Tag: expert reports

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).

Late Defence Medical Report Inadmissible For Going Beyond Responsive Evidence Exception


When the New Rules of Court were introduced last year changes were made to the timelines to exchange expert reports.  An 84 day deadline was set out in Rule 11-6(3) and a shorter 42 day deadline is set out in Rule 11-6(4) for “responding reports“.   The first reasons for judgement that I’m aware of were released today by the BC Supreme Court, New Westminster Registry, addressing whether to admit a late report under the “responsive evidence” exception.
In today’s case (Crane v. Lee) the Plaintiff was injured in a 2005 motor vehicle collision.  The Defendant ran a stop sign and admitted fault for the crash.   The Plaintiff’s expert provided evidence that she suffered from soft tissue injuries and a herniated disc.  The Defendant obtained an expert report which contradicted this finding and served this report less than 84 days before trial.  The Defendant argued that the report was responsive and should be admitted.  Mr. Justice Smith disagreed finding the report went beyond the narrow circumstances permitted in Rule 11-6(4).  In excluding the report the Court provided the following reasons:



[21] At the opening of the trial, counsel for the plaintiff objected to and sought a ruling on the admissibility of a medical report that the defendant intended to rely upon.  The report had not been served within the 84 days required by Rule 11-6 (3) of the Supreme Court Civil Rules, B.C. Reg. 168/2009.  Counsel for the defendant relied upon rule 11-6 (4), which reads:

(4)        Unless the court otherwise orders, if a party intends to tender an expert’s report at trial to respond to an expert witness whose report is served under subrule (3), the party must serve on every party of record, at least 42 days before the scheduled trial date,

(a)        the responding report, and

(b)        notice that the responding report is being served under this rule.

[22] Rule 11-6 (4) is intended to apply only to evidence that is truly responsive or in rebuttal to specific opinion evidence tendered by the opposite party.  It is not intended to provide defendants with a general exemption from the basic time limit for serving expert reports that is set out in Rule 11-6 (3).  Defendants who delay obtaining or serving expert evidence until after the plaintiff’s opinions have been received, then attempt to introduce all of their expert evidence as response, do so at their peril.

[23] In this case, I found that the report was not limited to true responsive evidence.  It stated the author’s opinion on the nature and cause of the plaintiff’s injury?the central issue that both sides had to address from the outset?and was based upon a review of all the medical records, including some not referred to by Dr. Field in his report.  As such, I considered it to be a free-standing medical opinion that ought to have been served pursuant to Rule 11-6 (3).  I ruled the report inadmissible, with the result that there was no expert evidence before me to contradict Dr. Field’s opinion.




The Court accepted the evidence from the Plaintiff’s expert and in assessing non-pecuniary damages of $100,000 Mr. Justice Smith provided the following reasons:
[33] On review of all the evidence, I find that the accident for which the defendant has admitted liability caused soft tissue injuries to the plaintiff’s neck and upper back, which eventually resolved, and a herniated disc in the lower back that continues to cause pain and limitation.  To the extent that the accident may have aggravated a pre-existing condition, I find that in the years immediately preceding the accident that condition was minimally symptomatic and there is no evidence that it would likely have become worse but for the accident.  I accept the uncontradicted evidence of Dr. Field that the plaintiff’s current pain is likely to be permanent…
[45] The injury the plaintiff suffered has had a significant impact on her enjoyment of life.  She has back pain on a daily basis, fluctuating according to her activities.  She has lost what was formerly a very active lifestyle, giving up some activities that she formerly enjoyed, while continuing some others on a reduced level, accepting the trade-off of increased pain.  The only medical evidence before me is that this condition is likely to be permanent. She also suffers severe anxiety while driving, particularly in situations similar to those that gave rise to the accident, although there is no evidence that this condition is necessarily permanent…
[49] Taking into account the effect of the plaintiff’s injuries on her lifestyle, the permanent nature of her pain and the psychological impact, including her driving anxiety, and considering the cases cited, I assess the plaintiff’s non-pecuniary damages at $100,000.

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.

