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Tag: Rule 11

More on Responding Medical Reports and Physical Exams: Reconciling the Cases to Date

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized.


As previously discussed, a debate has arisen about if and when a Defendant is allowed to compel a Plaintiff to attend an ‘independent‘ medical exam in order to obtain a ‘responding‘ report under the BC Supreme Court Rules.  Very useful reasons were released this week by the BC Supreme Court, Victoria Registry, addressing and reconciling the various authorities considering this issue to date.
In today’s case (Labrecque v. Tyler) the Plaintiff was involved in three separate collisions.  He sued for damages and all three claims were set for trial at the same time.   In the course of the lawsuit the Plaintiff obtained  a report from his GP and from a physiatrist.  The Plaintiff intended to rely on the physiatrist’s report at trial.  The Defendants intended to rely on the GP’s report at trial.  The Plaintiff never attended a defence medical exam in the course of the lawsuit and as the trial neared one of the Defendant’s brought an application to compel the Plaintiff to attend an examination in order to get a ‘responding’ report.
In support of the application the proposed examiner swore an affidavit explaining that he needs to ‘physically examine the plaintiff and ask him the questions a doctor would ask in order to elicit information upon which to ground my opinions‘.    The application was dismissed finding that this falls short of what is required in order for a physical exam to be ordered as part of a responding report.  In dismissing the application Master Bouck provided the following useful reasons reconciling the authorities addressing this issue to date:

[28] In Wright v. Bauer, the court recognized that Rule 11-6(4) “filled a lacuna” in the Rules governing civil procedure in this province: para. 12. Parties are now specifically governed by a Rule regarding delivery of responsive written expert evidence. Prior to this Rule’s enactment, the delivery of such evidence was governed by common law principles.

[29] In that case, the application for an independent medical examination was brought nearly one month before the defence would have been required to serve a responsive report.

[30] In dismissing the defendant’s application, the court found that the applicant had not met the necessary evidentiary threshold justifying an order under Rule 7-6: para. 21.

[31] The same result is found in Boudreau v. Logan and Crane v. Lee, supra.

[32] In contrast, the court in Luedecke v. Hillman was satisfied that an order should go requiring the plaintiff’s attendance at an examination…

[35] In my view, the principles enunciated in Luedecke and Wright are consistent and entirely reconcilable. The difference between the outcomes in these two cases lies in the facts.

[36] In both cases, the court concerned itself with the evidence presented to support the necessity of an examination as well as the question of prejudice.

[37] Here, the evidence from Dr. Piper as to the necessity for an examination is rather general in nature. Dr. Piper refers to the reports of both Dr. Grimwood and Dr. MacKean when in fact the responsive opinion would concern only the latter’s report. Unlike the evidence from the proposed examiner in Luedecke, Dr. Piper does not specifically identify the “medical evidence” (other than the reports themselves) that can only be addressed if a physical examination of the plaintiff occurs. Rather, Dr. Piper’s evidence suggests that an examination is necessary to respond generally to the subject matter of the plaintiff’s case and, as such, is no justification for the order sought: Luedecke at para. 52.

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

Written by admin on . Posted in BCSC Civil Rule 11, ICBC Liability (fault) Cases. 59 Comments on Expert Reports and the New Rules of Court: The "Factual Assumptions" Requirement


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

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

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

More on The New Rules of Court, IME's and "Responding" Medical Reports

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized.


Precedents addressing whether an independent medical exam can be ordered to permit a Defendant to obtain a ‘responding‘ report are still being worked out by the BC Supreme Court.  (You can click here to read my archived posts addressing this topic) Reasons for judgement were released today by the BCSC, Victoria Registry, further addressing this issue.
In today’s case (Hamilton v. Demandre) the Plaintiff was involved in 2 separate motor vehicle collisions.  She claimed she was injured in the first and that those injuries were aggravated in the second crash.  Both lawsuits were set for trial at the same time.   One of the alleged injuries was “visual vestibular mismatch with associated dizziness, motion sickness, balance problems and double vision“.
The Plaintiff submitted to medical exams with a neurologist and an orthopaedic surgeon at the request of the Defendant in the first crash.  The Plaintiff also attended an examination with a psychiatrist at the request of the Defendant in the second crash.
In support of her claim, the Plaintiff served reports from various experts including an ENT specialist.    These reports were served in compliance with the time lines set out in the Rules of Court.  The Defendant in the second crash then asked that the Plaintiff attend a further exam with an ENT of their choosing.  The examination was to take place less than 84 days before trial.
The Defendant argued that this exam was necessary in order to obtain a ‘responding‘ report.  The Plaintiff opposed arguing a further exam was not necessary.  Master Bouck agreed with the Plaintiff and dismissed the application.  In doing so the Court provided the following useful reasons:

