Tag: Expert opinion evidence

BC Court of Appeal – Expert "Fact" Witnesses Entitled to Only $20 Fee for Trial Attendance

Useful reasons for judgement were published today by the BC Court of Appeal confirming that when a professional is summoned to testify at trial about facts they have knowledge of (as opposed to privately retained expert witnesses to give opinion evidence) they are entitled to no more than the $20 fee that must accompany a subpoena.
In today’s case (Luis v. Marchiori) the Plaintiff was injured in two vehicle collisions and sued for damages.  At trial her family doctor testified but not as an expert opinion witness, but rather as a witness of fact.  The Plaintiff paid $2,651 to the doctor for this service and tried to recover this as a disbursement.  In refusing to allow this the BC Court of Appeal noted that when a professional testifies as to facts they are entitled to nothing more than any other fact witness.  The BC Court of Appeal provided the following reasons:

[5]             It is useful to begin by distinguishing between expert fact evidence and expert opinion evidence. Witnesses who become involved in litigation due to their profession—such as a treating doctor or an engineer overseeing a construction project—may be called to testify about their observations. Although the observations may be beyond the knowledge of a layperson, that testimony is not opinion evidence. Examples include a witness describing radiological images, identifying a microbe seen under a microscope, or identifying the pathological process seen on surgery or autopsy. Such evidence is sometimes described as “non-opinion expert evidence”: Robert B. White, The Art of Using Expert Evidence (Toronto: Canada Law Book, 1997), ch. 2 at 16‒21.

[6]             Justice Schultes addressed this distinction in Anderson v. Dwyer, 2009 BCSC 1872 at para. 14 in the context of the Rule requiring notice of opinion evidence:

… However, the witness’s factual narrative of the actions he took and the observations he made, including describing without interpretation, the anatomical features he observed in the x-rays does not amount to offering an opinion and does not offend the Rule. The fact that he brings special training or experience to bear in having taken those actions and made those observations is not determinative. It is whether he draws inferences or offers opinion beyond what the actual evidence itself is capable of revealing.

[Emphasis added.]…

[46]         Although I agree that some professions are more regularly called upon to testify in court than others, it is not readily apparent that a particular individual will be called upon more often. Further, these appeals have focused on the potential financial hardship to professionals such as physicians, engineers and lawyers called to testify as fact witnesses, but as Justice Park observed in Lonergan v. The Royal Exchange Assurance, (1831), 131 E.R. 280 at 283, “time to a poor man is of as much importance as to an attorney.” Indeed, the loss of a day’s work at minimum wage may be a greater relative hardship to a lay witness than the loss of a professional person’s earnings. In addition, to focus on monetary losses alone may be too narrow. Although some witnesses make a sacrifice of time and labour and thus of profits and wages, others sacrifice privacy, and experience the “disagreeable consequence of disclosure”: Wigmore on Evidence, vol. 8 at 72.

[47]         In my view, the interpretation Ms. Luis advances is of no small significance, departing as it would from the longstanding tradition that attendance at trial is “an inherent burden of citizenship”. As John Henry Wigmore put it so eloquently:

That the ordinary witness should be paid more than the nominal dollar — i.e., should be fully indemnified for sacrificing his day’s livelihood in order to perform his testimonial duty — is a plausible assertion. The argument against it, that the total cost of reimbursing highly paid citizens would be prohibitive, gives no real answer, for the state is bound to supply the necessities of justice however expensive. The best answer is that the testimonial duty, like other civic duties, is to be performed without pay, the sacrifice being an inherent burden of citizenship. Neither for military service nor for public office can the citizen claim that he shall be paid on a scale which will bear any equable proportion to the loss of his livelihood’s income. Any other principle would be worthy only of a purely mercenary community. If the sacrifice made is a real one, the dignity of the service rendered should ennoble it. The sense of civic duty done must be the consolation.

Wigmore on Evidence, vol. 8 at 136. [Emphasis added.]

[48]         If there are sound policy reasons for departing from that tradition and the present regime, it is in my view for the legislature and not the judiciary to effect that change.

