Reasons for judgement were released this week by the BC Court of Appeal addressing the broad scope of permissible cross examination when a Plaintiff advances a claim for diminished earning capacity.
In this week’s case (McBryde v.Womack) the Plaintiffs were injured in various motor vehicle collisions. Their claims proceeded to trial by Jury where only modest damages were assessed. The Plaintiffs appealed arguing numerous errors including the scope of the cross examination discussing government financial benefits that were received. The Court of Appeal held that no overriding errors occurred at trial and upheld the Jury verdict. In finding the broad cross examination fair game the Court provided the following comments:  Ms. Golestani contends that she should not have been cross-examined about receiving government financial assistance when immigrating to Canada or about leaving her studies to pursue the business opportunity with Mr. McBryde. Ms. Golestani initiated proceedings to recover damages from some of the respondents, and in so doing placed a number of matters in issue, including her earning capacity and her occupational goals. In my view, the cross-examination complained of was an attempt to explore these issues, and did not exceed the permissible limits of cross-examination.
Reasons for judgement were released today addressing the permissible scope of Cross Examination of an expert witness in a BC Injury Claim.
In today’s case (MacEachern v. Rennie) the Defendants called a physician to give expert opinion evidence. This physician happened to be a treating doctor of the Plaintiff’s prior to her injuries. While testifying the doctor was taken through his clinical records by defence counsel on an entry by entry basis. The doctor was asked what happened on each of those clinic visits and in canvassing this the doctor gave evidence about the prognosis and treatment of Hepatitis C (which is an area the doctor apparently was not called to address).
The Plaintiff then wished to cross examine the doctor about treatments and the prognosis for Hepatitis C. The Defence lawyer objected to this on the basis that such a cross examination would “call for new opinion that are not admissible since the Plaintiff has not served the defendants with notice of those opinion“.
Mr. Justice Ehrcke swiftly rejected the Defendant’s objections noting that they could not restrict the cross examination on a topic which they chose to ask the doctor about in direct. Specifically Mr. Justice Ehrcke noted as follows:
 With respect to the first point, the CN Defendants argue that the notice which they served on the plaintiff in connection with Dr. Glynn-Morris contains only treatment opinions and does not touch on the area of the plaintiff’s Hepatitis C. This argument misses the mark. The plaintiff is entitled to respond to all the opinion evidence led by the CN Defendants, not just that which was contained in the written statement of Dr. Glynn-Morris’ opinion. It was counsel for the CN Defendants who chose in direct-examination to ask Dr. Glynn-Morris about testing of the plaintiff for Hepatitis C. It was in direct-examination that Dr. Glynn-Morris opined that in 30 percent of people, Hepatitis C cures itself and disappears, and that he ordered a test to see if that is what had happened in Ms. MacEachern’s case. Having opened up that area in examination-in-chief, the CN Defendants cannot now restrict the plaintiff’s cross-examination about it simply on the ground that it was not covered in the written statement that they had delivered to the plaintiff.
 In any event, the proposed evidence is also truly responsive as a rebuttal to the opinion of another expert witness called by the CN defendants, Dr. Baker, whose report entered at Tab 1 of Exhibit 61 states:
I note Ms. MacEachern had already contracted hepatitis C which with her ongoing ingestion of multiple drugs would likely have progressed with liver damage and possible cirrhosis and eventual liver failure.
 Nevertheless, the CN Defendants argue that even if the proposed line of questioning did not require notice pursuant to the provisions of Rule 40A, notice was still required because of the case management order made in respect of this trial on February 6, 2009, which provided, among other things, that the plaintiff’s reply or rebuttal reports were to be delivered by January 29, 2009. The CN Defendants point out that Dr. Baker’s report was delivered to the plaintiff on December 1, 2008. They submit therefore that any opinion evidence in reply to Dr. Baker’s report should have been delivered to them by January 29, 2009.