[33] In a nutshell, the defendant submits that an ENT examination is required to rebut the opinion that the plaintiff’s ocular vestibular problems have worsened as a result of the second accident.

[34] Dr. Longridge’s report predates the second accident; as such, it is not of assistance to the defendant’s argument. If anyone were to rely on this report to obtain a rebuttal examination, it would be the defendants in the First Action.

[35] In any event, the complaints of ocular vestibular problems are of longstanding. This is not a case of a new diagnosis or even a suggestion that a referral to such an ENT specialist is medically required. Dr. Ballard merely opines that a referral to such a specialist is a possibility if the plaintiff’s symptoms continue. Moreover, Dr. Moll, whose opinion was clearly available to the defendant for some time, discusses these symptoms in his report of January 21, 2009.

[36] As submitted by the plaintiff, the defendant chose to pursue a psychiatric, rather than ENT opinion, knowing that the ocular vestibular complaints formed a significant part of the plaintiff’s claim.

[37] As for the other opinions offered, the experts are in agreement that the plaintiff’s condition has worsened, but that treatment may yet alleviate or reduce those symptoms.

[38] The defence clearly has a theory:  the plaintiff is malingering and/or suffers a somatoform disorder. To have the plaintiff examined by an ENT specialist for an assessment that will either be diagnostic in nature and thus not true rebuttal; or merely to prove a negative, that is to confirm that there is no physiological cause for the balance and visual disturbances, would be inconsistent not only with the authorities cited to me, but also with the purposes of Rule 7?6 and 11?6 (4).

[39] On the material before me, I conclude that any report forthcoming from Dr. Bell would be fresh opinion evidence masquerading as answer to the plaintiff’s reports.

[40] In short, the defendant has failed to meet the necessary evidentiary threshold which might support an order for the examinations requested. The application is thus dismissed with costs in the cause.


Caselaw Update: Independent Medical Exams and Responding Reports

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized. 48 Comments on Caselaw Update: Independent Medical Exams and Responding Reports


As previously discussed, Rule 11-6(3) of the new BC Supreme Court Civil Rules requires expert reports to be served 84 days prior to trial.  Rule 11-6(4) requires “responding” reports to be served at least 42 days prior to trial.  The issue of whether a Defendant is able to force a plaintiff to attend an “independent medical exam” for the purpose of obtaining a responding report is currently being worked out by the BC Supreme Court.
Two further cases have been brought to my attention addressing this topic and with these the bulk of the judicial authorities to date demonstrate that it may be very difficult for a Defendant to force a late ‘independent‘ examination to obtain a responding report.
Both of the recent cases (Crane v. Lee and Boudreau v. Logan) involve ICBC injury claims.  In both the Plaintiff served expert reports discussing the extent of their accident related injuries.  The Defendants applied to compel the Plaintiff to attend an independent exam inside the 84 day deadline in order to obtain responding reports.  Master Caldwell presided over both applications and dismissed them both.  In doing so the Court relied on Mr. Justice Savage’s reasoning in Wright v. Brauer and ruled that that precedent was “on all fours” with the present applications.  Master Caldwell repeated the following reasons from Mr. Justice Savage:

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

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

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

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

These cases, in total, seem to stand for the proposition that a Defendant needs to have sworn evidence from the proposed medical examiner explaining why physical examination is required in order to provide a responding report (which is what happened in Luedecke v. Hillman).  Absent this, late independent medical exam applications are being dismissed by the BC Supreme Court.

As of today’s date the Crane and Boudreau decisions are unpublished.  As always I’m happy to provide a copy of these cases to anyone who could benefit from them.  You can request a copy by filling out the form on this link.