[49]         In summary, I am of the view that the payment of an attendance fee to expert fact witnesses beyond the fee prescribed in Schedule 3 is not a disbursement recoverable from the opposing party. I would therefore dismiss the appeals, with thanks to all counsel for their able and thorough submissions.

Expert Evidence: Fact vs. Opinion

When advancing a personal injury lawsuit in British Columbia expert evidence plays a key role.  Be it the diagnosis of injury, prognosis, future care needs, disability or other topics there are no shortage of areas that call for the assistance of expert evidence.
When preparing for trial notice of expert opinion evidence has to be given in compliance with Rule 40A (after July 1, Rule 40A will be replaced with the new Rule 11).
Just because a professional such as a doctor is giving evidence does not necessarily mean that the Rule regarding expert opinion evidence is triggered.  If an expert is giving purely factual evidence then Rule 40A does not apply.  However, if the evidence is not purely factual but also contains opinion then the notice period in Rule 40A is likely triggered.  So what exactly is an expert opinion?  Last week reasons for judgement were released discussing this distinction.
In last week’s case (Anderson v. Dwyer) the Court was asked whether a chiropractor interpreting an X-ray was factual evidence or opinion evidence.  Mr. Justice Schultes provided the following very useful analysis:

[13] In determining the admissibility of Dr. Wooden’s evidence, it is crucial to bear in mind the distinction between expert opinion and factual evidence that is given by potential expert witnesses.  As the learned author of Phippson on Evidence (16th ed.) helpfully observes at para. 33-10, p. 972:

There is an important if elusive distinction to be made in the categorization of expert evidence.  It is generally accepted that there is a difference between evidence of fact and evidence of opinion notwithstanding that it may be difficult to identify the line which divides the two.  It is also well understood that in practice a witness of fact may not be able entirely to disentangle his perceptions from the inferences he has drawn from them.  Although the courts often talk of “expert evidence” as if it were a single category representing in every case an exception to the rule against the reception of opinion evidence, it is suggested that a similar distinction exists in the evidence of experts and it is one which has considerable relevance both to the procedural aspects and to the assessment of the weight of expert evidence.  Expert witnesses have the advantage of a particular skill or training.  This not only enables them to form opinions and to draw inferences from observed facts but also to identify facts which may be obscure or invisible to the law witness.  The latter might simply be described as scientific evidence; the former as expert evidence of opinion.  A microbiologist who looks through a microscope and identifies a microbe is perceiving a fact, no less than the bank clerk who sees an armed robbery committed.  The only difference is that the former can use a particular instrument and can ascribe objective significance to the data he perceives.  The question of subjective assessment and interpretation which is the essence of opinion evidence hardly enters into the matter at all.  An example of the dichotomy can be seen in the case of a conflict between experts on handwriting as to the authenticity of a document.  By virtue of their training, such experts would be able to distinguish parts of letters or techniques of word formation which a layman would be unable to observe.  This is the scientific part of their work.  The question of which features are significant and the inferences to be drawn from them are questions of judgment, assessment, opinion.  This distinction which has now been accorded a measure of judicial recognition is thought to be of some practical utility in considering the weight of evidence given by experts both taken in isolation and when assessing the merits of two competing theories.

[14] This distinction is a very meaningful one in this case.  Any evidence by Dr. Wooden seeking to offer an opinion about the plaintiff’s injuries, such as the inferences to be drawn from the observations in the x-rays or with respect to the cause or mechanism of the injury, would be prohibited because of the plaintiff’s failure to comply with Rule 40A.  However, the witness’s factual narrative of the actions he took and the observations he made, including describing without interpretation, the anatomical features he observed in the x-rays does not amount to offering an opinion and does not offend the Rule.  The fact that he brings special training or experience to bear in having taken those actions and made those observations is not determinative.  It is whether he draws inferences or offers opinion beyond what the actual evidence itself is capable of revealing.

[15] In this regard, I consider this kind of factual evidence to be analogous to those matters described by Madam Justice Garson as being “more in the nature of observations” as opposed to inferences having complex interpretive or diagnostic components when she described how their inclusion in records sought to be admitted as business records did not offend Rule 40A in Egli v. Egli, 2003 BCSC 1716 at para. 25 which was relied on by the defendant in submissions.