 The short answer to this argument is that the deadlines set out in the case management order relate to expert witnesses that each party proposed to call as witnesses in their own case. The order does not, by its terms, require a party to give notice of the questions it proposes to ask in cross-examination of another party’s witnesses, even if those questions in cross-examination have the effect of eliciting an expert rebuttal or reply opinion.
 The case ofCanadian National Railway Company v. Canada, 2002 BCSC 1669, 8 B.C.L.R. (4th) 323 cited by the CN Defendants is distinguishable, because that case did not deal with the effect of a case management order on questions asked of an opposing witness in cross-examination.
 To summarize: the questions that the plaintiff proposes to ask in cross-examination of Dr. Glynn-Morris are proper, and to the extent that they elicit expert opinions, those opinions are proper reply or rebuttal. Such reply or rebuttal opinions elicited in cross-examination are not subject to the notice requirements of Rule 40A, or of the case management orders that were made in this case.
It is common for lawyers involved in personal injury claims to retain the services of expert witnesses. The most common expert witnesses are medical doctors but often engineers, economists, and other specialists are brought into the fray.
Experts are typically retained to be involved in two common roles. The first role is to provide expert opinions to assist the judge or jury to understand the evidence called at trial. The second is to assist counsel in preparing the case for trial. When experts are retained to assist counsel to prepare for trial the communications between the expert and the lawyer are confidential and subject to litigation privilege.
When an expert takes the stand and gives opinion evidence they are subject to a cross-examination that is quite wide in scope. Does this permit the opposing side to ask questions about the confidential opinions and advice the expert gave the lawyer that retained him prior to trial? Not necessarily. Reasons for judgement were transcribed today by the BC Supreme Court, Vancouver Registry, dealing with this issue.
In today’s case (McLaren v. Rice) the Defendants to a car accident claim hired an engineer who was qualified to give expert opinion evidence regarding accident reconstruction and speed and speed changes. During cross examination the lawyer for the Plaintiff asked whether the defence lawyer sought his opinion with respect to a vehicle’s tie-rod and ball-joint assembly. The Defence lawyer objected to the question claiming it addressed matters that were protected by litigation privilege. Mr. Justice Brooke upheld the objection and in doing so summarized and applied the law as follows:
 In the recent decision of Madam Justice Satanove in Lax Kw’alaams, 2007 BCSC 909, the nature and extent of litigation privilege was considered. At paragraph 9, Justice Satanove referred to the decision in Delgamuukw where it was said that litigation privilege was waived when the expert witness was called, but that that waiver was to be narrowly construed and privilege maintained when it was fair to do so.
 In Vancouver Community College v. Phillips, Barratt (1987), 20 B.C.L.R. (2d) at 289 (S.C.), Justice Finch, as he then was, recognized that even where an expert is called as a witness he may remain a confidential advisor to the party who called him at least in regard to advising on cross-examination of the other side’s witnesses, including the other side’s expert witnesses.
 In Lax Kw’alaams as well as in Barratt, the issue was the production and cross-examination on documents that had been prepared by the witness. As I understand it, here all privileged documents are set out in part 3 of the document disclosure of the defendant and there is no suggestion that there are undisclosed documents.
 What the plaintiff wishes to cross-examine upon is not documents, but oral advice or opinions or commentary concerning the tie-rod assembly and ball joint, an area which the report of Mr. Brown does not pretend to address.
 I find, if Mr. Brown was asked questions out of court regarding the tie-rod and ball-joint assembly it was to assist the defendant in its defence of the plaintiff’s claim and specifically the allegation that the collapse of the tie-rod and ball-joint assembly caused the accident in which the plaintiff sustained devastating injuries.
 In my opinion, it would not be fair to require Mr. Brown to answer questions directed to matters outside the scope of his report because it could give the plaintiff an advantage not available to the defendant. Here I refer to paragraph 29 of Barratt. Moreover, to permit such cross-examination would cast a chill over the ability of counsel for both plaintiffs and defendants to properly prepare their client’s case and also to answer the other party’s case. In the result, the objection of the defendant is sustained.
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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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