Expert Witness Criticized by BC Supreme Court for "Advocacy"

Written by admin on . Posted in BCSC Civil Rule 11, ICBC Fibromyalgia Cases, independent medical exams, Uncategorized.


Further to my previous posts on this topic, expert witnesses have a duty to be objective when giving their evidence and opinions in a BC Supreme Court trial.  Rule 11-2 specifically sets out that “In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party.”
In addition to the above, the BC College of Physicians and Surgeons (the governing body for BC doctors) has provided the following feedback to its members:  “ 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.”
If experts fail to give objective evidence their opinions can be excluded from trial and they open themselves to criticism from the trial judge.  Reasons for judgement were released today by the BC Supreme Court demonstrating this.
In today’s case (Warkentin v. Riggs) the Plaintiff was involved in a 2005 motor vehicle collision.  The Defendant admitted fault for the crash.  The Plaintiff sustained various injuries including an alleged post traumatic Fibromyalgia Syndrome.  In support of her case the Plaintiff filed several medical reports.  The Defendant objected to one of these being introduced on the basis that the expert ignored his duty to the Court and presented his evidence not as a neutral expert but rather as an ‘advocate‘.  Madam Justice Gropper agreed and excluded the expert’s evidence.  In doing so the Court provided the following harsh criticism:
[58] Dr. Hunt’s report adopts a particular format. He uses bold font to highlight words and phrases which benefit the plaintiff’s claim and support his diagnosis. This is apparent in his review of Ms. Warkentin’s history and medical reports. That which is contrary to the plaintiff’s claim or does not support his diagnosis is either omitted or presented in non-bolded font. This emphasis in support of the plaintiff’s claim and the exclusion of contrary matters is advocacy…

[81]        I find that Dr. Hunt is not a neutral and impartial expert providing assistance to the court, but rather an advocate on behalf of the plaintiff. The report is argument, not opinion. He did not provide a balanced discussion of fibromyalgia and its possible application to the plaintiff’s case. His discussion of the medical principles and their application to the plaintiff’s case is biased, argumentative and contrary to the requirements for the admissibility of an expert report.

[82]        Dr. Hunt’s own description of his role as an “Expert Medical Legal Consultant providing opinions on behalf of patients with chronic pain who are seeking legal remedies with respect to their condition” indicates that he does not consider his role as an expert to be that of an objective advisor to the court.

[83]        Dr. Hunt’s perceived role is amply demonstrated in his report. The format he uses is designed to emphasize matters which support the plaintiff’s claim and his diagnosis.

[84]        Dr. Hunt presents the medical literature in a manner that suggests that there is consensus about the causal connection between motor vehicle accidents and the onset of fibromyalgia. He attempted to mislead the court regarding the medical literature upon which he relies by referring only to portions which support his diagnosis and prognosis and omitting portions which do not. He does not refer to the cautions and qualifications in the medical literature. He is not current with the medical literature, notably the 2006 prospective longitudinal study by Tischler, which was conducted specifically in order to test the conclusions of the Buskila study.

[85]        Dr. Hunt’s testimony, particularly in cross-examination, supports my conclusions about his report; he acted as the plaintiff’s advocate rather than as an independent expert.

[86]        Dr. Hunt’s report of March 27, 2009 is likely to distort the fact-finding function of the trier of fact, and therefore its prejudicial effect far outweighs its probative value. I find that it is inadmissible. Because the rebuttal report is a reiteration, it is also inadmissible. I specifically reject Dr. Hunt’s diagnoses as expressed in the report and his medical opinion that they were caused by the accident. I reject Dr. Hunt’s diagnosis and prognosis of fibromyalgia and his opinions about the plaintiff’s functional limitations associated with fibromyalgia.

Ultimately the Court accepted that the Plaintiff did suffer from fibromyalgia but that this was not related to the motor vehicle collision.  Madam Justice Gropper found that the Plaintiff did sustain soft tissue injuries to her neck and shoulder along with headaches as  a result of the crash.  $50,000 was awarded for the Plaintiff’s non-pecuniary damages.

In addition to the discussion of ‘advocacy‘ this decision is worth reviewing in full for the Court’s discussion of the relationship between fibromyalgia and trauma.

