Tag: responsive opinion evidence

"Cut and Paste Affidavit" Derails Defence Medical Exam Application

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing a defence request for an independent medical assessment of a Plaintiff in part due to the use of a “cut and paste affidavit”.
In the recent case (Mirzai-Sheshjavani v. Ho) the Plaintiff was involved in a collision and sued for damages.  As trial neared the Plaintiff served expert reports and the Defendant applied to compel the Plaintiff to attend an independent medical exam to obtain a responsive report.  The request was denied with the Court criticizing the supporting materials.  In dismissing the application Master Baker provided the following reasons:

[3]             The global response addressed the — I think the term used in some of the email was the “institutional litigant” approach of the defence. I agree in large measure with that. I agree just from the materials before me. Mr. Jiwa says there are too many of these applications, “these applications” being applications for defence medical examinations brought very proximate to the trial, often with short leave. He is correct.  There is no utility in my getting into an anecdotal review, but it has become quite common in chambers to have that application. Yes, short leave is typically given. Yes, the applications are heard, and I guess, yes, sometimes the applications are successful, perhaps often, I do not know, but it is becoming the case where a fair proportion of the short-leave applications that we hear on a daily basis relate to just this subject. His conclusion and his assertion is that this represents an institutional litigant who is, as he termed it, sitting on their hands until the trial date approaches. I do not know. I do not know whether that is the case or not. I suspect it may be because litigation is being driven by adjustors and not by counsel. I believe it may be the case that counsel are not being given enough latitude to exercise their professional judgment. I do not know.

[4]             It is not for me to tell them how to do their job, but that might explain a few things, but in the particular case before me, the affidavit in support — one of the affidavits in support — is by Dr. Hummel indicating why he needs to do a physical examination of the plaintiff and there is just absolutely no question that this is a cut-and-paste affidavit. It is taken literally verbatim from the affidavit of — I think it is — Dr. Reebye in one of the other cases cited to me – down to the punctuation.

[5]             The interesting paragraph, paragraph 9(d), where he says, “I understand that the plaintiff has been assessed by Dr. Heran and Dr. Kazemi…” — well, that was not verbatim, different doctors — “…whose reports I have not reviewed extensively, but sufficiently to determine that they noted the plaintiff’s complaints of neck, back, and shoulders causing headaches,” et cetera, on down to, “To properly assess his claimed injuries, I need to review the plaintiff’s history, accident information provided, and conduct a physical examination.”  These are all conclusions. He does not say, “Well, I notice that Dr. Heran did this or did not do this, performed this test which I think as a professional is inappropriate for the symptoms suggested”; no, nothing, he just simply says, “I need to look at this person,” and when he says that, he essentially, in my respectful view, says, “I need to do the same things Dr. Heran did,” but he just says that without giving us any reasons and, without reasons, there is no evidence, there is no requirement proven, and the application fails, but I also agree with Mr. Jiwa’s submissions that there is not a surprise here.

[6]             Yes, I can see the defence’s point, but I can also see the other elements and aspects of Dr. Kazemi’s report which, as Mr. Jiwa points out, says, among other things, he needs to be assessed for neurosurgery. Well, maybe you can say that is different than being assessed by an orthopedic surgeon, I do not know, but it is obvious that Dr. Kazemi certainly considered that a full understanding of the plaintiff’s circumstances would require further inquiry by another specialist and, in fact, the very specialist or physician of the same specialty that he considered who happens to be Dr. Heran. So no surprise there.

[7]             The application is dismissed.