Expert Reports and the New Rules of Court: The "Factual Assumptions" Requirement


One of the requirements in the new BC Supreme Court Rules is for expert reports to clearly set out the “factual assumptions on which the opinion is based“.  Failure to do so could result in a report being excluded from evidence.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this requirement.
In this week’s case (Knight v. Li) the Plaintiff attempted to cross 41st Avenue in Vancouver, BC when his vehicle was T-boned by a the Defendant.  The Plaintiff had a stop sign and was the ‘servient driver’.  The Defendant was speeding.  Mr. Justice Harris found the Plaintiff 75% at fault for the crash and the Defendant 25% at fault.  The reasons for judgement are worth reviewing in full for the Court’s through discussion of the legal principles at play in intersection crashes.
In the course of the lawsuit the Plaintiff introduced an expert report from an engineer.  The Defendant objected to the report arguing that it did not comply with the rules of Court.  Mr. Justice Harris ultimately did allow the report into evidence but made the following critical comments addressing an experts need to clearly set out the factual assumptions underpinning their opinions:

[38]         Our new Supreme Court Civil Rules codify the obligations of experts testifying in our Court. In my view, they restate obligations our law has long recognised. The Civil Rules require a clear statement of the facts and assumptions on which a report is based. It was incumbent on Mr. Gough to state clearly the assumptions on which his report was based. He did not do so. He did not provide me with an opinion of the effect of Mr. Li’s excessive speed on his ability to avoid the collision as he claimed. He gave me an opinion of Mr. Li’s ability to avoid the collision if certain assumptions favourable to Mr. Knight were made. He said nothing about being instructed to make those assumptions and nothing about the effect on Mr. Li’s ability to avoid the Accident if those assumptions did not hold.

[39]         It must be remembered that Mr. Gough’s report is his evidence. In my view, the report as written did not comply with the requirements in the Civil Rules to state the facts and assumptions on which it is based. There is nothing improper in an expert accepting assumptions of fact that affect the opinions the expert provides, but they must be clearly stated. If they are not, there is a real risk that the trier of fact could be misled. In this case it required cross-examination to demonstrate the implications of the assumptions for the conclusions reached about Mr. Li’s ability to avoid the Accident. In my view, in this case, given the opinion being offered, the report should have clarified the effect of the assumptions about Mr. Knight’s driving on the conclusions about Mr. Li’s ability to avoid the Accident. By failing to do so, this aspect of the report descended into little more than a piece of advocacy.

The Debate Goes On… Independent Medical Exams and "Responsive" Expert Evidence


Rule 11-6(3) of the new BC Supreme Court Civil Rules requires expert reports to be served 84 days prior to trial.  Rule 11-6(4) requires “responding” reports to be served at least 42 days prior to trial.  The issue of whether a Defendant is able to force a plaintiff to attend an “independent medical exam” for the purpose of obtaining a responding report is currently being worked out by the BC Supreme Court.  Reasons for judgement were released last week demonstrating this matter remains a live issue.
Earlier this year, Mr. Justice Savage declined a defence motion to compel a Plaintiff to attend a doctor’s examination to obtain a responding report finding that an independent examination of a Plaintiff is not necessarily required since responding reports are to be strictly limited to “a critical analysis of the methodology of the opposing expert”
In a case released last week the Court reached a seemingly opposite result with a finding that an independent medical exam can be compelled to allow a Defendant to obtain a responding report in a personal injury claim.
In last week’s case (Luedecke v. Hillman) the Plaintiff was injured in a BC motor vehicle collision.  He served his expert reports in the timelines required by the Rules of Court.  The Defendant sought an order for an independent medical exam to obtain a responding opinion.  The Plaintiff opposed arguing that a medical examination is not necessary to obtain a truly responding opinion.  Mr. Justice Cullen disagreed and upheld a Master’s order compelling the Plaintiff to see the Defendant’s doctor.  In doing so the Court noted as follows:

[49]        Although the plaintiff submits that Dr. Reebye should be limited in his report to “criticizing the methodology or the research or pointing out facts apparent from the records which the other examiners may have overlooked” based on Justice Savage’s apparent reliance on C.N. Rail, supra, I do not take from Savage J.’s judgment that responsive opinions are invariably limited to “a critical analysis of the methodology of the opposing expert.”

