OK, this post is a little off-topic but when I came across this bit of legal folklore I had to dig deeper and find out if it was true.
Recently a regular reader of this blog shared a publication with me which stated that in the 1990’s a New Mexico politician became so fed up with psychiatric expert witnesses he proposed an amendment to a State Bill which would have required psychologists and psychiatrists to dress like wizards when giving expert evidence. The Proposed law stated as follows:
When a psychologist or psychiatrist testifies during a defendant’s competency hearing, the psychologist or psychiatrist shall wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightning bolts. Additionally, a psychologist or psychiatrist shall be required to don a white beard that is not less than 18 inches in length, and shall punctuate crucial elements of his testimony by stabbing the air with a wand. Whenever a psychologist or psychiatrist provides expert testimony regarding a defendant’s competency, the bailiff shall contemporaneously dim the courtroom lights and administer two strikes to a Chinese gong
A quick internet search fails to reveal any authoritative source verifying this story. Nor could I find corroboration searching New Mexico’s Legislature’s website.
Having lived in The Land of Enchantment for close to a decade I thought I’d go the extra mile and see if I could verify this story myself. This morning I went straight to the source and asked former New Mexico State Senator Duncan Scott whether this bit of legal folklore was fact or fiction. Mr. Scott, who is now in private practice in Albuquerque, NM, was kind enough to take my phone call.
Turns out the story is true. Mr. Scott tells me that he tacked this amendment onto a Bill in 1995 and, despite its clearly satirical nature, it passed with a unanimous Senate vote. The amendment was then removed from the Bill prior to receiving House approval so it never did become law.
Tag: expert witnesses
Dr. Hymie Davis is a psychiatrist who has been frequently retained by ICBC to provide expert opinions as to the extent of Plaintiff’s accident related injuries. (You can click here to access my previous posts setting out the billings of Dr. Davis and other experts often retained by ICBC). In a judgement released last week, the BC Supreme Court harshly criticized Dr. Davis and took the unusual step of punishing the Defendant, (who was insured with ICBC), for relying on him at trial.
In last week’s case (Jayetileke v. Blake) the Plaintiff was injured in a BC motor vehicle collision. She sued for damages. Prior to trial ICBC made a formal settlement offer of $122,500. The Plaintiff rejected this offer and went to trial. She was ultimately awarded about $9,000 less than the settlement offer by the trial judge.
Normally, in these circumstances, ICBC would be entitled to their costs and possibly double costs from the time of their offer onward. Mr. Justice Dley, however, refused to follow this usual course finding that not only should the Defendant not be awarded costs, but they should pay the Plaintiff costs. The reason for this departure was a finding that Dr. Davis was “nothing more than an advocate thinly disguised in the cloak of an expert” and he should not have been relied on by the defence at trial.
Mr. Justice Dley provided the following damaging criticism of Dr. Davis as an expert witness and warning to lawyers who intend to rely on experts who have a history of crossing the line into advocacy:
 Dr. Davis had a history before the courts where his evidence was rejected and his objectivity called into question: Grewal v. Brar et al, 2004 BCSC 1157,  B.C.J. No. 1819; Gosal v. Singh, 2009 BCSC 1471,  B.C.J. No. 2131; Kelly v. Sanmugathas, 2009 BCSC 958,  B.C.J. No. 1413; and Smusz v. Wolfe Chevrolet, 2010 BCSC 82,  B.C.J. No. 114.
 A witness may have a poor day in court – that does not mean the witness was dishonest or forever unreliable. However, Dr. Davis had displayed an alarming inability to appreciate his role as an expert and the accompanying privilege to provide opinion evidence.
 The defence was alive to his propensity to abuse the role of an expert. His reputation would have been known from the cited decisions. Plaintiff’s counsel succinctly set out the concerns about Dr. Davis in a letter dated January 29, 2010, which stated:
1. Although he may have once been a qualified expert in psychiatry and able to give opinion evidence in court, we suggest he no longer is properly qualified to give opinion evidence. We will suggest that he is no longer aware of his duty to assist the court and in reality he is an advocate for ICBC. Additionally, we will submit that he has been so consistently discredited by the courts of this Province that he is incapable of being qualified as an expert;
2. His report is replete with advocacy. The report is an attempt [to] neutralize any material/opinions which support the plaintiff’s claim rather than providing an objective medical opinion;
3. His report contains many opinions and arguments that are beyond his expertise; and
4. The information apparently gleaned from the plaintiff is inaccurate and incomplete and coloured to advance his position.