Defense Expert Appointment Dismissed for "Waiting at their Peril"

Unpublished reasons for judgement were recently released by the BC Supreme Court, Victoria Registry, dismissing a defence application for an independent medical assessment for being brought too late in the process.
In the recent case (Bains v. Antle) the Plaintiff was injured in a collision and sued for damages.  The Defendant requested the Plaintiff to attend a 2 day Functional Capacity Assessment less than 84 days before trial.  The Plaintiff refused and a court application to compel attendance was brought.  Master Harper dismissed the application finding the Defendant was too late and waited at their peril.  In dismissing the application the Court provided the following reasons:
Quote late DME dismissal

Applications For Responsive Reports Ought to be "Extremely Rare"

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, criticizing the volume of applications the Court is seeing with Defendants arguing that they need to subject plaintiff’s to physical examinations in order to obtain ‘responsive’ expert opinion evidence.
In today’s case (Falbo v. Ryan) the Plaintiff was injured in a collision and sued for damages.  In the course of the lawsuit the Plaintiff attended several defence medical appointments, specifically with a physiatrist, a psychiatrist, a dental expert, and a rheumatologist.  The Plaintiff then served two functional capacity reports outlining vocational limitations.  The Defendant argued they needed a further evaluation to obtain a ‘responsive’ report.  In dismissing the application Master Harper provided the following reasons :

[10]        There are numerous cases that have dealt with these types of applications.  The plaintiff in fact produced a binder of 21 case authorities.  One of the cases that I find most persuasive in this matter is Timar v. Barson, 2015 BCSC 340.  In that case, Mr. Justice Smith said that IMEs for responsive reports should be rare.  I agree.

[11]        In my view, the defendants cannot reasonably claim to be surprised by the subject matter of the report, and further, it is my view that it is not necessary in order to provide a responsive report for the plaintiff to be subjected to a physical examination.  These types of orders are discretionary.  They ought to be rare.  There is, unfortunately in my view, what seems to be an acceleration of these types of applications.  They should be extremely rare, and in my view the defendants do not require a physical examination of the plaintiff in order to properly respond to Ms. Craig’s two functional capacity evaluations.

Late Defence Medical Exam May Be Ordered in Exceptional Circumstances

Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, addressing court orders for late defence medical exams.
In this week’s case (Jackson v. Yusishen) the Defendant brought an application for a ‘responsive’ functional capacity evaluation.  Mr. Justice Barrow dismissed the application finding that on the facts before him the evidentiary burden for a late exam were not met.  Despite this result the Court provided the following interesting comments addressing that a late defense medical exam may be justified in exceptional circumstances:
[15]         There are three rules engaged by this application. The Rules of Court distinguish between new or fresh expert reports and responsive reports. Rule 11‑6(3) provides that, unless the court otherwise orders, expert reports other than responsive reports must be served on all parties of record at least 84 days before the scheduled trial date.
[16]         Rule 11‑6(4) deals with responsive reports and provides that such reports must be served on every party of record at least 42 days before the trial date.
[17]         The third rule engaged by this application is Rule 7‑6, which provides that the court may order a person submit to an examination by a medical practitioner or another appropriately qualified person. An order under Rule 7‑6(1) is discretionary. While there are a host of factors that should be considered when exercising the discretion conferred by that rule, one of the factors might broadly be taken to be whether the examination sought will advance the litigation, in the sense of potentially yielding relevant evidence touching on a material issue.
[18]         In the context of a personal injury action, meeting that evidentiary threshold where the object of the examination is the eventual production of a fresh or new expert report will not usually be difficult. On the other hand, where the time limited for serving fresh or new expert reports has passed, and thus the only purpose of an independent medical examination is in furtherance of the production of a responsive expert report, the evidentiary burden will generally be more difficult to meet…
[32]         Although the evidentiary burden has not been met in this case, I acknowledge that, on occasion, there may be circumstances which might justify the ordering of an independent medical examination, otherwise than in support of the preparation of a responsive report. It may be that, in some cases, the court may anticipate or at least allow for the possibility that a fresh opinion would be exceptionally admissible, notwithstanding that the 84‑day deadline has passed. Although not framed that way in Luedecke, the issue may have arisen at trial after the production of the report that the master ordered. In this case, however, there is no basis to conclude that an independent medical examination is necessary to level the playing field.