[50]        In C.N. Rail, supra, Henderson J. was dealing with rebuttal evidence in the classic sense described by Southin J.A. in Sterritt v. McLeod, supra, as simply evidence responsive to some point in the oral evidence of the witness called by the defendant.

[51]        What is at issue in the present case is a different form of responsive evidence, recognized in Stainer v. Plaza, supra, as distinct in paragraph 15, where Finch J.A. ( as he then was) noted:

The third condition in the order is directed to the third party calling an independent medical examiner “for rebuttal evidence” I understand from counsel that this refers not to rebuttal evidence as generally understood, but to evidence that is purely responsive to medical evidence which the plaintiff has led as part of her case.  It would not apply to opinion evidence offered by the third party on subject matters not adduced in the medical evidence adduced by the plaintiff. [underlining added]

[52]        I thus conclude that what is referred to in Rule 11-6(4) is not akin to rebuttal evidence such as that called by a plaintiff in response to a defendant’s case, with its consequent limitations.  Nor is it akin to expert evidence that responds generally to the subject matter of the plaintiff’s case.  Rather, it refers to evidence that is “purely responsive” to the medical evidence which the other party has called.

[53]        As such, it has inherent limitations, but not necessarily the same limitations that Henderson J imposed on the true rebuttal evidence he was dealing with in C.N. Rail, supra.

[54]        I agree with the conclusion of Mr. Justice Savage in Wright v. Brauer, supra, to the effect that there is an evidentiary threshold to be met before an order under Rule 7-6(1) should be made in contemplation of an expert’s report under Rule 11-6(4).  That threshold is different from that for ordering an expert’s report under Rule 11-6(3).  To reach the requisite threshold under Rule 11-6(4) the applicant must establish a basis of necessity for the examination to properly respond to the expert witness whose report is served under subrule (3) by the other party.  It is not simply a matter of demonstrating a need to respond to the subject matter of the plaintiff’s case.

[55]        Clearly, that threshold was not met in the case before Savage J.  In the case before me there is an affidavit from Dr. Reebye setting forth a basis for the examination sought, although ultimately what Dr. Reebye may regard as purely responsive may be different from that which the trial judge eventually concludes to be so.  That issue must await another day.  Here I am dealing with a more limited issue, and I am satisfied that on the basis of Dr. Reebye’s affidavit the evidentiary threshold is met and the order of Master Scarth should be upheld.

[56]        I am alive to the concern expressed by the plaintiff’s counsel that Rule 11-6(4) may be seen as a means for defendants to circumvent the more onerous notice provisions of 11-6(3) and routinely seek to obtain reports that more properly should be sought under that latter rule.  I conclude, however, that such a concern can be met as it was with the practice of having opinion evidence without notice under the old Rule 40A.  In that regard, the words of Williamson J. in Kelley v. Kelley (1995), 20 B.C.L.R. (3d) 232 (S.C.) are apt:

I would restrict, of course, as courts I think must, the practice of having opinion evidence without notice strictly to truly responsive rebuttal evidence, and I think if that rule is carefully observed, there should be no difficulties.

As with judicial precedents developed under the former rules, I expect there will be some seemingly inconsistent judgements dealing with the issue of independent medical exams under the current rules and eventually the BC Court of Appeal will likely weigh in on the issue to bring some clarity to the law.

