witness’ version over the contradictory version.  In practice, failure to follow the rule of Browne v. Dunn can prove damaging to a case and this was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Wahl v. Sidhu) the Plaintiff was involved in a significant collision in Surrey, BC in 2006.  The Plaintiff sustained various injuries.  At trial he sought over $1.1 million dollars.  Much of his claim was dismissed but damages of $165,000 were assessed to compensate him for physical and psychological injuries from the crash.
During the course of the trial the Defence lawyer argued that the Plaintiff was not credible and was exaggerating his claim.   The lawyer relied on evidence from various treating medical practitioners who had negative opinions about the Plaintiff’s efforts and argued that “the plaintiff is intentionally faking symptoms“.   The Defence lawyer did not, however, cross examine the Plaintiff with respect to these witnesses allegations.  Mr. Justice Chamberlist relied on the rule in Browne v. Dunn and refused to place any weight on these challenges to the Plaintiff’s credibility.  Specifically the Court provided the following useful comments:
[213] I wish to comment on what occurred and what did not occur with respect to the evidence of Mr. Wahl at trial.  My notes of his evidence, particularly his evidence given under cross-examination, indicate that negative comments made by the various treators and Mary Richardson and Gerard Kerr were not put to him under cross-examination so that he would have an ability to deal with that evidence.  It is my view that the witness must be confronted with these opinions before the opinion can be properly dealt with (Browne v. Dunn, (1893) 6 R. 67 (H.L.)).  This is especially required in a case such as this where the defence submits that the plaintiff, in this case, is not motivated to get better and that the credibility of the plaintiff is at issue.
[217] The defence, in this case, called Dr. Bishop as a witness. …As indicated earlier Dr. Bishop was originally retained by the plaintiff but did not call Dr. Bishop at trial.  The defence made a point of filing Dr. Bishop’s reports and defence called her evidence as part of its case.  In the defence written submissions, the defence maintains that “her evidence makes it clear that she is of the opinion that the plaintiff is intentionally faking symptoms”….

[219]     It is important to note the first lines of the evaluation of effort where Dr. Bishop said, and I repeat:

. . . Although effort testing of itself cannot determine motivation as submaximal effort may be multifactorial in origin (e.g. fear of pain, anxiety with regard to performance, perception of dysfunction, need to demonstrate distress, etc) . . .

That finding cannot be relied upon, in my opinion, by the defence when the particulars of those conclusions were not put to the plaintiff when he was on the stand….

What Stephen Colbert Can Teach Lawyers About Cross Examination

Cross examination is one of the more powerful tools at a lawyers disposal.  It allows a lawyer to use leading questions to suggest the answer to the opposing witness.   Knowing what admissions will help or hurt the case, a lawyer can tailor a series of leading questions designed to advance their clients interests.  So what can Stephen Colbert teach a lawyer about cross-examination?  The answer is a lot.
Many lawyers fail to use leading questions when cross examining.  In failing to use this advantage lawyers let witnesses control the flow of information and potentially allow for more damaging answers to come out.  Controlling a witness with leading questions can minimize this risk.
Few people use leading questions better than Stephen Colbert.  When interviewing his guests he often gets them to admit to ridiculous facts.  These ‘admissions’ are obtained through leading questions.  The guests often agree even when the substance of the admission is outrageous and not accurate.  You can click here to access Stephen’s Interviews and see how leading questions can lead to helpful (or in Stephen’s case, amusing) answers.

One of the Best Lawyers of All Time Demonstrating the Art of Cross Examination

Cross examination is one of most important skills of a trial lawyer.  While there have been many useful texts written on the subject there is no better way to learn than seeing an effective cross-examination in action.
Gerry Spence is considered by many to be one of the best lawyers of all time.  Here is a great video of Mr. Spence demonstrating a cross-examination before a class in Ann-Arbor, Michigan some 25 years ago.
In this exercise the Defence witness had provided evidence supporting the Defendant’s case that they were not negligent.  Mr. Spence only makes one point in this clip; that this witness used the services of a ‘witness-consultant‘ before testifying.   Watch how much damage is done to this witness’ credibility with this one simple point brought out over the course of several very effective minutes.

Do Parties Have to Disclose Documents They Will Use to Impeach Opposing Expert Witnesses?