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

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized. 51 Comments on The Debate Goes On… Independent Medical Exams and "Responsive" Expert Evidence


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

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

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

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

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

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

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

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

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

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

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

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

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

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized. 122 Comments on The New BC Supreme Court Rules and "Responsive" Expert Reports


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Who's the Expert? The Rule Against "Corporate Reports"

Written by admin on . Posted in Civil Procedure, Uncategorized. 71 Comments on Who's the Expert? The Rule Against "Corporate Reports"


When a party introduces an expert report at trial in the BC Supreme Court one of the requirements is that the report sets out “the name of the person primarily responsible for the content of the statement“.  If a party fails to do so they risk having the report excluded from evidence.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Jones v. Ma) the Plaintiff was involved in a motor vehicle accident.  She sued for damages.  Fault was at issue and in support of their case the Defendants hired an engineering firm who produced an accident reconstruction report.  The report was signed by a Forensic Engineer.
The Plaintiff objected to the admission of the report arguing that it was not the report of the expert who signed it, rather it was “a corporate report which embodies the observations and opinions of several individuals, without clearly distinguishing who made the various observations on which the opinions are based and who engaged in the process of forming the opinions that are expressed in the report.”
The Engineer was cross examined and it become evident that “the majority of the work on the report was not done by (the engineer that signed it), but rather by other persons in the firm he works for”.  The Court went on to exclude the report from evidence.  Mr. Justice Ehrcke provided the following useful summary and application of the law:

[11]         This is not simply a matter of form. The purpose of the rule is to ensure fairness to both parties by providing the party on whom the report is served with adequate notice to enable them to effectively cross-examine the expert and to properly instruct their own expert if they choose to retain one.

[12]         The relevant case law was reviewed by Burnyeat J. in Dhaliwal v. Bassi, 2007 BCSC 548, 73 B.C.L.R. (4th) 170. In that case, the Court was presented with an expert report of a Dr. Passey who, in forming his opinions, relied on psychological questionnaires administered by a Dr. Ross. Mr. Justice Burnyeat wrote…:

[4]        The purposes of Rule 40A are clear:  (a) neither side should be taken by surprise by expert evidence (Sterritt v. McLeod (2000), 74 B.C.L.R. (3d) 371 (B.C.C.A.) at para. 33) and neither side should be ambushed or surprised at trial; (b) to ensure fairness to the parties and to promote the orderly progression of the trial (C.A. v. Critchley(1996), 4 C.P.C. (4th) 269 (B.C.S.C.) at para. 15). The burden on Mr. Bassi to show that I should exercise my discretion to allow the report to be introduced has been described as a:  “… relatively heavy burden ….”:  McKay v. Passmore, [2005] B.C.J. (Q.L.) No. 1232 (B.C.S.C.), at para. 26. The question which arises is whether there is “… substantial and irremediable prejudice ….” so as to justify the exclusion of the report on the basis that the statement does not comply with Rule 40A(5)(c) of the Rules of Court:  C.A. v. Critchley,supra, at para. 12…

In my view, a document is not a written statement setting out the opinion of an expert unless it appears clearly from the face of that document that the opinions in it are those of the individual expert who prepared and signed the statement. Our rules make no provision for the entry in evidence of joint or corporate opinions. The opinion must be that of an individual expert and it must fall, of course, within the scope of her own expertise. The opinion cannot simply be a reporting of the opinions of others. The statement, to be admissible, must show clearly that this is the case.

I find some support for this view in the decision of my brother Judge Macdonald in Emil Anderson Construction Co. Ltd. … As that case points out, there is a real possibility of procedural prejudice to cross-examining counsel if he or she cannot tell from the report which of the opinions are truly those held by the witness giving evidence and which are simply opinions of other team members reported to her and asserted by her in the written report. (at paras. 11-12)

…

[10]      Unless the authors of all parts of an opinion are known, unless the qualifications of each person contributing to the opinion are known, and unless the facts upon which each of the persons contributing to an opinion are set out, the cross-examination of an expert witness regarding the opinion that had been provided would be impossible.

[13]         In my view, the report tendered by the defendant in the present case does not comply with the requirements of Rule 40A(5), and it would cause irreparable prejudice to the plaintiff if the report were admitted.