The New BC Supreme Court Rules and "Responsive" Expert Reports


Important reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, interpreting and applying Rule 11-6(4) for the first time.  This rule deals with “responsive” expert opinion evidence.
Under the old Rules of Court parties could call responsive expert evidence without notice provided the evidence was truly responsive.  The new rules of court changed this and require responsive expert reports to be served 42 days ahead of the scheduled trial.
In today’s case (Wright v. Bower) the Plaintiff was involved in a motor vehicle collision and alleged chronic back pain as a result of the crash.  Her lawyer served expert reports addressing these injuries in compliance with the time lines set out in the rules of court.  The Defendant brought a motion to compel the Plaintiff to attend an examination with an orthopaedic surgeon in order to obtain a ‘responsive’ report.  The Plaintiff opposed arguing that an examination was not necessary for the Defendant to obtain a truly responsive report.  Mr. Justice Savage agreed with the Plaintiff and dismissed the motion.  In doing so the Court provide the following useful reasons setting the parameters for responsive expert evidence:

[12]         Rule 11-6(4) was enacted to fill a lacuna in the Rules.  Under the former Rules, Rule 40A permitted parties to call expert evidence in reply without notice at trial.  In order for such evidence to be admitted, however, it had to be truly responsive to the expert evidence of a witness called by the opposing party.

[13]         In Stainer, supra, the British Columbia Court of Appeal considered Rule 40A(3) and the scope of the Court’s discretion to admit responsive evidence.  At paragraphs 16-18, Finch J.A. said:

[16]      …The admission of expert evidence is now governed by Rule 40A(3)

An expert may give oral opinion evidence of a written statement if the opinion has been delivered to every party of record at least sixty days before the expert testifies.

[17]      That rule applies equally to all parties.  In the normal course, a defendant will wish to protect his right to adduce expert evidence at trial by giving the notice required by that rule.  But the court retains a discretion to admit responsive evidence of which notice has not been given:  Pedersen v. Degelder (1985), 62 B.C.L.R. 253 (B.C.S.C.); Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7 (S.C.); and Kelly v. Kelly (1995), 20 B.C.L.R. (3d) 232 (S.C.).  In the latter case Mr. Justice Williamson said:

I would restrict, of course, as courts I think must, the practice of having opinion evidence without notice strictly to truly responsive rebuttal evidence, and I think that if that rule is carefully observed, there should be no difficulties.

[18]      That is, in my respectful view, a correct statement of the proper practice. …

[15]         Amongst other things, the parties argued before me regarding whether the new Rules have substantively changed the practice which existed under Rule 40A.  They agreed that this is an important practice point, and a case of first impression.

[16]         Rule 40A gave the Court discretion to admit responsive evidence of which notice had not been given.  Rule 11-6(4) now provides that notice must be given of responsive expert evidence (although I note that the Court retains discretion to admit expert evidence of which sufficient notice has not been given).

[17]         I would expect that, in the ordinary course, an examination would be ordered under Rule 7-6(1) where a person’s medical condition was in issue in an action, provided it was requested in a timely way.

[18]         However, at this point in time in the action, the defendants are limited to what Mr. Justice Williamson referred to in Kelly, supra, as “truly responsive rebuttal evidence”.  The application must be considered in that light; the question on this application is not one of notice, but whether the Examination should be ordered to enable the defendant to file responsive evidence.  The authorizing Rule, 7-6(1) uses the term “may”.

[19]         In Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7, Sanders J., as she then was, noted that “true response evidence, does not permit fresh opinion evidence to masquerade as answer to the other side’s reports”.

[20]         In C.N. Railway v. H.M.T.Q. in Right of Canada, 2002 BCSC 1669, Henderson J. considered the admissability of “reply reports” holding that only the portions of the reports that provided a critical analysis of the methodology of the opposing expert were admissible as responsive evidence.  The portions of the reports describing the authors’ own opinions on the matters in issue were not admitted.

[21]         In this case, the defendants do not explain why an examination is required in these circumstances, other than a statement by a legal assistant that counsel says such is “necessary to properly defend this action and to respond to the reports of Dr. Weckworth and Dr. O’Connor”.  Master McCallum in White v. Gait, 2003 BCSC 2023 declined to order an examination where it had not been shown why such was required to produce a responsive report.

[22]         In my opinion, the bare assertion reported to a legal assistant in this case is insufficient to support an order under Rule 7-6(1) that the plaintiff attend the Examination, when the defendants are limited to providing response reports under Rule 11-6(4).  In the circumstances, the application is dismissed.  The plaintiff is entitled to costs of the application.