When a party to a personal injury lawsuit wishes to use documents at trial those documents have to be disclosed to the opposing side as per the BC Supreme Court Rules otherwise the evidence may not be admissible.  Two recent cases from the BC Court of Appeal have clearly highlighted this.  Today, reasons for judgement were released by the BC Supreme Court considering the scope of documents that need to be disclosed.
In today’s case (Beazley v. Suzuki Motor Coroporation) the Plaintiff called a witness to give expert evidence.  The witness testified that he had limited knowledge of something known as the “Critical Sliding Velocity standard” and that he had “never proposed such a standard to the National Highway Traffic Safety Administration“.
On cross-examination the Defence lawyer produced a letter written by the witness addressed to the National Highway Traffic Safety Administration apparently “supporting the use of a Critical Sliding Velocity Standard“.
The Plaintiff’s lawyer objected to this cross examination arguing that the letter was not listed on the Defendant’s list of documents and therefore could not be used.  Mr. Justice Goepel disagreed finding that documents that are used solely for impeaching an expert wittiness’ credibility do not necessarily have to be listed.  Specifically the Court reasoned as follows:

[7] A party is obliged to list all documents that fall within the purview of Rule 26(1) including those documents that can properly be described as forming part of the solicitor’s brief: Stone v. Ellerman, 2009 BCCA 294, 92 B.C.L.R. (4th) 203; Dykeman v. Porohowski, 2010 BCCA 36. Neither Stone, Dykeman or the cases cited therein deal with the use of documents being introduced to impeach the general credibility of an expert witness.

[8] A party who chooses to call an expert vouches for that expert’s credibility. The type and nature of documents that might challenge such credibility are endless. They may include articles, letters, testimony, speeches or statements that the expert has made in the past. There may be other articles which critically challenge the expert’s conclusion. Most documents which go to challenge an expert’s opinion or credibility are not documents which are related to the matter in question in the action. They only become relevant because of the expert’s testimony and do not fall under the purview of Rule 26.

[9] This ruling does not apply to all documents that the defendants may wish to put to this or other witnesses. If a document is otherwise related to a matter in question, it is not protected from disclosure merely because it will be used in cross examination or forms part of the solicitor’s brief.

[10] The August 5, 1994 letter, however, only becomes relevant because of Mr. Heitzman’s testimony. It was not a document that need be listed and the defendant is entitled to use the document in cross examination.

[11] To the extent the plaintiffs object to other documents the defendants might wish to put to Mr. Heitzman, those objections will be dealt with as they arise.

Losing Your Case With Your Own Evidence – More on Effective Cross Examinations

One of the most powerful tools a trial lawyer has is cross-examination.  In cross examination a lawyer can pose leading questions forcing a witness to agree or disagree and in doing so the lawyer seeks to get admissions that help his client’s case or hurt his opponent’s case.
In pre-trial examinations for discovery a lawyer has the right to ‘cross-examine‘ the opposing party.  By that I mean a lawyer is permitted to control the examination with leading questions.  If done effectively damage can be done to the your opponents case.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, demonstrating the results of a persuasive cross examination.
In today’s case (Mann v. Rainsford) the Plaintiff was injured while viewing a neighbour’s open house.  As the Plaintiff was leaving the house she mis-stepped on a concrete slap (basically a step) along a pathway from the home to the sidewalk.  Having mis-stepped the Plaintiff fell and was injured.  She sued the home-owner claiming that this concrete slab was a hazard and that steps should have been taken to guard against this injury.
Mr. Justice Wilson of the BC Supreme Court disagreed and dismissed the Plaintiff’s lawsuit.   The Court noted that the Plaintiff’s injuries “were caused solely by her own inattention“.  The Court reached this decision largely by the Plaintiff’s own evidence which was given at examination for discovery.  The Plaintiff’s evidence clearly had a damaging impact on her case and the discovery exchange is worth reviewing for anyone learning about cross examination in personal injury lawsuits.  The damaging cross examination was as follows:

[29] The plaintiff explained the mechanics of the incident, at her examination for discovery, as follows:

92   Q  Tell me what you did when you left the house.

A   I walked out of the front door and I stepped down the first step.  And I remember I was looking at the garden.  And I tripped.  And I went to grab the handrail, but there was no handrail there and I fell forward down the step.

96   Q  You said you were looking at the garden?

A   Mm-hmm, yes.

97   Q  Which area of the garden were you looking at?

A   On the left-hand side coming out.

98   Q  So the right-hand side of the photograph, you were looking over that way?

A   Yes.

100 Q  You didn’t slip on anything, is that right?

A   No.

101 Q  And you didn’t trip on anything, did you?

A   No, there was no object there.

102 Q  You misstepped, is that right?

A   Yes.

128 Q  So you stepped off the landing onto —

A   The step, yes.

129 Q  — down the first step, and you did that fine.

A   Yes.

130 Q  So you got down onto, say, the second landing?

A   Yes.

131 Q  And then you went forward?

A   Yes.

132 Q  And then what happened?

A   I tripped on that step, as far as I can remember.

133 Q  So you were looking at the garden to the left?

A   Yes.

137 Q  Why did you fall?  Do you know why you fell?

A   It wasn’t a normal configuration of steps going down, so I missed it.

138 Q  You just went up it 30 minutes earlier.

A   That’s correct.

139 Q  So you knew that there was a step and a landing and another step and a landing from when you just went up 30 minutes earlier, right?

