Tag: Rule 11-6

BC Supreme Court Discusses Production of Neuropsychologist Raw Test Data

When a party serves an expert report in a BC Supreme Court lawsuit opposing parties are entitled to disclosure of any data compiled by the expert in relation to the report.  When it comes to neuropsycholgoists reports, the raw test data compiled by neuropsychologists is relevant and disclosable.   Sometimes it is difficult to obtain this data as neuropsycholgoists have ethical and contractual considerations limiting how and when such data is to be disclosed.  Often neuropsychologists only wish to disclose the data directly to another neuropsycholgist.
Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry  (Smith v. Rautenberg), addressing this and concluding that there is no reason why such data is exempt from disclosure under the BC Supreme Court Rules.   In ordering the data to be disclosed directly to the litigant Master McDiarmid provided the following reasons:
[8]             Appendix B to the report documents over 20 tests, particularizes the ability being assessed by some of the tests and gives a result under the heading “Classification” for each of the tests (except the last mood tests). Specific components of some of the tests are set out.
[9]             A description of the tests in Appendix B are what I would characterize as quite technical. They are the sorts of tests which seem to me would require considerable expertise to both administer and interpret. Clinical psychologists, and in particular clinical neuropsychologists, would probably have the expertise to know whether the administered tests did in fact assess the ability which they purport to assess, and would be able to interpret the data to determine whether or not the interpretation placed on the assessment results by Dr. Pirolli was the proper interpretation. It seems unlikely that the test results could be intelligibly interpreted by persons who did not possess significant expertise in psychology and/or neuropsychology, just from the description of the tests…
[34]         In making my decision, I agree with what was written by Southin J.A., namely that when an expert in one field in possession of documents says that someone from a different discipline is not competent to understand his work, that the court is to be slow to overrule his judgment. That is a very different thing from saying that the documentation could not be produced to counsel for the party seeking production. If that party choses to have the documents interpreted by someone not competent to understand them, lack of competence will be readily available to a trial judge and will work against the party who conducts litigation in that way.
[35]         I also respectfully agree that courts must not run rough shod over those who are not parties to the proceedings. That is why the Rules require delivery of notices of applications to non-parties from whom documents are sought.
[36]         The evidence before Master Horn in Davies was that there was an ethical restriction placed on the neuropsychologist to prevent disclosure. The actual evidence that was presented in that case is not before me.
[37]         I had evidence before me of the current Code of Conduct. So long as Dr. Pirolli complies with the Code of Conduct, and in particular that portion of the Code of Conduct set out in subparagraph 1.2, reproduced above in para. 28, her ethical requirements are met.
[38]         The other concerns raised by the plaintiff are dealt with by the litigation privilege which attaches to the documents.

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.
 

Is An Expert Report Admissible If Your Expert Dies Before Trial?

