Tag: Joint Experts

Joint Expert Witness Appointed Despite "Vigorous" Defendant Opposition


Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, appointing a joint expert witness against the wishes of a Defendant in an on-going legal dispute.  Although this recent case is not a personal injury claim I summarize the findings because it is the first case I’m aware of appointing a joint witness in a contested application under the ‘new’ BC Supreme Court Civil Rules.
In the recent case (Leer and Four L. Industries v. Muskwa Valley Ventures Ltd.) the Plaintiff and Defendants had a falling out in their commercial dealings.  The Plaintiff sued seeking an order that the Defendant “purchase his shares at fair market value“.  At a Case Planning Conference the Plaintiff sought an order that a joint business valuator be appointed to value the shares.  The personal Defendant “vigorously oppose(ed)” the idea of a joint expert.
Ultimately Master Scarth granted the order and in doing so provided the following useful comments of general interest in applications for joint experts:
[4] Rule 5-3(1)(k)(i) provides that at a case planning conference, a judge or master may order that expert evidence on any one or more issues be given by one jointly-instructed expert. Given the prohibition in Rule 5-3(2)(a) against hearing an application supported by affidavit evidence at a case planning conference, the court is required to rest any exercise of discretion on the pleadings and submissions to the extent that they do not require recourse to affidavit evidence: Przybysz v. Crowe, 2011 BCSC 731 at para. 59; Vernon v. British Columbia (Liquor Distribution Branch), 2010 BCSC 1688; and Jurezak v. Mauro, 2011 BCSC 512 – considering Rule 12-2(11)…
[14] Rule 11-3 was recently considered in Benedetti v. Breker, 2011 BCSC 464. Master Baker noted that while joint experts are not new to litigation in British Columbia, the new rules clearly have brought greater focus and emphasis to the appointment of joint experts and invite wider application of that process: paragraph 11…
[18] The personal defendants object to paying for expert evidence which is part of the plaintiffs’ case. Why should they pay for a report which the plaintiffs require? The answer is because it is a proportionate way to conduct this proceeding.



[19] Read together with Rule 1-3 which sets out the object of the rules, Rule 11-3, like joint expert rules in other jurisdictions, is intended to reduce litigation costs and promote the conduct of a proceeding in ways consistent with the amount involved. While in this case, the amount at issue is not yet resolved and will not be until an opinion has been obtained, the buyout of Royer in 2009 gives some indication that the amount is likely modest. In such circumstances, proportionality suggests that an effort should be made to avoid duplication of the costs of obtaining an expert report which is the likely outcome if a joint report is not ordered.

[20] It follows that the parties are required to share the cost of the expert, at least at the outset. The ultimate determination as to costs is for the trial judge.

[21] I will add that a report as to value may benefit all parties in another way. The value of Leer’s shares has been an issue and a topic of discussion between the parties since 2009, when the personal defendants offered him a buyout. A valuation will provide the parties with the information required to settle this longstanding dispute, and may promote that result.

[22] I conclude that it is appropriate to exercise my discretion in favour of the plaintiffs and to make the order set out in Rule 5-3 that expert evidence as to valuation of Leer’s shares be given by a jointly appointed expert.



Joint Experts and the New Rules of Court


Can the BC Supreme Court order that parties use a joint expert in a personal injury trial against the wishes of one of the parties?  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing this question.
In today’s case (Benedetti v. Breker) the Plaintiff was involved in a 2005 collision.  He was 17 at the time and allegedly sustained a brain injury with psychiatric consequences.  The Plaintiff brought an application asking that the Court order that Dr. O’Shaugnessy be appointed as a joint expert in the lawsuit.  The Defendant objected to having a joint expert.  Master Baker dismissed the motion and in doing so found that the Rules of Court do not permit a joint expert to be appointed over the objection of a party unless its done at a Case Planning Conference.  The Court provided the following reasons:

[11] Jointly appointed experts are not new to litigation in British Columbia.  In the family law context section 15 of the Family Relations Act has, for over 30 years, provided for the appointment of experts to investigate and prepare custody and access reports.  Realty appraisers are also often jointly appointed and instructed in family proceedings.  It is not all that unusual to encounter jointly-instructed experts in construction disputes.  But the new Rules clearly have brought greater focus and emphasis to the appointment of joint experts and invite the wider application of that process.

[12] Having said that, I agree with Mr. Nugent that this application does not follow the correct procedure for such an appointment.  He is correct in his analysis and that the only provision in the new Rules for the appointment of a joint expert over the wishes of one or both of the parties is in Rule 5-3(1)(k)(i), authorizing the presiding Judge or Master to order

that the expert evidence on any one or more issues be given by one jointly-instructed expert

Rule 11-3, he correctly argues, only permits the court to direct who that expert will be, or other terms ancillary to the appointment.  Rule 11-3 assumes that either the parties have agreed to the concept of a joint expert, or that the court has already ordered one in a CPC.  Neither of those assumptions apply in this case.

[13] It is not for me to theorize the reasons behind Rule 11-3’s current form, or why the only provision for the court, of its own volition, to appoint a joint expert is found in the CPC rule.  Suffice it to say and conclude that the Attorney General’s Rules Revision Committee’s purpose and the legislative intent was to separate the aspects of the appointment accordingly and to leave the court appointment process in the less formal CPC procedure.

[14] Even if the authority did lie in Rule 11-3, however, I agree further with Mr. Nugent that it would not be an appropriate order in this case.  This jurisdiction is blessed with a choice of numerous medical legal experts who could function as a joint expert in this matter.  By no means is Dr. O’Shaughnessy the only suitable choice as joint expert.  To appoint him, however, is to deprive the defence of a significant or potentially significant trial stratagem.  Wilson, C.J.S.C. in Milburn et al v. Phillips long ago described the purpose of an IME: “…to put the parties on a basis of equality” or, as it is commonly offered in chambers, to level the playing field.  The plaintiff has received treatment from at least two psychiatrists and has seen a neuropsychologist (par. 3, above).  The former were, to be sure, treating physicians, but it is not clear whether the latter was for treatment or for medical-legal consultation.  Given these facts, the defence should not be deprived of unilateral access to the one psychiatric expert that it chose and notified some 15 months before this application.

[15] The accompanying argument also has merit: should Dr. O’Shaughnessy’s conclusions not assist the defence, counsel can instruct him to not prepare a report.  In such an instance Dr. O’Shaughnessy’s objective observations, test results, or the like may well be discoverable but he would not be obliged to give or disclose his opinion to the plaintiff.  This is an important tool in the defence toolkit and should not be casually ignored.

[16] Finally, while proportionality is a laudable goal and should factor into all decisions under the Rules, in this case I doubt its applicability.  With five medical reports (privileged to date, recall) with the plaintiff, it seems unlikely that proportionality will be served by directing that a sixth, that of Dr. O’Shaughnessy, be a joint report.

[17] For these reasons the application is dismissed.

Conflicting Duties? Treating Doctors Duties to Their Patients and to the Court


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.

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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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