A   I saw it as I went up, but I wasn’t looking at the stairs as I came down, because I don’t normally have to look and check to see where the steps are when you’re going down.

140 Q  You knew that this isn’t a staircase like at your house.  You knew that when you got there and you knew that when you went to go up into the house, right?

A   I saw it when I went up.

141 Q  So you knew that there were landings in between the steps and that you would have to walk to get to the next step, right?

A   Yes.

142 Q  I’m just trying to find out what was surprising to you that it was the same on the way out as it was on the way in.

A   I guess I hadn’t recalled the configuration when I left.

144 Q  So it was the same on the way out as it was on the way in?

A   Yes.

145 Q  It was simply just that you misstepped when you left the house, isn’t that right?

A   That’s correct, yes.

When preparing for discovery or trial you need to know that the defence lawyer will try to harm your case and must be prepared for a leading cross examination.  If not, you risk causing significant and possibly preventable damage to your claim.

BC Supreme Court Addresses Scope of Expert Witness Cross Examination

Reasons for judgement were released today addressing the permissible scope of Cross Examination of an expert witness in a BC Injury Claim.
In today’s case (MacEachern v. Rennie) the Defendants called a physician to give expert opinion evidence.  This physician happened to be a treating doctor of the Plaintiff’s prior to her injuries.  While testifying the doctor was taken through his clinical records by defence counsel on an entry by entry basis.  The doctor was asked what happened on each of those clinic visits and in canvassing this the doctor gave evidence about the prognosis and treatment of Hepatitis C (which is an area the doctor apparently was not called to address).
The Plaintiff then wished to cross examine the doctor about treatments and the prognosis for Hepatitis C.  The Defence lawyer objected to this on the basis that such a cross examination would “call for new opinion that are not admissible since the Plaintiff has not served the defendants with notice of those opinion“.
Mr. Justice Ehrcke swiftly rejected the Defendant’s objections noting that they could not restrict the cross examination on a topic which they chose to ask the doctor about in direct.  Specifically Mr. Justice Ehrcke noted as follows:

[11]         With respect to the first point, the CN Defendants argue that the notice which they served on the plaintiff in connection with Dr. Glynn-Morris contains only treatment opinions and does not touch on the area of the plaintiff’s Hepatitis C. This argument misses the mark. The plaintiff is entitled to respond to all the opinion evidence led by the CN Defendants, not just that which was contained in the written statement of Dr. Glynn-Morris’ opinion. It was counsel for the CN Defendants who chose in direct-examination to ask Dr. Glynn-Morris about testing of the plaintiff for Hepatitis C. It was in direct-examination that Dr. Glynn-Morris opined that in 30 percent of people, Hepatitis C cures itself and disappears, and that he ordered a test to see if that is what had happened in Ms. MacEachern’s case. Having opened up that area in examination-in-chief, the CN Defendants cannot now restrict the plaintiff’s cross-examination about it simply on the ground that it was not covered in the written statement that they had delivered to the plaintiff.

[12]         In any event, the proposed evidence is also truly responsive as a rebuttal to the opinion of another expert witness called by the CN defendants, Dr. Baker, whose report entered at Tab 1 of Exhibit 61 states:

I note Ms. MacEachern had already contracted hepatitis C which with her ongoing ingestion of multiple drugs would likely have progressed with liver damage and possible cirrhosis and eventual liver failure.

[13] Nevertheless, the CN Defendants argue that even if the proposed line of questioning did not require notice pursuant to the provisions of Rule 40A, notice was still required because of the case management order made in respect of this trial on February 6, 2009, which provided, among other things, that the plaintiff’s reply or rebuttal reports were to be delivered by January 29, 2009. The CN Defendants point out that Dr. Baker’s report was delivered to the plaintiff on December 1, 2008. They submit therefore that any opinion evidence in reply to Dr. Baker’s report should have been delivered to them by January 29, 2009.

[14]         The short answer to this argument is that the deadlines set out in the case management order relate to expert witnesses that each party proposed to call as witnesses in their own case. The order does not, by its terms, require a party to give notice of the questions it proposes to ask in cross-examination of another party’s witnesses, even if those questions in cross-examination have the effect of eliciting an expert rebuttal or reply opinion.

[15] The case of Canadian National Railway Company v. Canada, 2002 BCSC 1669, 8 B.C.L.R. (4th) 323 cited by the CN Defendants is distinguishable, because that case did not deal with the effect of a case management order on questions asked of an opposing witness in cross-examination.

[16] To summarize:  the questions that the plaintiff proposes to ask in cross-examination of Dr. Glynn-Morris are proper, and to the extent that they elicit expert opinions, those opinions are proper reply or rebuttal. Such reply or rebuttal opinions elicited in cross-examination are not subject to the notice requirements of Rule 40A, or of the case management orders that were made in this case.

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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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