Functional Assessment Biomechanical System (FAB) Deemed Inadmissible in Injury Claim

Reasons for judgement were released today by the BC Supreme Court considering the admissibility of the “Functional Assessment Biomechanical System” (known as FAB for short) in a personal injury claim.
In today’s case (Forstved v. Penner) the Plaintiff was suing as a result of personal injuries.  In presenting her case she hired an occupational therapist to write a report summarizing her physical limitations and giving an estimate of her future care needs.  In preparing this report the occupational therapist used the FAB system.
Mr. Justice summarize the FAB System as follows:

[5] The development of the FAB started in 2004 and Mr. McNeil has been using the FAB results since 2006 or 2007 in the preparation and formulation of his opinions.

[6] The FAB in short is comprised of hardware, the most critical part being some 13 wireless inertial sensors that are attached to a subject or patient’s body while they undertake various physical tasks; and software, that translates the signals from the sensors into measurements of the movements of the body on a real-time basis. Embedded in the software are functions such as the analysis of the data as requested by the operator as the test subject is conducting the instructed activities. It also includes a timer function, graphing and other report templates.

[7] Mr. McNeil is present while the subject performs the tests and says that he observes the actions of the subject. He also states that the FAB is not a diagnostic tool but rather augments his findings. He says he applies standardized tests which are set out in his report and that the FAB system provides additional measures that would otherwise only be guessed at by an evaluator.

The Defence lawyer argued that the expert report should not be admitted into evidence because the FAB System was “novel as a science or technique“.  Mr. Justice Masuhara agreed that the report was not admissible as the FAB System does not meet the judicially required “threshold level of reliability“.

Specifically Mr. Justice Masuhara held as follows:

[12] As I have mentioned, the report itself reflects the measurements from the FAB. The report is lengthy, being 82 pages, again which I say is largely comprised of the information derived from the FAB.

[13] The report says that there are checks and balances within the tests when cross correlating and with cross correlating tests in order to establish the level of effort put forth by the individual. As I have said, he states that it is not a test protocol and that standard tests are used throughout the assessment and that motion capture system augments the evaluator’s observation and allows for accurate measurement, mobility and measurements of biomechanical forces that could otherwise not be performed by the evaluator and that tests are performed to identified the reliability of the individual’s pain reports including distraction tests and Waddell signs.

[14] On the other hand, the defence in following the factors in R. v. J.?L.J. points to the following.

[15] That the technique which includes both the hardware and the software has not been tested except by Biosign or someone under its direction. Mr. McNeil’s own words stated that the testing was still in the “beta phase” which I took to mean that it was not yet ready commercially. The software itself is proprietary and Mr. McNeil being an occupational therapist is not able to speak to the coding as he did not develop it, nor could he speak to the hardware but relied upon his own team of engineers who have developed these things. From that perspective there are some difficulties with respect to the ability to test and to query the software and the hardware embedded and integrated within the FAB.

[16] That the technique while Mr. McNeil indicated was under some form of peer review, nothing has been published and Mr. McNeil was not able to indicate when such a review or the results of such a review would be produced. He also agreed that the motion capture technique is a relatively new technique. Though I note that he stated it was not “cutting edge”.

[17] There are no published standards for the techniques nor is there any rate of error known though Mr. McNeil did say that the device had met CSA, Health Canada, FDA and FCC standards. However, on cross-examination it was revealed that these standards largely deal with safety issues with respect to the device being used upon a subject and could not be taken to speak to the accuracy or reliability of the FAB.

[18] In regard to the technique being generally accepted, Mr. McNeil is the only occupational therapist in British Columbia using the motion capture software. There is no consensus on any technology being the best for the type of work that is the subject of this ruling. No one has yet purchased his technology and the vast majority of occupational therapists do not use motion capture techniques.

[19] Complicating the entirety of the circumstances is the fact that Mr. McNeil is the inventor and a marketer of the FAB. He has a financial interest in the acceptance and success of the FAB. Mr. McNeil’s testimony revealed a lack of appreciation regarding the role of a court expert and the need for open and candid disclosure of a financial interest in the very tools that he refers to in validating or verifying the reliability of the information supporting his opinions. His view that such information was irrelevant was troubling. This problem with respect to his non-disclosure was also referred to by Madam Justice Allan recently in the Rizzolo v. Brett, 2009 BCSC 732 at para. 105. I wish to add that Mr. Mussio was not aware of these issues and that Mr. Chan for the defence only came upon Mr. McNeil’s testimony before Allan J. on the weekend before this trial started.

