Legal Principles
evidence
Plaintiff must call and exhaust their evidence,
including reply expert evidence pursuant to
Rule 11-6(4), as part of their case.
Introduction of authoritative articles or texts
through experts.
Cambie Surgeries Corporation v. British
Columbia (Medical Services Commission),
2016 BCSC 1739
Independent medical examinations
There are too many applications for late IMEs
Mirzai- Sheshjavani, (unreported), July 19, 2016
Defence can spy on P attending
There should not be any restriction on surveillance of
a plaintiff travelling to or from an IME
Marques v. Stefanov, 2016 BCSC 2589
plaintiff required to sign reasonable consent forms
Gill v. Wal-Mart Canada Corporation, 2016
BCSC 1176/Wee v. Fowler, 2017 BCSC
545
You can have a second IME.
Plaintiff attend IME with addiction medicine specialist
despite prior psychiatric IME touching on addiction.
Sahota v. Smithers, (unreported), July 19, 2016
Defence entitled to opinion from the specialist with the
most qualifications
Urine sample on 18 hrs notice ok
Sahota v. Smithers, (unreported), March 8, 2017
Factors for granting joint expert under rule 5-3
Sarrafi v. Sun Life Assurance Co. of Canada, 2016
BCSC
previous court criticism of proposed IME doctor does not disqualify from doing IME
Wohlleben v. Dernisky, 2016 BCSC 976
Brown v. Mitchell, (reported), July 13,
2016 New Westminster No. M158056
It is always preferable that evidence be taken
by live video conference rather than by
deposition
impartiality, independence, and absence of bias.
White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 [White Burgess].
threshold
(1) Relevance;
(2) Necessity in assisting the trier of fact;
(3) The Absence of any Exclusionary Rule; and
(4) A Properly Qualified Expert
Burgess at p 32
Rules of court
set out their expertise, qualifications,
instructions, the nature of the opinion being sought, the issues in the proceedings which the opinion
relates, and the opinion itself
11-6(1),
certifications
Rule 11-2(2),
certify they are aware of their duty to assist the court and
not be an advocate for any party
Court discretion
11-7(6) provides the court with a residual discretion to admit an expert report even where one
or more of the requirements in the Rules have not been met
guiding principles
(1) A “fulsome voir dire with appropriate evidence” with sufficient time allowed to properly
consider the issues will be held where substantive admissibility issues exist in respect to an
expert report;
(2) All notes and file contents, including digital recordings, must be retained by experts. This
material should be available for production at trial;
(3) Experts should have no misunderstanding as to their obligations;
(4) Counsel is responsible to ensure experts are aware of this obligation and this obligation
should be set out in the letter of instruction;
(5) The letter of instruction will be “front and center” in resolving any issue that might arise
regarding the expert’s obligation to retain all records.11
Jossy v. Johnson, 2016 BCSC 1023**
psychiatrist can still be a good expert even tho they get advocate-y
Cambie Surgeries Corporation v. British
Columbia (Medical Services Commission),
2016 BCSC 1822
disqualifying
Anderson v. Pieters, 2016 BCSC 889
(2) He relied heavily on two excluded opinions of other doctors;
(3) He did not properly reference academic literature or include the entirety of the article, which raised concerns about bias;
(5) The report was delivered late
(4) He failed to acknowledge the speculative nature of his diagnosis; and
(1) Dr. Sank was not qualified to provide expert opinion on a key medical issue,
which alone was fatal to the admissibility of the report;
don't include a lot of apendices
with facts or argument
or lengthy summay of records
Maras v. Seemore Entertainment Ltd., 2014 BCSC 1109
in the absence of prejudice to the defendants, an expert
report may be admitted even where it fails to comply with the Rules.
Mackey (Litigation guardian of) v. British Columbia (Provincial Capital Commission), 2016 BCSC 1878
considerations when
choosing an expert
(1) Whether your expert will provide a supportive opinion based largely on subjective
symptoms, or whether the expert will require objective symptoms to provide a
supportive opinion;
(2) Whether your client has been compliant with recommended treatment and how
any non-compliance will likely effect your expert’s opinion;
(3) The amount of time that has passed since the initial injury and your expert’s
typical timeline to declare an injury chronic or permanent;
(4) Whether your expert is typically supportive of the type and frequency of your
client’s treatment regimen;
(5) Your expert’s ability and willingness to distinguish between accident and nonaccident
related symptoms.
process
1.
provide the expert with the records, the pleadings, and to request a
preliminary telephone consult once the expert has reviewed the documents. The purpose of the
preliminary discussion is to ensure the expert understands what you are looking for, to address any
missing information, and to set timelines for assessments, reports, etc.
2.
either
review and revise your expert’s summary of the records before
the report is prepared. The summary may be too long, it may rely on other opinions set out in the
medical records that you will not be able to prove at trial, and it may refer to a host of inadmissible
or irrelevant information.2
engage with the expert at an early
stage to determine which facts are key to his or her opinion. These key facts should form the basis
of a set of factual assumptions prepared by counsel, which can be established at trial on the basis of
admissible evidence
3.
instruction letter
(1) A request that the expert include in his or her report the certification set out in
Rule 11-2;
(2) A request that the expert attach as an appendix to his or her report the letter of
instruction requesting a report;
(3) A statement of his or her qualifications with particular reference to the issue(s) he
or she is being asked to comment on;
(4) A list of the records the expert has reviewed in forming his or her opinion;
(5) A description of any research conducted by the expert including a list of any
sources referred to;
(6) Instructions to base the opinion on either or a combination of: (a) the factual
assumptions already provided, or attached; and (2) a set of assumptions prepared
by the expert (this is necessary when the expert has assessed the plaintiff and
therefore taken a history and conducted an examination);
(7) A list of specific questions the expert is to address; and
(8) Instructions with respect to formatting the report.
4.
suggest changes
You should be willing to go through multiple drafts with the expert if required.
Second, while you can anticipate the expert will be crossexamined
on the multiple drafts in his file, the cross examination will not go very far if it becomes
clear the expert has not changed his opinion at the request of counsel and the changes suggested by
counsel only served to improve the quality of the report.
First, very few of your files will end up in trial and therefore a clear and concise report is more
important to settlement negotiations than a draft report in the expert’s file is to the weight the
report will ultimately be afforded.