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with this issue.  In short the Court held that certain factual observations contained in the report were admissible as they met the ‘necessary and reliable‘ exceptions to the hearsay rule.  The opinion evidence, however, was excluded.
In today’s case (Andrews v. Mainster) the Plaintiff had cognitive limitations and these were tested by a neurupsychologiest one year following the collision.  The expert died before trial.  In admitting the factual portions of the report but excluding the opinion evidence Mr. Justice Pearlman provided the following reasons:
[25]         I return now to Dr. Kay’s report.  Dr. Kay’s report provides the only evidence of a comprehensive neuropsychological evaluation of the plaintiff’s cognitive functioning one year post accident.  The necessity requirement is met with respect to those portions of Dr. Kay’s report that deal with his testing and evaluation of the plaintiff’s level of cognitive functioning.  I also find that those parts of Dr. Kay’s report that record the history he took from Ms. Andrews, discuss the tests he administered and set out his opinions on the results of his testing of the plaintiff’s cognitive functioning meet the threshold of reliability required for their admission into evidence.  Dr. Kay was a neuropsychologist trained and experienced in the use of the standardized tests he administered to the plaintiff.  Those tests provide a largely objective measure of the plaintiff’s cognitive functioning.  These factors, combined with Dr. Kay’s certification of the duties he owed to the court as an expert provide sufficient circumstantial guarantees of the trustworthiness of this evidence to satisfy threshold reliability.
[26]         Different considerations apply respecting Dr. Kay’s opinion or diagnosis of post-traumatic stress disorder, his prognosis, and his opinion on the motor vehicle accident as a cause of the plaintiff’s emotional and psychological disorders.  Those opinions have a significant subjective component.  They are not predicated upon the objective results of his testing of the plaintiff’s cognitive capacity.  The nature, extent and sources of the plaintiff’s psychological difficulties both before and after the motor vehicle accident are all in issue in this litigation.  There is also a live issue about whether the plaintiff fully disclosed relevant information concerning her psychological condition and the various stressors that affected her from time to time to the counsellors, psychologists and psychiatrists who have treated or examined her.
[27]         Defence counsel requested production of Dr. Kay’s file, including his interview notes, in order to determine whether it might shed any additional light on the plaintiff’s complex psychological history.  The file has not been produced and apparently is not available.  Dr. Kay’s report also refers to a diary kept by the plaintiff following the motor vehicle accident, which has not been produced, and to the plaintiff having seen Ms. Tracy Good for counselling for family and relationship issues for 11 years.  Ms. Good informed counsel that she has shredded all of her records.  If true, that effectively precludes exploration of a potentially valuable source of information concerning the causes of the plaintiff’s emotional and psychological disorders before and after the motor vehicle accident. 
[28]         In light of the subjective nature of the evidence concerning the causes and nature of the plaintiff’s emotional and psychological disorders, and the gaps in the documentary record that I have discussed briefly, I am not satisfied that Dr. Kay’s professional training as a psychologist and the certifications contained in his report provide an adequate guarantee of the trustworthiness of his opinions on these matters to meet the threshold of reliability for their admission into evidence.  In the circumstances of this case, there is no adequate substitute for cross-examination of the expert.
[29]         Further, the test of necessity is not met for Dr. Kay’s diagnosis of and prognosis for the plaintiff’s emotional and psychological disorders.  Relevant direct evidence is available from another source.  The plaintiff has a comprehensive opinion from Dr. O’Shaughnessy on the nature and causes of the plaintiff’s disorders, their relationship to the motor vehicle accident and their treatment.
[30]         Accordingly, I conclude that those portions of Dr. Kay’s report beginning at page 20 under the heading “Psychological Explanations” and continuing with the prognosis, opinion and recommendations at pages 21 through 23 do not satisfy the tests of necessity and reliability and are therefore inadmissible.  The balance of Dr. Kay’s report, with those redactions, will be admitted into evidence.

Case Plan Conference Orders Can't Trump Privilege

Last year I highlighted a decision confirming that the Court’s powers under the new rules of court don’t allow orders to be made which will trump legitimate privilege claims.  Reasons for judgement were released earlier this month by the BC Supreme Court, Vancouver Registry, confirming this principle.
In the recent case (Blackwell v. Kwok) the Defendant sought an order at a Case Planning Conference requiring the Plaintiff to disclose the specialty of the expert witness(es) the Plaintiff intends to rely on.  The Court refused to make this order finding it would trump the privilege in the Plaintiff’s counsel’s solicitor’s brief.  In dismissing the request Mr. Justice Funt provided the following reasons:
[11]         Plaintiff’s counsel referred me to the Court’s decision in Nowe v. Bowerman, 2012 BCSC 1723.  In Nowe, the defendant proposed that each party be limited to one expert each and that the plaintiff advise the defendant of the area of expertise by November 17, 2012, approximately ten months before the scheduled trial.  The Court denied the application:
[10]  The area of expertise of an intended expert witness is a matter of trial strategy.  Trial strategy is a key component of a solicitor’s brief.  It may well evolve as plaintiff’s counsel builds a case and makes decisions based upon a myriad of factors and considerations.  Intentions may change as the process unfolds over time.
[11]  In my view, unless and until the intention to rely upon a particular expert in a particular field is declared by delivery of a report in accordance with the timelines established by the Rules, in the absence of a compelling reason an early incursion into this aspect of the solicitor’s brief will not be justified.
[12]  That being said, there may well be cases in which a departure from the usual timelines can be justified.  For example, in complex cases such as those involving brain injuries as a matter of fairness it may be necessary to provide defence counsel with a longer period than would be available under the usual regime in order to schedule appointments with certain kinds of experts. …
[12]         I note that in Nowe, the plaintiff argued that it was “not the kind of case in which a long period is required in advance of an appointment being made with a certain type of expert” (para. 7).  Although possibly a longer period may be justified in some cases, I am not satisfied that a “departure from the usual timelines can be justified” in the case at bar.
[13]         In my view, the defendants’ application should be rejected.  I see no prejudice if the normal rules for delivery of expert reports apply.  If the defendants choose to retain an expert to conduct an independent medical examination and prepare a report based on the plaintiff’s pleaded injuries, but no psychological injury is alleged at trial, an appropriate award of costs will afford the defendants the necessary relief.
[14]         Not surprisingly, I cannot state matters better than Chief Justice McEachern in Hodgkinson: “While I favour full disclosure in proper circumstances, it will be rare, if ever, that the need for disclosure will displace privilege”.
[15]         The Court declines to make the order sought.
 