[20] In the circumstances, I am of the view that the results from the FAB do not meet the threshold level of reliability. As the subject report is comprised to a large degree with the data from the FAB, which creates an unwarranted perception of precision, and which is integrated into the recommendations I rule that the report is not admissible in its present form. Having said that, I think it would be in order for the court to receive submissions from Mr. Mussio and of course reply by Mr. Chan as to Mr. McNeil being called to provide evidence and his opinions based on his observations or some other form in which his testimony can be received by the court. That concludes my ruling.

Motor Vehicle Cases and Expert Reports Addressing Fault

I have written about the role expert witnesses play in ICBC Injury Claims on several occasions.  These past posts have largely dealt with expert medical witness who typically address the nature and extent of injuries caused by motor vehicle collisions.  What about experts addressing the issue of fault, can they play a role in BC personal injury claims?
The answer is yes but for a variety of reasons such witnesses typically are not involved in claims arising from car crashes.  This is so because in most car crash cases addressing fault expert evidence is not needed because judges and juries are able to use their common sense and collective life experience to determine who is at fault.  However, sometimes more unusual circumstances outside of most people’s typical life experience cause a collision such that expert evidence may be necessary.  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing this issue.
In yesterday’s case (MacEachern v. Rennie) the Plaintiff was severely injured while “walking or riding her bicycle along the King George Highway…when her head struck the side of a large tractor-trailer“.
The Plaintiff’s lawyer tried to introduce an expert witness to give opinion evidence on the standard of care of professional drivers of tractor-trailers, whether the driver in this case met that standard and lastly with respect to evidence regarding the characteristics of large tractor trailers.
The defence lawyers objected to this witness claiming expert evidence was not necessary to assist the court in making findings of fault.  Mr. Justice Ehrcke of the BC Supreme Court disagreed and permitted this evidence in and in doing so engaged in a useful discussion about the role that expert witnesses play generally in BC cases addressing the issue of fault.  For your convenience I reproduce the highlights of this discussion below:

[10]            In Burbank v. R.T.B., 2007 BCCA 215 our Court of Appeal observed that while expert evidence on the standard of care is not usually required in negligence actions, it may be capable of assisting the trier of fact and admissible as necessary in certain cases, particularly where the subject matter is beyond the common understanding of the judge or jury.

[11]            In the present case, while most adults in British Columbia may have some experience in driving motor vehicles, few have experience in driving large commercial tractor-trailers.  Few would know from their common experience what the handling characteristics of such vehicles are, or what the visibility is from the perspective of a driver in the cab, or what the common driving practices are of professional drivers of such rigs.

[12]            Not only have most persons never had the experience of driving such vehicles, most persons would not even be legally permitted to drive them, since to do so one must first satisfy the requirements to obtain a special class of driver’s licence…

 

[15]            In Tucker (Public Trustee of) v. Asleson (1993), 78 B.C.L.R. (2d) 173 (C.A.), Southin, J.A. specifically addressed the issue of expert evidence in motor vehicle negligence actions and observed that a distinction ought to be made between cases involving motor cars and those involving large transport vehicles.  She wrote at pp.194-195:

To my mind, motor car negligence cases differ significantly from all other actions in which one person alleges that the acts or omissions of another in breach of a duty of care have done him injury.

First, the Legislature has laid down for motorists many rules of the road and many requirements concerning the equipping of vehicles, all of which the motorist is expected to obey and which he expects others to obey.  The only other aspect of ordinary life so governed is that of the movement of vessels upon certain navigable waters.  But I do not say that obedience to these rules relieves the motorist from all other obligations.  See British Columbia Electric Railway v. Farrer, [1955] S.C.R. 757.