 In spite of the concerns that the Courts have expressed, the defence nonetheless proffered Dr. Davis as an expert in opposition to the plaintiff’s complaints of depression and anxiety. My assessment of Dr. Davis was as follows (oral reasons May 13, 2010):
 Dr. Hymie Davis, a psychiatrist, examined Ms. Jayetileke on January 12, 2010 at the request of the defence. I find his evidence to be unreliable. I give it no weight for the following reasons.
 Dr. Davis was an advocate. He was argumentative, defensive, non-responsive, and prone to rambling discourses that were not relevant to the questions posed in cross-examination.
 Dr. Davis was asked to leave the courtroom so that counsel could argue about questions to be put to him. Dr. Davis was seen peeking into the courtroom and listening to the discussion. He was again asked to leave. In spite of these instructions given to him, Dr. Davis hovered within hearing distance and, on four occasions, stuck his head into the courtroom to hear what was occurring.
 Dr. Davis conceded that without his notes, he would not be able to recall the discussion with Ms. Jayetileke. He relied on his notes to prepare his report.
 Dr. Davis had noted that Ms. Jayetileke awakened once or twice a week and that this was in some measure related to the accident-related symptoms. He was adamant Ms. Jayetileke had not said that she awakened once or twice a night. He said that his notes would reflect what Ms. Jayetileke had told him.
 His notes referred to Ms. Jayetileke awakening once or twice but did not specify whether that was nightly or weekly. Nonetheless, Dr. Davis tried to point out other references in his notes that meant a weekly occurrence. Those references did not strengthen his evidence. They simply confirmed the unreliability of his testimony.
 Dr. Smith had commented about how important it was for the history-taking to be done in a setting where the patient was comfortable and at ease with the interviewer. Dr. Davis’s demeanour would not lend itself to Ms. Jayetileke being at ease in his presence so that an effective and accurate history could have been taken. Ms. Jayetileke was under the impression that Dr. Davis did not take things seriously. I accept her view of the interview and prefer her evidence to that of Dr. Davis.
 For a trial to be fair, the Court must allow each party to put its best case forward. Where a party seeks to advance its position with reckless abandon seeking only the ultimate goal of victory and using questionable evidence along the way, that party risks sanctions in the form of costs penalties. Where the conduct is reprehensible and deserving of reproof and rebuke, the penalty is special costs. “Costs considerations are meant to guide counsel and litigants in the choices and strategies they pursue in litigation”: Karpodinis v. Kantas, 2006 BCCA 400,  B.C.J. No. 2074 at para. 4.
 In this case and against the backdrop of previous judicial comment, the defence tendered Dr. Davis. He was nothing more than an advocate thinly disguised in the cloak of an expert. That is conduct deserving of rebuke and from which the Court disassociates itself.
 Dr. Davis attempted to inject levity to the proceedings when he was introduced to the Court – his reference to scotch can only be taken as an attempt to be humorous. However, these are serious and solemn proceedings and should be treated as such. His opening comments were unnecessary and unhelpful.
 Dr. Davis’ refusal to remove himself from earshot of the Court proceedings despite repeated requests was reprehensible. His conduct simply confirmed a lack of respect for Court proceedings.
 Under these circumstances, special costs are to be awarded against the defendant.
 The special costs will be the equivalent of the costs of the entire trial. The defendant will be deprived of any costs that it might otherwise have been entitled to as result of the offer to settle.
 The plaintiff is awarded costs as if there had been no offer to settle made. The defendant shall receive no costs.
 The plaintiff shall receive costs of this application.
As previously discussed, one of the biggest changes in the New BC Supreme Court Civil Rules is an overhaul to the requirements for admissibility of expert opinions. These changes have created some tension in personal injury claims.
In no area of law are expert opinions used more frequently than in personal injury lawsuits. The opinions of treating physicians are often crucial in the success of a personal injury claim. In fact, if a plaintiff fails to call their own doctor in support of their case the Court could draw an ‘adverse inference‘ and assume the doctor will say something negative.
One of the changes imposed by the New Rules is a requirement that experts certify that their duty is to “assist the court and not to be an advocate for any party“. In reality, this requirement always existed although it was not specifically spelled out in the former rules. Despite this, some treating physicians have been concerned with this new explicit requirement and refuse to provide expert opinions on the basis that they feel they are ethically required to be advocates for their patients.