Show Your Work! – Medical Opinion Rejected For Failing to Outline Supporting Reasons


Remember grade school math problems?  You needed to not just give your teacher the answer but also show your work.  The conclusion without the supporting paper-trail wouldn’t pass muster in Grade 5.   The same is true with medical opinions in BC injury trials.  It is not enough for a doctor to relate injuries to a collision, the physician must explain the factual basis underlying their opinion.  Failure to do so can result in a Court placing little weight on a physicians opinions.  This was demonstrated in reasons for judgement released recently by the BC Supreme Court.
In the recent case (Perry v. Vargas) the Plaintiff was involved in a 2006 collision.  She sued for damages claiming long-standing injuries with disabling consequences.  The Court accepted the Plaintiff was indeed injured but disagreed with the Plaintiff’s assertion of long-standing disability being related to the crash.
In the course of the trial the Plaintiff introduced evidence from her treating physician supporting her position.  The Court struggled in giving “much weight” to the physician’s opinion, however, noting that the physician provided “no insight into the reasons for (her) conclusion“.  In addressing the lack of reasoning underlying the opinion Mr. Justice Savage provided the following criticism:
[56]         I find it difficult to give much weight to Dr. Tesiorowski’s opinion with respect to causation. Most of the report appears to simply reiterate what she has been told by others. She was not in fact treating Ms. Perry for the complaints until the passing of Dr. Condon. She only did one physical examination. In the report she does not address any of the intervening events.
[57]         In my opinion there is another more fundamental problem with Dr. Tesiorowski’s report. There is no reasoning linking the current complaints with the December 4, 2006 Accident. That is, she states a conclusion as quoted above but provides no insight into the reasons for that conclusion. I examine this matter in greater detail below…
[122]     The report of Dr. Tesiorowski has another important failing. It refers to a history gained from Ms. Perry and others and then simply states a conclusion. To be useful an opinion must be more than a conclusory assertion on causation. In Montreal Light, Heat & Power Co. v. Quebec (Attorney-General) (1908), 41 S.C.R. 116 at 132, Idington J. said “I refuse to accept unless absolutely necessary the mere ipse dixit of any expert when presented for my acceptance merely as an act of faith, and without the aid of such reasons as his reasoning power, or means of, and result of the use of means of, observations may have developed”.
[123]     The same kind of concern is noted by Binnie J., speaking for the court in R. v. J.-L.J., 2000 SCC 51 at para. 56, [2000] 2 S.C.R. 600. The opinion must assist the trier of fact to form an independent conclusion by “an act of informed judgment, not an act of faith”:
56          In Mohan , Sopinka J. held that the expert evidence in question had to be more than merely helpful. He required that the expert opinion be necessary “in the sense that it provide information, which is likely to be outside the experience and knowledge of a judge or jury, … the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature” (p. 23). In Béland , supra , McIntyre J., speaking about the inadmissibility of a polygraph test, cited at p. 415 Davie v. Edinburgh Magistrates, [1953] S.C. 34 (Scotland Ct. Sess.) , at p. 40, on the role of expert witnesses where Lord Cooper said:
Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. [Emphasis added.]
The purpose of expert evidence is thus to assist the trier of fact by providing special knowledge that the ordinary person would not know. Its purpose is not to substitute the expert for the trier of fact. What is asked of the trier of fact is an act of informed judgment, not an act of faith.
[124]     As there is no reasoning linking the facts referenced in the medical report with the conclusory assertion on causation, I am unable to form an independent conclusion from this opinion. To accept the opinion would simply be a leap of faith, applying the logical fallacy of ipse dixit, in this context, “because she said it”.
[125]     For all of these reasons Dr. Tesiorowski’s opinion is of little assistance to the court.