Secondly, experts are not called to prove the standard of care which is appropriate. Each judge brings into court his or her own notions of what constitutes driving with reasonable care.  As I said in McLuskie v. Sakai in a passage quoted in the appeal from my judgment (1987), 12 B.C.L.R. (2d) 372 at 378 (C.A.):

The difficulty with these motor car cases and matters of negligence is that whatever we may be saying, what we are doing as judges is, in fact, applying our own knowledge of driving to the facts in the absence of any other evidence.  That is what a judge does every time he says that the defendant should have avoided an obvious obstruction.  I, on the balance of probabilities, am not satisfied that a competent driver coming upon that ice on that bridge on that morning with both hands on the wheel could have done other than Mr. Sakai did.  Therefore, it follows that I do not think he was negligent.

To put it another way, in motor car cases the judge is his or her own expert.  That is not to say that there could not be expert evidence on the proper way, for instance, for the driver of a mammoth transport vehicle to drive.  If, on such an issue, the plaintiff called an expert to say that such a vehicle should not be driven under certain circumstances at more than 40 miles per hour and the defendant called another expert who said the contrary, the learned trial judge could and usually would be obliged to choose one expert over the other.

[16]            Expert evidence on the standard of care has been considered in a number of negligence cases involving the operation of heavy vehicles.  See for example Millott Estate v. Reinhard, [2002] 2 W.W.R. 678 (Alta. Q.B.) and Fuller v. Schaff, 2009 YKSC 10.

[17]            I am satisfied that Mr. Eckert should be qualified as an expert witness and permitted to give opinion evidence in the areas outlined above.  I find that he has the necessary qualifications and that the evidence is necessary in the sense explained by the Supreme Court of Canada in Mohan.  What weight should be attached to his evidence is, of course, a matter that can only be determined at the end of trial.

"On the Road Again…" ICBC claims and Litigation Privilege

As an ICBC claims lawyer I find myself frequently traveling throughout BC representing clients involved in ICBC claims. This week I’m back in one of my favourite destinations (particularly this time of year), sunny Kelowna, BC. The lake, the heat, what’s not to love?
I try to minimize the amount that travel interferes with business as usual, but despite my best efforts the responsibilities of life on the road do get in the way, so here is the ‘travel version’ of my reporting on recent ICBC claims…
Litigation Privilege. An ICBC claims lawyer representing his/her clients may come into the possession of privileged information. One of the most common types of privilege claimed over evidence by ICBC claims lawyers is the medico-legal report.
When a lawyer obtains a report providing an opinion as to the extent of injury caused in a BC car accident that report may very well be privileged and not disclosed to ICBC. The problem is, oftentimes a privately paid report authored by an independent physician or other hired expert may provide useful rehabilitation advice for a client. So the question is, can such a report be disclosed to the client’s treating physician to better aid in rehabilitation without waiving legal privilege and forcing disclosure to ICBC? A judgement released today seems to say that this can in fact be done.
In this case the Plaintiff had 2 claims, the first being the ‘tort claim’ meaning the claim against the motorist who injured the Plaintiff (who happens to be insured by ICBC) and a ‘part 7 claim’ meaning a claim against ICBC directly for the enforcement of any ‘no fault benefits’ that may be owing as a result of the same BC car accident.
The Plaintiff’s lawyer obtained a report that made some rehabilitation recommendations. This report was shared with the Plaintiff’s treating physician who adopted some of the recommended treatments. The ICBC defence lawyer argued that this disclosure ‘waived’ the claim for privilege. The Plaintiff lawyer disagreed. The ICBC defence lawyer made a motion asking the BC Supreme Court to order that the privately hired report be handed over to ICBC. Master Caldwell of the BC Supreme Court dismissed the motion stating that:
I am unaware of any authority which would dictate that reports which are prepared for purposes of litigation but which are provided to an individuals GP for treatment purposes lose the protection of privilege. No such authority was provided to me.
This is a great result for Plaintiff’s involved in ICBC claims and is certainly must reading for an ICBC claims Plaintiff lawyer who wishes to share a private report with a client’s treating doctor for treatment purposes.

Contact

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

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