Personal Injury Claims and Radiologists Opinion Evidence


(Please note the topic discussed in this post should be reviewed keeping a subsequent October 2010 BC  Court of Appeal in mind)
X-rays, CT Scans, Bone Scan and MRI’s are routinely used in the diagnosis of traumatic injury and accordingly the findings of these diagnostic tests are frequently used at trial by personal injury lawyers.
Strictly speaking, however, the findings of radiologists interpreting the raw data generated by these tests are opinions and opinion evidence needs to comply with the Rules of Court to be admissible.  If an MRI shows a traumatic injury it is not good enough to show up at trial with only the radiologists consultation report in hand.  If you want the Court to rely on the radiologists findings of injury the reports need to be served in compliance with Rule  40A (Rule 40A is being overhauled in July 2010 and you can click here to read my previous article discussing this) Reasons for judgement were released today by the BC Supreme Court showing this legal principle in action.
In today’s case (Wittich v. Bob) the Plaintiff was injured in a 2004 BC Car Crash near Merritt, BC.  She sued for her injuries seeking up to some $800,000 in damages.  She claimed various accident related injuries including a herniated disc at C5-6.  In support of this claim two CT Scan Reports were entered into evidence, the first taken before the crash and the second after the crash.  The later scan was “interpreted by the radiologist as showing….a c56 level …herniated disc“.
The radiologist’s consultation report did not comply with Rule 40A.  Accordingly the report was only admitted for the fact that the diagnosis was made but not for the truth of the opinion.  Ultimately the court did not make a finding that the herniated disc was caused by the car crash.    Madam Justice Bruce summarized and applied the law to the facts of this case as follows:

[143] Of particular concern is the plaintiff’s failure to call any medical opinion evidence to support a finding that she suffered a herniated disc at C5-6 during the accident. As part of Dr. Grist’s clinical records, Mrs. Wittich entered two CT scan reports; one taken prior to the collision and one taken shortly thereafter. While the later scan was interpreted by the radiologist as showing a change from disc degeneration at the C5-6 level to a herniated disc that was impinging on the nerves of the spinal canal, this evidence cannot be regarded as expert medical opinion. These reports do not comply with Rule 40 and contain no indication of the radiologist’s qualifications and expertise to make these findings. Thus they are only admissible for the fact that this diagnosis was made and not for the truth of their contents.

[144] Moreover, even if I were to accept these reports as expert opinion evidence, there is the cogent evidence of Dr. Maloon, an orthopaedic surgeon, which supports a contrary finding as to the existence of a disc herniation. Dr. Maloon provided a detailed explanation for his conclusion that Mrs. Wittich did not suffer from a herniated disc, which included factors related to his physical examination of Mrs. Wittich and the symptoms she presented with at the time of his examination and interview. Dr. Maloon was qualified as an expert in the field of orthopaedic surgery and qualified to give opinion evidence as to the existence, cause and prognosis of spinal cord injuries. His evidence was thoroughly tested in cross examination and held up to scrutiny. In my view, it would be in the most unusual circumstances that the court would prefer the radiologist’s report to the evidence to that of Dr. Maloon and I find there are no such circumstances in this case. There is no evidence of the radiologist’s qualifications or expertise and no explanation of the reasons underlying his diagnosis.

[145] As a consequence, I find there is really no medical evidence before the court that Mrs. Wittich suffered any injuries to her neck apart from soft tissue complaints. In this regard, it was Dr. Maloon’s evidence that she likely experienced such injuries in the accident, but he was unable to specify which tissues (muscles, ligaments, or facet joints) were damaged based on Mrs. Wittich’s subjective reporting of vague pain symptoms.

The Plaintiff’s claim was largely dismissed and damages of just over $30,000 were awarded.  This case serves as a reminder that if the findings of a radiologist make up an important part of your personal injury case the evidence has to be served in compliance with the rules governing expert opinion evidence.

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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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