[14]         The report is excluded from evidence.

I should point out that this case was decided relying on the current BC Supreme Court Rule 40A(5)(c).  As readers of this blog know the BC Supreme Court Rules are being overhauled on July 1, 2010 and some of the biggest changes relate to the rule concerning expert opinion evidence.

Rule 40A(5)(c) reads that “The statement shall set out or be accompanied by a supplementary statement setting out…the name of the person primarily responsible for the content of the statement.”

The new rule dealing with the content of expert reports is Rule 11-6 which states

“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;…”
While the language has changed somewhat the underlying purpose of the requirement appears the same and that is to not prejudice the opposing party’s ability to cross examine the opinion.  It seems this case will retain its value as a precedent under the New BC Supreme Court Rules but time will tell.

Late Applications for Defence Medical Exams in ICBC Injury Claims

Written by admin on . Posted in independent medical exams, Uncategorized.


Reasons for judgement were released this week by the BC Supreme Court considering the issue of timing of applications for compelled medical exams in the context of an ICBC Injury Claim.
Under the current BC Supreme Court Rules expert evidence that is not ‘responsive‘ is required to be served on opposing parties 60 days before it is tendered into evidence.  This requirement is set out in Rule 40A.  (As of July 1, 2010 a new set of BC Supreme Court Rules will come into force and Rule 11 will govern the admissibility of reports which makes some changes to timelines for exchange of expert evidence).
When a Defendant comes to court asking for a compelled exam BC Courts have considered the issue of timing and if the application is inside the timelines for service of a report the Defendant may have an uphill battle.  Reasons for judgement were released today demonstrating this.
In today’s case (Moore v. Hind) the Plaintiff was injured in 2 motor vehicle collisions.  Both trials were set to be heard together.  ICBC brought an application to compel the Plaintiff to be assessed by Dr. Ray Baker, a doctor who specializes in so-called ‘addiction medicine‘.  This application was brought late in the litigation process.  ICBC argued that the medical evidence served by the Plaintiff’s lawyer gave a “clear and emphatic indication that the plaintiff may suffer a drug addiction problem” and as a result the need for the late application.
The Plaintiff disagreed arguing that ICBC could have pursued this line of inquiry earlier in the process.  Master Keighley agreed with the Plaintiff and dismissed the motion.  In doing so the Court placed weight on the late timing of this application and this proved fatal to ICBC’s argument.  Specifically the Court stated as follows:

[10] This application raises certain practical difficulties.  One is the question of whether a further examination and the likely preparation of a report at this time will jeopardize the existing trial date.  There is certainly very little time left now between the date of this application and the trial.  It is unlikely that the plaintiff would have sufficient opportunity to in any way rebut the findings in a report prepared by Dr. Baker.  It seems to me there is a substantial likelihood that should the order sought be granted, an application may be made to adjourn the trial.

[11] It also seems to me that this application is unnecessarily brought at a late date.  There was, to my mind, a significant indication of overuse or misuse of prescription drugs as early as a year ago, and arrangements might then have been made in a more orderly fashion to have an examination by Dr. Baker or another, with respect to these issues.

[12] Having read portions of Dr. Smith’s report, it seems to me, however, that the third parties may well be afforded an opportunity to yet achieve a level playing field by having their own expert, Dr. Smith, consider the reports, the clinical records and other information relating to the claim with regard to assessing the issue of the plaintiff’s prescription drug use and its impact potentially upon her claim.

[13] In this regard it seems to me that the prejudice to be suffered by the third party in not having an opportunity to have a further assessment is minimized, whereas the potential prejudice to the plaintiff is substantial.  She is depicted in the medical reports as being a highly tense, anxious individual, and it would seem, and indeed she suggests that she will be extremely prejudiced if this claim is not resolved at the earliest possible date.  There is also an issue of inconvenience which is of a relatively minor nature, in that she has another medical examination scheduled for the morning of the proposed examination and would be obliged to cancel that if ordered by the court to attend for an appointment with Dr. Baker.  She also then had made plans to visit with her mother in the Christmas holidays, beginning on the night of December 22nd.  Those issues of inconvenience are of a relatively minor nature and would not be conclusive in themselves.

