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.