Raising the Bar for "Resposive" Independent Medical Exams

While the BC Supreme Court can order a Plaintiff to undergo an independent medical exam to allow the opposing party to obtain a ‘responsive’ report, a clear evidentiary foundation must exist in order for such an application to succeed.  Unreported reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, demonstrating this.
In the recent case (Becker v. Zetzos) the Plaintiff was injured in a collision.  In support of his claim he served a report from a physiatrist.   As trial neared the Defendant sought an order requiring the Plaintiff to undergo an independent exam with an orthopedic surgeon for a ‘responsive’ report.    This application was brought after the expiry of the 84 day deadline for conventional expert reports to be served.
In support of the application the orthopedic surgeon provided an an affidavit stating as follows:
In order for me to assist the court and properly prepare a rebuttal to the expert report of Dr. Giantomaso I must physically examine the Plaintiff and ask him the usual questions that a doctor would ask in order to elicit any information upon which to ground my expert rebuttal report.  I could not give a proper rebuttal opinion report of the Plaintiff which assist the court and opines on the movement, functioning, diagnosis, prognosis, distribution of symptoms, recommendations, suitability for work, and etiology of the Plaintiff without physically examining the Plaintiff and where appropriate palpating the Plaintiff.
In finding this evidence falls short of the mark, Master McCallum provided the following reasons:
[17]  In this case I say the evidentiary threshold has not been crossed.  Dr. Dommisse’s letter is simply saying that he cannot give a proper rebuttal opinion report to assist the court without examining the plaintiff.  In support of that position he goes through what seems to me to be simply a description of the work he would do if he were preparing a report in the first instance.
[18]  He has Dr. Giantomaso’s report.  He doe snot say, as he could have, what there is about that report that would lead him to think that he himself needs to examine the plaintiff.  The defendant has not met the evidentiary threshold to support the request for a physical examination of the plaintiff prior to preparation of a rebuttal report.
To my knowledge this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.
 

BC Injury Claims and "Responsive" Expert Opinion Evidence

Currently the law relating to the disclosure of expert opinion evidence is governed by Rule 40A of the BC Supreme Court Rules.   (click here to read my previous posts about the upcoming changes to the Rules of Expert Opinion Evidence).
If a party wishes to introduce expert opinion evidence at trial Rule 40A requires that “a copy of the statement is furnished to every party of record at least 60 days before the statement is tendered in evidence.”
One noteworthy exception to this is the rule of “responsive” opinion  evidence.  If the defence in a personal injury trial obtains a report that does not offer a fresh opinion but rather is an opinion that is ‘truly responsive to evidence introduced by the opposing party”  the 60 day notice period does not apply.
Reasons for judgement were released today by the BC Supreme Court dealing with this area of law.  In today’s case (MacEachern v. Rennie) “the plaintiff suffered traumatic brain injury when her head struck the side of a large tractor-trailer as she was walking or riding a bicycle along the side of King George Highway” in 2005.  One of the Defendants in the Plainitiff’s injury claim sought to introduce the report of a toxicologist which concluded that “the plaintiff was cognitively impaired from the ingestion of drugs at the time of the accident, and that she had permanent brain damage from drug abuse prior to the accident.”
This report was served outside of the requirements of Rule 40A.  The defendant tried to rely on the ‘responsive‘ evidence exception to Rule 40-A and have the report introduced into evidence despite its late disclosure (the report in fact was exchanged after the Plaintiff concluded her portion of the trial).
In refusing to enter the report into evidence Mr. Justice Ehrcke gave the following consice and handy definition of the law of rebuttal opinion evidence in the BC Supreme Court:
The right to introduce opinion evidence without notice is limited to rebuttal evidence that is truly responsive to evidence introduced by the opposing party, and cannot be used as a masquerade for introducing a fresh opinion: Sterritt v. McLeod (2000), 74 B.C.L.R. (3d) 371 (C.A.); Stainer v. Plaza (2001), 87 B.C.L.R. (3d) 182 (C.A.). Where a defendant elicits opinions in cross-examination of a plaintiff’s witness that were not in that witness’s report, the defendant cannot use his own elicitation to justify calling a defence expert to give an opinion on the topic without notice.

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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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