Fortunately, the BC College of Physicians and Surgeons has squarely addressed this concern and informed their members that the New Rules of Court are not inconsistent with doctors duties to their patients. Specifically, in the September 2010 issue of the College’s quarterly publication physicians were advised as follows:
The College does not view the New BC Supreme Court Civil Rules to be in conflict with the Canadian Medical Association Code of Ethics, including the fundamental responsibility to consider first the well being of the patient. With respect to the duty imposed under Rule 11-2 the College has always expected physicians providing expert reports to be fair, objective, and provide opinions that are supported by available information.
This expectation applies equally to physicians whether they are appointed by the plaintiff, defence, jointly or by the Court. Additionally, whether physicians are acting as experts in the capacity of treating physicians or independent medical experts, they still must provide balanced and objective reports. The College does recommend that, when asked to provide an expert opinion, treating physicians discuss with their patients the physician’s duty to assist the court and not be an advocate for any party.
The truth of the matter is that treating doctors should be advocates for their patients health. They should not be advocates for their patients personal injury claims or other legal matters. The above clarification will hopefully assist physicians who have felt conflicted from providing opinions under the New Rules of Court.
A common theme when ICBC or other personal injury claims go to trial is that of dueling expert witnesses. Often times the Plaintiff’s treating physicians provide an opinion to the Court that is contradicted by experts hired by defendants or insurance companies. In deciding how much the claim is worth a Court must navigate through these competing opinions and decide who to believe.
Treating doctors, due in part to their long term relationship with their patients, sometimes provide their opinion in an argumentative way. While well intentioned such opinions can do more harm than good. The reason being is that the Rules of Court require expert witnesses to be neutral when presenting their opinion to the Court. When experts advocate for one side or another they risk having their opinion discounted or even being excluded from evidence altogether. The potential harm caused by expert advocacy was demonstrated in reasons for judgement released today by the BC Supreme Court, Vernon Registry.
In today’s case (Gendron v. Moffat) the Plaintiff was involved in a motor vehicle collision in 2008. Fault for the crash was admitted by the opposing motorist focusing the trial on the value of the Plaintiff’s ICBC claim. The Plaintiff sustained various injuries. The Court heard different opinions as to the extent of these from the Plaintiff’s treating doctor and from the expert hired by ICBC.
The Plaintiff’s GP provided the opinion that the Plaintiff suffered from chronic injuries as a result of the Crash. The doctor hired by ICBC disagreed and gave evidence that the accident related injuries largely ran their course and the Plaintiff’s symptoms were better explained by unrelated arthritis. Ultimately Mr. Justice Cole preferred the evidence of ICBC’s doctor. In coming to this conclusion the Court found that the Plaintiff’s doctor acted as an advocate and excluded portions of her evidence and discounted other parts. Mr. Justice Cole provided the following useful comments:
 The doctor summarized her condition as follows:
Ms. Gendron sustained grade 2 strains to her cervical, thoracic and lumbar spines and a grade 2 strain to her right shoulder when she was T-boned in an intersection by a vehicle that had run through a red light. The impact imparted both forward and rotational acceleration forces through Ms. Gendron, and the subsequent symptom pattern and chronology of injury were consistent with the mechanism and severity of injury. Ms. Gendron has consistently demonstrated a high level of motivation to recover from her injuries, and has remained at work since her MVA , albeit in a reduced capacity. [Emphasis added.]
 The last two sentences of that summary I had removed, as in my view, the first sentence dealing with the impact of the accident and acceleration forces were not within the expertise of the doctor and the comment about her high level of motivation demonstrated that the doctor was acting more as an advocate than as an independent professional.
 The doctor was also critical of Dr. T. O’Farell, an orthopaedic surgeon who filed a report and gave evidence at trial. He was of the view that Dr. O’Farell’s report was “below the currently accepted standard for a specialist’s medical legal report.” Again, that sentence was removed on the basis that the family doctor was more of an advocate than an independent professional and lacked the expertise to make such a statement…
 I am of the view that the plaintiff’s family physician, while a highly qualified doctor, is more of an advocate than an independent medical specialist and that it is almost impossible to be objective and an advocate at the same time. I therefore prefer the evidence of Dr. O’Farell that her neck pain is due to arthritis in her spine…
 In conclusion, I find that the injuries sustained by the plaintiff in the motor vehicle accident for which the defendant is liable, have substantially resolved.