Chiropractor Qualified to Opine on Diagnosis and Prognosis in BC Injury Trial


In my continued efforts to highlight unreported injury law decisions of the BC Supreme Court, reasons for judgement were recently provided to me addressing the qualifications of a chiropractor to opine on injury causation and prognosis.  This unreported case is a little dated (from 2008) however the discussion is of value and I am happy to publish the decision here.
In the recently provided case (Sloane v. Hill) the Plaintiff was injured in a collision.  She sued for damages and proceeded to jury trial.  In the course of the trial the Defendant objected to the qualifications of the Plaintiff’s chiropractor arguing that a “chiropractor has no basis in training or expertise” to offer opinions regarding diagnosis and prognosis for traumatic injuries.  Mr. Justice Grist disagreed and allowed the chiropractor to be qualified as an expert.  In doing so the Court provided the following reasons:
[5]  Chiropractors are licenced to provide this form of care, and there is no indication that chiropractors are generally incompetent in what they do or, in particular  in the process of forming diagnosis and prognosis.  If nothing else here, the forecast for the future ties to what the chiropractor expects to be the future cost of performing her services…
[6]  The chiropractor will testify and will be subject to cross-examination…
[8]  The admissibility of an expert’s report is dealt with in R v. Marquard [1993] SCJ No. 119 (SCC).  At issue is the witness’s ability, through experience and training, to aid the triers of fact in opinion based on special training or experience; opinion the triers are not likely to be able to form on their own.
[9]  Here, I think the chiropractor does offer something towards this end.  Further, through cross-examination and with the medical evidence to be called, I think there will be ample opportunity for counsel to put the opinion in proper perspective, and there is little likelihood of prejudice.  I think the public is well-acquainted with different healthcare providers, what they can offer and their limitations.
[10]  On balance, I am of the view these opinions can be taken in evidence.
As always I am happy to provide a copy of the full transcript of this unreported decision to anyone who contacts me and requests one.

BC's New Rules of Court Don't Trump Solicitor's Brief Privilege

Earlier this year I highlighted two  judgements (here and here) discussing that the New Rules of Court don’t allow the Court to override solicitor’s privilege.  Further reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, confirming this principle.
In the recent case (Nowe v. Bowerman) the Plaintiff was injured in a 2008 motor vehicle collision and sued for damages.  The Defendant set down a Case Planning Conference asking for an order that “Plaintiff’s counsel advise the defence of the areas of expertise of his proposed experts“.
Madam Justice Dickson dismissed this request finding it would infringe on solicitor’s brief privilege.  In doing so the Court provided the following reasons:
[10]  The area of expertise of an intended expert witness is a matter of trial strategy.  Trial strategy is a key component of a solicitor’s brief.  It may well evolve as plaintiff’s counsel builds a case and makes decisions based upon a myriad of factors and considerations.  Intentions may change as the process unfolds over time.
[11]  In my view, unless and until the intention to rely upon a particular expert in a particular field is declared by delivery of a report in accordance with the timelines established by the Rules, in the absence of a compelling reason an early incursion into this aspect of the solicitor’s brief will not be justified.
[12]  That being said, there may well be cases in which a departure from the usual timelines can be justified.  For example, in complex cases such as those involving brain injuries as a matter of fairness it may be necessary to provide defence counsel with a longer period than would be available under the usual regime in order to schedule appointments with certain kinds of experts.  In this case, however, I am unable to identify such a compelling reason.  In these circumstances, I decline to make the order sought.
To my knowledge these reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