[14] I am satisfied that the application should be dismissed.  It is simply brought at too late a date and it is likely that it will result in an adjournment of this trial, which the material before me indicates, if adjourned, would likely not be rescheduled until perhaps June of 2011.

Personal Injury Claims and Radiologists Opinion Evidence

Written by admin on . Posted in Civil Procedure, Uncategorized. 59 Comments on Personal Injury Claims and Radiologists Opinion Evidence


(Please note the topic discussed in this post should be reviewed keeping a subsequent October 2010 BC  Court of Appeal in mind)
X-rays, CT Scans, Bone Scan and MRI’s are routinely used in the diagnosis of traumatic injury and accordingly the findings of these diagnostic tests are frequently used at trial by personal injury lawyers.
Strictly speaking, however, the findings of radiologists interpreting the raw data generated by these tests are opinions and opinion evidence needs to comply with the Rules of Court to be admissible.  If an MRI shows a traumatic injury it is not good enough to show up at trial with only the radiologists consultation report in hand.  If you want the Court to rely on the radiologists findings of injury the reports need to be served in compliance with Rule  40A (Rule 40A is being overhauled in July 2010 and you can click here to read my previous article discussing this) Reasons for judgement were released today by the BC Supreme Court showing this legal principle in action.
In today’s case (Wittich v. Bob) the Plaintiff was injured in a 2004 BC Car Crash near Merritt, BC.  She sued for her injuries seeking up to some $800,000 in damages.  She claimed various accident related injuries including a herniated disc at C5-6.  In support of this claim two CT Scan Reports were entered into evidence, the first taken before the crash and the second after the crash.  The later scan was “interpreted by the radiologist as showing….a c56 level …herniated disc“.
The radiologist’s consultation report did not comply with Rule 40A.  Accordingly the report was only admitted for the fact that the diagnosis was made but not for the truth of the opinion.  Ultimately the court did not make a finding that the herniated disc was caused by the car crash.    Madam Justice Bruce summarized and applied the law to the facts of this case as follows:

[143] Of particular concern is the plaintiff’s failure to call any medical opinion evidence to support a finding that she suffered a herniated disc at C5-6 during the accident. As part of Dr. Grist’s clinical records, Mrs. Wittich entered two CT scan reports; one taken prior to the collision and one taken shortly thereafter. While the later scan was interpreted by the radiologist as showing a change from disc degeneration at the C5-6 level to a herniated disc that was impinging on the nerves of the spinal canal, this evidence cannot be regarded as expert medical opinion. These reports do not comply with Rule 40 and contain no indication of the radiologist’s qualifications and expertise to make these findings. Thus they are only admissible for the fact that this diagnosis was made and not for the truth of their contents.

[144] Moreover, even if I were to accept these reports as expert opinion evidence, there is the cogent evidence of Dr. Maloon, an orthopaedic surgeon, which supports a contrary finding as to the existence of a disc herniation. Dr. Maloon provided a detailed explanation for his conclusion that Mrs. Wittich did not suffer from a herniated disc, which included factors related to his physical examination of Mrs. Wittich and the symptoms she presented with at the time of his examination and interview. Dr. Maloon was qualified as an expert in the field of orthopaedic surgery and qualified to give opinion evidence as to the existence, cause and prognosis of spinal cord injuries. His evidence was thoroughly tested in cross examination and held up to scrutiny. In my view, it would be in the most unusual circumstances that the court would prefer the radiologist’s report to the evidence to that of Dr. Maloon and I find there are no such circumstances in this case. There is no evidence of the radiologist’s qualifications or expertise and no explanation of the reasons underlying his diagnosis.

[145] As a consequence, I find there is really no medical evidence before the court that Mrs. Wittich suffered any injuries to her neck apart from soft tissue complaints. In this regard, it was Dr. Maloon’s evidence that she likely experienced such injuries in the accident, but he was unable to specify which tissues (muscles, ligaments, or facet joints) were damaged based on Mrs. Wittich’s subjective reporting of vague pain symptoms.

The Plaintiff’s claim was largely dismissed and damages of just over $30,000 were awarded.  This case serves as a reminder that if the findings of a radiologist make up an important part of your personal injury case the evidence has to be served in compliance with the rules governing expert opinion evidence.