While the doctor’s advocacy was not the sole reason for the Plaintiff’s lack of success at trial (The Court also found that the Plaintiff was not a credible witness) it goes to show that an overzealous treating physician can do more harm than good when providing an opinion to the Court. It is important for treating doctors to give their evidence in a fair and balanced manner to maximize the chance of having their opinions accepted at trial.
Further to my recent post on this topic, the evidence of biomechanical engineers is becoming more common in BC injury lawsuits.
Biomechanics is the study of forces applied to biological tissue and the injuries that can result from such forces. In litigation it is easy to imagine the use such expert opinion evidence can be put to in proving causation of injuries.
Biomechanics is a relatively new scientific field. Courts are generally conservative and can be slow to accept ‘novel‘ scientific evidence. Despite judicial conservatism, biomechanical evidence does appear to be gaining acceptance by BC Courts as demonstrated in reasons for judgment released today.
In today’s case (More v. Bauer) the Plaintiff suffered a severe brain injury while playing hockey. The Plaintiff claimed his helmet was negligently designed and sued the manufacturers of the helmet. In support of his claim he called a biomechanical engineer who gave evidence in the field of biomechanics and the biomechanics of safety standards.
The Defendants did not challenge his qualifications to give this evidence, however, at the conclusion of the expert’s testimony the Defendants brought a motion to rule the testimony inadmissible arguing that the expert’s “underlying methodology and science are so flawed that the evidence (does not meet the legal test for admissibility)” and that the expert was “biased and purposely misled the court to assist the plaintiff“.
Mr. Justice Macaulay rejected the motion and concluded that the evidence was in fact admissible. In doing so the Court recognized biomechanics as an “accepted area of scientific and academic expertise“. The Court reasoned as follows:
 Dr. Stalnaker has a Ph.D. in theoretical and applied mechanics. Through much of his lengthy career, he has worked in the branch field of biomechanics. He also has practical experience in standards development for certification purposes although not specifically with regard to hockey helmet standards. Biomechanics involves the study of body kinematics ? the forces applied to biological tissue and the injuries that can result. The plaintiffs sought to qualify Dr. Stalnaker as an expert in biomechanics and the biomechanics of safety standards…
 Mohan sets out the current approach to the admissibility of expert evidence. Mr. Justice Sopinka outlines the following criteria for the admissibility of opinion evidence:
(1) the evidence must be relevant to some issue in the case;
(2) the evidence must be necessary to assist the trier of fact;
(3) the evidence must not contravene an exclusionary rule; and
(4) the witness must be a properly qualified expert.
 Assessing reliability includes determining whether the science or technique the witness uses to reach a conclusion is “novel”. Novel science will be subject to a stricter level of scrutiny than theories or techniques that are more generally accepted…
 To conclude, in assessing reliability when exercising my gatekeeper role, I must determine whether the approach the impugned expert takes is novel. If Dr. Stalnaker is relying on a novel theory or technique, I should exercise a higher level of scrutiny when examining reliability, in order to prevent the trial becoming “a medical or scientific convention with an exchange of highly speculative points of view” (R. v. J.E.T. at para. 77).
 In assessing reliability, I may find the Daubert factors helpful, but need not apply them too strictly. The purpose of applying the factors is to determine the degree of uncertainty present in the impugned expert’s analysis. The question is whether “the degree of uncertainty is unacceptable given the likely effect upon the trial process and the trier of fact. The level of acceptable uncertainty may depend upon the purpose for which the evidence is tendered and the use made of the evidence by other experts” (Wolfin at para. 20). Both the mode of trial and the importance of the evidence to making a final determination of the matter are factors to consider. If a theory or technique is implausible it will not be admitted.
 I remain persuaded that biomechanics is a recognized and accepted area of scientific and academic expertise. I am satisfied that Dr. Stalnaker is qualified to give opinion evidence in the area of biomechanics including in relation to safety standards. Opinion evidence is necessary to assist me in drawing appropriate inferences of fact.
An imporant skill of a trial lawyer is being able to persuade the Court, in appropriate circumstances, to exclude expert opinion evidence that is damaging to your client’s case. Two of the many objections that can be raised against opposing expert evidence are bias and lack of necessity. Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with these areas of the law.
In today’s case (Beazley v. Suzuki Motor Corporation) the Plaintiff was injured in a 1994 roll-over car crash. The Plaintiff claimed that the design of the vehicle involved was defective and sued various parties including GMC. GMC argued that the vehicle was not negligently designed and further that the Plaintiff was the author of her own misfortune for failing to wear her seatbelt.