Permitting Late Expert Evidence in the Interests of Justice a Remedy to be Used "Sparingly"

Rule 11-7(6) discusses the circumstances when the BC Supreme Court can allow expert evidence to be introduced at trial which does not otherwise comply with the Rules of Court.  Reasons for judgement were released last week addressing this section.  In short the Court held that allowing non-compliant expert evidence to be introduced in the interests of justice is a discretion that “must be exercised sparingly, with appropriate caution, and in a disciplined way“.
In the recent case (Perry v. Vargas) the Plaintiff was injured in a collision.  On the last business day before trial the Plaintiff served a ‘supplementary report’ from her expert which bolstered the experts previous views, clarified statements made in the previous report, and lastly critiqued the defence medico-legal report.s
The Plaintiff argued the late report ought to be admitted as a ‘supplementary report’ pursuant to Rule 11-6(6) or in the alternative the Court should exercise its discretion to allow the non-compliant report in through Rule 11-7(6).  Mr. Justice Savage rejected both of these arguments and in doing so provided the following reasons:
[9]             Rules 11-6(6) (a party’s own expert) and 11-6(5) (a jointly appointed expert) are cognate provisions designed to deal with circumstances where an expert’s opinion “changes in a material way”. Rule 11-6(6) contains an election. In the case of one’s own expert, a party must determine whether it still seeks to rely on the expert report notwithstanding the material change. If it does so, the party must promptly serve a supplementary report.
[10]         Rule 11-6(6) was not intended to allow experts to add either fresh opinions or bolster reasons upon reviewing for the first time or further reviewing material under the guise of there being a material change in their opinion. To provide otherwise would surely defeat the purpose of the notice provisions contained in Rules 11-6(3) and 11-6(4) and the requirement of R. 11-7(1)…
[18]         Rule 11-7(6)(b) focuses on whether there is prejudice to the party against whom the evidence is sought to be tendered. Of course there are cases where reports are delivered a few days late where there is no prejudice. This is not such a case. Delivering a new expert report without any notice well outside of business hours on a Friday evening before a trial commencing Monday morning places the opposing party in obvious difficulties. In my view there is some prejudice to the defendants given the untimely delivery of the Late Report.
[19]         More generally, delivering expert reports on the eve of trial is antithetical to the purpose of the Rules regarding expert reports, which seek to ensure the parties have reasonable notice of expert opinions. Compliance with the Rules allows considered review of the expert opinions, the obtaining of important advice, and possible response reports. Under the former Rules, in Watchel v. Toby, [1997] B.C.J. No. 3150, 33 M.V.R. (3d) 115, Kirkpatrick J., as she then was, excluded in its entirety a late report delivered 12 days before trial where there was insufficient time to obtain any opinion evidence to answer the report.
[20]         Rule 11-7(6)(c) allows the court to admit expert evidence in the interests of justice. It is a separate provision so it can apply in circumstances where the relaxing provisions of Rules 11-7(6)(a) and (b) are not met. Effectively, it provides that the court retains a residual discretion to dispense with the other requirements of R. 11.
[21]         Context here is all important. This is the second scheduled trial. There was a trial management conference with comprehensive trial briefs prepared by both counsel.
[22]         In my view the discretion provided for in R.11-7(6)(c) must be exercised sparingly, with appropriate caution, and in a disciplined way given the express requirements contained in Rules 11-6 and 11-7. That is, the “interests of justice” are not a reason to simply excuse or ignore the requirements of the other Rules. There must be some compelling analysis why the interests of justice require in a particular case the extraordinary step of abrogating the other requirements of the Supreme Court Civil Rules. None was provided.
[23]         In the circumstances, the Late Report is not admissible.