In support of their case the Defendants obtained two expert reports. The first was a report from an engineer (who was an employee of the Defendant GMC) who provided opinions about the handling, stability and rollover characteristics of the vehicle in question and whether the vehicle was defective. The second was the report of a statistician who addressed the injury risk to belted and unbelted occupants in rollover accidents.
The Plaintiff applied to exclude these reports from evidence. They argued that the engineer’s employment relationship with the Defendant at the very least created a reasonable apprehension of bias that should disqualify him from acting as an expert. With respect to the statistician’s report the Plaintiffs argued that this evidence was not helpful for the Court.
Mr. Justice Goepel rejected the Plaintiff’s submissions with respect to bias but did agree with the submissions with respect to the statistical evidence. In coming to these conclusions Mr. Justice Goepel provided the following useful summaries of these areas of law:
 Canadian courts appear to have taken different positions on the issue of whether an expert witness’ bias or perceived bias will disqualify him or her from giving evidence at trial. Some courts have held that for expert evidence to be admissible, the expert must be seen to be absolutely neutral and objective. Other courts have concluded that a lack of objectivity, neutrality and independence are matters that only impact the weight to be afforded that expert. Romilly J. in United City Properties Ltd. v. Tong, 2010 BCSC 111 at paras. 35-68, has exhaustively reviewed the jurisprudence.
 The cases are not easily reconciled. Where there is a personal relationship between the proposed expert and the party, where the expert has been personally involved in the subject matter of the litigation or where the expert has a personal interest in the outcome, the expert has not been allowed to testify. Examples of such cases are Fellowes, McNeil v. Kansa General International Insurance Co. (1998), 40 O.R. (3d) 456 (Gen. Div.); Royal Trust Corporation of Canada v. Fisherman (2000), 49 O.R. (3d) 187 (Sup. Ct. J.); Bank of Montreal v. Citak,  O.J. No. 1096 (Sup. Ct. J.); and Kirby Lowbed Services Ltd. v. Bank of Nova Scotia, 2003 BCSC 617. In cases where the relationship between the expert and the party is more institutional in nature, the evidence has been admitted subject to weight. Examples of such cases are R. v. Klassen, 2003 MBQB 253 and R. v. Inco Ltd.(2006), 80 O.R. (3d) 594 (Sup. Ct. J.).
 Expert opinion evidence is admissible only where a judge or jury are unable, due to the technical nature of the facts, to draw appropriate inferences. The defendants seek to call Ms. Padmanapan’s statistical evidence in order to establish a causal connection between a failure to wear a seatbelt in the course of a rollover accident and increased injuries. In certain circumstances statistical evidence can be helpful in determining causation: Laferrière v. Lawson,  1 S. C.R. 541.
 It has been long recognized in British Columbia that a party who fails to use an available seatbelt and sustains injuries more severe than if the seatbelt had been worn will be found to be contributory negligent: Yuan et al. v. Farstad (1967), 66 D.L.R. (2d) 295 (B.C.S.C.); Gagnon v. Beaulieu,  1 W.W.R. 702 (B.C.S.C.).
 While there appears to have been statistical evidence led in Yuan and in Gagnon, subsequent cases have held that such evidence is not necessary. In Lakhani (Guardian ad litem of) v. Samson,  B.C.J. No. 397 (S.C.) McEachern C.J.S.C. (as he then was) noted at para. 3:
I reject the suggestion that engineering evidence is required in these cases. The court is not required to leave its common sense in the hall outside the courtroom, and the evidence is clear that upon impact in both cases the Plaintiff’s upper body was flung or thrown forward striking the dashboard or the steering wheel. And common sense tells me that the restraint of a shoulder harness would have prevented that, and therefore some of the injury from having occurred.
 To succeed on the seatbelt defence, the onus will be on the defendants to establish upon a balance of probabilities that the use of a functioning seatbelt would have avoided, or minimized Ms. Spehar’s injuries: Harrison v. Brown,  1 W.W.R. 212 (B.C.S.C.); Terracciano (Guardian ad litem of) v. Etheridge (1997), 33 B.C.L.R. (3d) 328 (S.C.).
 The statistical evidence to be led from Ms. Padmanapan is, in my opinion, not necessary and will not assist me as trier of fact in determining the issue of contributory negligence. If the evidence is not necessary, it does not meet the test of admissibility.
I’ve written many times about the role expert witnesses play in injury claims. From diagnosing injury, commenting on causation, prognosis, future care needs and disability expert witnesses play a crucial role in ICBC and other injury lawsuits.
In addition to experts called by the Plaintiff, the Rules of Court also permit the Defendant to retain their own experts in order to ‘level the playing field‘.
Expert witnesses owe a duty to the Court to present their opinions impartially and not to act as advocates for the side that hired them. Sometimes, regrettably, experts forget this and stray into the field of advocacy. When this happens the expert’s opinion can be rejected entirely or even be kept from entering into evidence in the first place. Today reasons for judgement were released by the BC Supreme Court, Nanaimo Registry, discussing this area of the law.
In today’s case (Hodgkins v. Street) the Plaintiff was involved in a BC Car Crash and was awarded damages of just over $650,000. (You can click here to read my post summarizing the trial judgement) The parties could not agree on what damages should be awarded for a tax gross-up award and management fees and a Court application was brought.
Both the Plaintiff and Defendant produced expert reports from economists. The Plaintiff argued that the Defence report ought to be rejected in its entirety because the defence expert was a “partisan advocate“. Mr. Justice Kelleher disagreed with this submission but before reaching this conclusion gave the following useful summary on the role of expert witnesses in BC litigation:
 In Tsilhqot’in Nation v. Canada (Attorney General), 2005 BCSC 131 at para. 32, the court referred to the duties and responsibilities of expert witnesses discussed in National Justice Compania Naviesa S.A. v. Prudential Assurance Co. Ltd. (“The Ikarian Reefer”),  2 Lloyd’s Rep. 68:
1. Expert evidence presented to the court should be and should seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
2. An expert should provide independent assistance to the court by objective unbiased opinion in relation to matters within his or her expertise. An expert witness should never assume a role of advocate.
3. An expert should state the facts or assumptions on which the opinion is based and should not omit to consider material facts which detract from that opinion.
4. An expert should make it clear when a particular question or issue falls outside of the expert’s expertise.
5. If an expert’s opinion is not properly researched because insufficient date is available, this must be stated with an indication that the opinion is no more than a provisional one.
 I am in respectful agreement with the guidelines put forward in the Ikarian Reefer. As trial judges, we must be wary of advocacy dressed up in the guise of an expert’s report.
If you are involved in an injury lawsuit and are served with an expert report by opposing counsel that you think is not objective the above passage should be kept handy. You can challenge the opposing party’s experts if they contain “advocacy presented in the guise of opinion evidence” and such objections should be raised to keep reports that cross the line out of Court.
One of the biggest changes in the new BC Supreme Court Civil Rules (click here and here to read my previous posts on these rules) are those with respect to the requirements for admissibility of expert reports. These changes are significant for ICBC and other Personal Injury Lawyers because these types of lawsuits are heavily dependent on expert opinion evidence. From medical doctors to engineers to vocational specialists, personal injury trials are perhaps more reliant on expert evidence than any other type of trial.
One thing we should all keep in mind is that as of July 1, 2010 ongoing lawsuits will be deemed to be started under the new rules. This means that any report ordered now that will be used in trial after July 1, 2010 will have to comply with the new rules. For this reason it is vital that lawyers and expert witnesses alike become immediately familiar with the new Civil Rules.
Under the current Supreme Court Rules expert evidence requirements are governed by Rule 40-A. These are rather modest. Rule 40A(2) requires that expert reports be exchanged “to every party of record at least 60 days before the statement is tendered in evidence” and Rule 40A(5) requires that the reports set out “the qualifications of the expert, the facts and assumptions on which the opinion is based, and the name of the person primarily responsible for the content of the statement”
Under the new BC Civil Rules requirements of expert reports are set out in Rule 11-6. Below I reproduce Rule 11-6 in its entirety. On review it is clear that the new rule has significant changes compared to the current Rule 40A.
One of the most obvious changes is the time when expert evidence needs to be exchanged. Currently reports need to be exchanged 60 days before they are put into evidence. The new rule requires reports to be exchanged at least 84 days ‘before the scheduled trial date‘ and goes on to create a second category of reports called “responding reports” which need to be served “at least 42 days before the scheduled trial date”
The other significant change relates to requirements for admissibility. Rule 11-6(1) requires experts to be much more clear and detailed about how they arrived at their opinions as compared to the current Rule 40A. Although, to be fair, these changes are really little more than a codification of the common law that has developed around Rule 40-A.