Rule 11-6(8) Interpreted to Limit Scope of Expert Witness File Disclosure


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the scope of expert witness file disclosure requirements under Rule 11-6(8).  In short the court held documents created after the preparation of the expert opinion need not be disclosed.
In today’s case (First Majestic Silver Corp. v. Davila) the Plaintiff made a mid-trial application requesting “notes made by the Defendants’ experts during the course of the trial when the Plaintiffs experts were testifying“.  The Defendant opposed arguing the new rules of court did not require production of such records.   Mr. Justice Myers agreed and provided the following comments:

[8]      While the plaintiffs referred to Rule 11-6(8) at the outset of their argument, the main thrust of their submission was based on the common law prior to the new rules.  I will elaborate that after I summarise the defendants’ position.

[9]      The defendants argued that the Rule replaced the common law.  They submitted that the rule limits production to what was clearly stated in the rule, namely the “contents of the expert’s file relating to the preparation of the opinion” [emphasis added].  Since their experts had already delivered their reports and therefore formulated their opinions (beyond which they were not entitled to go when giving evidence) the notes made during trial could not relate to that.

[10]    In reply, the plaintiffs argued that the only thing the rule does is to push back the time at which the expert’s file must be disclosed.  Under the prior case law, this was when (and only if) the expert takes the stand, and then the whole file need be disclosed.  They argue that the rule requires the same disclosure to be made, but in advance.  Relying on Lax Kw’alaams, they submit that there is no distinction between the different capacities of an expert when generating the file materials.  Rather, the whole file relates to an expert’s credibility once he or she takes the stand and must be produced.

[11]    On the plain wording of the rule, I do not agree that it only modified the timing for the disclosure.  The words “relating to the preparation of the opinion” must be given some meaning.  In effect the rule settles the gray area dealt with in the decisions cited above.  I therefore decline to order the notes made during the course of the trial.

More on Responsive Opinion Evidence Admissibility

Reasons for judgement were published recently by the BC Supreme Court, Vancouver Registry, addressing responsive expert reports and the discretion of the Court to adjourn a trial to permit late expert evidence to be introduced.
In the recent case (Lennox v. Karim) the Plaintiff was injured in a 2003 collision.   87 days prior to trial the Plaintiff served a medico-legal report diagnosing the Plaintiff with a meniscal tear.  The Defendant obtained a report addressing this injury and served it on the Plaintiff.  This report was served in less than 84 days before trail.  The Plaintiff objected arguing this report was late and that it was not truly responsive.  Mr. Justice Armstrong disagreed and admitted the report finding that it was responsive, and if not, the trial should be adjourned to allow admission of the report to address the relatively late disclosure of the meniscal tear.  The Court provided the following reasons:

[38] In this case, Mr. Lennox failed to alert the defendant to the central issue of a torn meniscus. His pleadings indicated an injury of both knees without any reference in specific to the torn meniscus. This is significant in this case, because the plaintiff was under the obligation to obtain a court order to permit Dr. Stewart to testify and if that order had been applied for, the defendant would have been put on notice at an earlier time as to the issue which became central to this case.

[39] In my view the Leith report, in the words of Smith J., is not a freestanding medical opinion that ought to have been served under Rule 11-6(3). It is in its entirety a responsive opinion directed solely to one opinion of Dr. Stewart relating to the plaintiff’s medical condition, that being the torn meniscus…

[42] If I am wrong in this decision, it would have also been my further opinion that in the circumstances of this case the defendant would have otherwise been entitled to an adjournment of the trial to secure the medical report of Dr. Leith if it was not otherwise admissible under 11-6(4). It seems to me that 11-1(2) is purposely directed at requiring the plaintiff and defendant to avoid the last minute introduction of medical evidence in cases which may have proceeded for many years on a different track or a different theory. I note that neither of the experts described in the CPC report have been or are going to be called as witnesses in this case, but I am not required to deal with that issue.

[43] It seems to me that Dr. Leith’s report can simply be admitted and I can ignore those provisions which in my view are not appropriate.

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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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