The new rule also improves on the disclosure obligations to opposing counsel. Under the current rule opposing counsel is not entitled to review the experts working files and materials until the expert takes the stand. This can lead to unnecessary delay and surprise at trial. Under the new Rule 11-6(8) opposing parties are entitled to fulsome pre-trial disclosure of the experts materials which will let lawyers better prepare for cross examination.
Other parts of Rule 11 contain interesting provisions about court appointed experts, joint experts and the role of the expert in the lawsuit. I hope to write about these shortly. Overall these improvements will likely be for the better, however, lawyers and doctors can be stubborn and it may take some adjustment for all of us to get used to these changes.
RULE 11-6 – EXPERT REPORTS
Requirements for report
(1) An expert’s report that is to be tendered as evidence at the trial must be signed by the expert, must include the certification required under Rule 11-2 (2) and must set out the following:
(a) the expert’s name, address and area of expertise;
(b) the expert’s qualifications and employment and educational experience in his or her area of expertise;
(c) the instructions provided to the expert in relation to the proceeding;
(d) the nature of the opinion being sought and each issue in the proceeding to which the opinion relates;
(e) the expert’s opinion respecting each issue and, if there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range;
(f) the expert’s reasons for his or her opinion, including
(i) a description of the factual assumptions on which the opinion is based,
(ii) a description of any research conducted by the expert that led him or her to form the opinion, and
(iii) a list of every document, if any, relied on by the expert in forming the opinion.
Proof of qualifications
(2) The assertion of qualifications of an expert is evidence of them.
Service of report
(3) Unless the court otherwise orders, at least 84 days before the scheduled trial date, an expert’s report, other than the report of an expert appointed by the court under Rule 11-5, must be served on every party of record, along with written notice that the report is being served under this rule,
(a) by the party who intends, with leave of the court under Rule 11-3 (9) or otherwise, to tender the expert’s report at trial, or
(b) if 2 or more parties jointly appointed the expert, by each party who intends to tender the expert’s report at trial.
Service of responding report
(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.
Supplementary report of joint or court-appointed expert
(5) If, after an expert’s report is served under subrule (3) (b), the expert’s opinion changes in a material way,
(a) the expert must, as soon as practicable, prepare a supplementary report and ensure that that supplementary report is provided to the party who served the report under subrule (3), and
(b) the party to whom the supplementary report is provided under paragraph (a) of this subrule must promptly serve that supplementary report on every other party of record.
Supplementary report of own expert
(6) If, after an expert’s report is served under subrule (3) (a) or (4), the expert’s opinion changes in a material way and the party who served the report intends to tender that expert’s report at trial despite the change,
(a) the expert must, as soon as practicable, prepare a supplementary report and ensure that that supplementary report is provided to the party, and
(b) the party must promptly serve that supplementary report on every other party of record.
Requirements for supplementary report
(7) A supplementary report under Rule 11-5 (11) or under subrule (5) (a) or (6) (a) of this
(a) be identified as a supplementary report,
(b) be signed by the expert,
(c) include the certification required under Rule 11-2 (2), and
(d) set out the change in the expert’s opinion and the reason for it.
Production of documents
(8) Unless the court otherwise orders, if a report of a party’s own expert appointed under Rule 11-3 (9) or 11-4 is served under this rule, the party who served the report must,
(a) promptly after being asked to do so by a party of record, serve on the requesting party whichever one or more of the following has been requested:
(i) any written statement or statements of facts on which the expert’s opinion is based;
(ii) a record of any independent observations made by the expert in relation to the report;
(iii) any data compiled by the expert in relation to the report;
(iv) the results of any test conducted by or for the expert, or of any inspection conducted by the expert, if the expert has relied on that test or inspection in forming his or her opinion, and
(b) if asked to do so by a party of record, make available to the requesting party for review and copying the contents of the expert’s file relating to the preparation of the opinion set out in the expert’s report,
(i) if the request is made within 14 days before the scheduled trial date, promptly after receipt of that request, or
(ii) in any other case, at least 14 days before the scheduled trial date.
Notice of trial date to expert
(9) The person who is required to serve the report or supplementary report of an expert under this rule must, promptly after the appointment of the expert or promptly after a trial date has been obtained, whichever is later, inform the expert of the scheduled trial date and that the expert may be required to attend at trial for cross-examination.
Notice of objection to expert opinion evidence
(10) A party who receives an expert report or supplementary report under this Part must, on the earlier of the date of the trial management conference and the date that is 21 days before the scheduled trial date, serve on every party of record a notice of any objection to the admissibility of the expert’s evidence that the party receiving the report or supplementary report intends to raise at trial.
When objection not permitted
(11) Unless the court otherwise orders, if reasonable notice of an objection could have been given under subrule (10), the objection must not be permitted at trial if that notice was not given.
In a judgement released today a total of $81,694 was awarded in compensation as a result of a 2004 ‘chain rear end’ accident in BC.
The accident involved mutliple vehicles and the force of the crash was enough to write off the Plaintiff’s car. Fault was admitted by ICBC leaving only quantum of damages at issue.
As a result of crash the court found that the Plaintiff suffered from a fracture at T12 and a disc injury to T11 / T12 and perhaps T9 / T10 (basically fractures to the mid back) and that the Plaintiff ‘has gone on to develop a chronic pain syndrome with discomfort, sleep disturbance and depression.
The court went on to award $60,000 for pain and suffering, $20,000 for Loss of Earning Capacity and just over $1,000 in special damages (out of pocket expenses as a result of the accident.)
This case is worth reading for the judge’s discussion of credibility. When people complain of ‘chronic pain’ in an ICBC claim their credibility is always at issue. The reason is obvious, pain cannot be measured objectively. People can only describe their pain and a judge or jury can believe this descrpiton or reject it. In this case the judge had problems with the Plaintiff’s credibility but accepted that her chronic pain syndrome was legitimate.
More interesting is the judge’s comments on the credibility of the expert witnesses that testified. In this case ICBC, on behalf of the Defendant, hired an orthopaedic surgeon to examine the Plaintiff. He testified, in essence, that the Plaintiff had no serious injuries or ongoing problems. The court rejected this doctor’s evidence finding that ‘it was obvious to me that he had not spent as much time, nor was he as objective in his assessment of the Plaintiff (as her own physicians were). (ICBC’s doctor) impressed upon me that he was more of an advocate for ICBC than an objective expert, and I therefoe attach little wieght to his evidence.
This case is also worth reviewing for the judge’s great summary of the law relating to future wage loss at paragraphs 34 and 35.
Further to my previous post on ICBC and high billing doctors I am pleased to report that ICBC has now published their 2007 “statements and schedules of financial information“ which reveal, amongst other things, the “amounts paid to suppliers of goods and services in 2007“.
One of the ‘goods and services’ often purchased by ICBC is the “Independent Medical Exam”. This is done either to get an ‘independent’ opinion of the medical condition of someone seeking ‘no-fault benefits’ from ICBC, or, further to the Rules of Court which permit one side of a lawsuit to get an ‘independent’ exam addressing the medical condition of a plaintiff involved in an ICBC injury tort claim.
As an ICBC claims lawyer I find it interesting to see which doctors ICBC routinely uses to conduct these independent medical exams. From reviewing these annual reports it becomes clear that there is a small number of doctors who do a significant amount of work on behalf of ICBC.
As promised in my earlier blog, below are some of the highlights of the 2007 report of doctor billings:
Dr. Kevein Favero (Orthopedic Surgeon, Langley, BC): $188,814
Dr. N. K. Reebye (Physical Medecine and Rebabilitation, New Westminster): $339,243
Dr. Peter M. Rees (Neurologist, Burnaby): $215,788
Dr. J. F Schweigel (Orthopedic Surgeon) : $924,243
Dr. D. M. Laidlow: (Physical Medicine and Rehabilitation, Westbank) $165,657
Dr. Robert W. McGraw: (Orthopedic Surgoen, Vancouver) $224,375
Dr. T O’Farrell: (Orthopedic Surgoen, Kelowna) $147,003
Dr. James Warren: (Orthopedic Surgoen, Victoria) $111,041
Dr. O. M. Sovio: (Orthopedic Surgeon, Abbotsford) $252,916
Dr. H. Davis: (Psychiatrist, Vancouver) $164,755
Dr. Marc Boyle (Orthopaedic Surgeon, North Vancouver) $353,822
Dr. Paul Bishop (Vancouver, BC) $357,358
Dr. Mark Crossman (Physical Medicine and Rehabilitation, Vancouver) $83,577
Dr. I. G. Dommisse (Orhopaedic Surgoen, New Westminster) $156,650
Dr. H. E. Hawk (Orthopedic Surgeon, Vancouver) $280,000