During the course of this personal injury trial, the at fault driver, the defendant, sought to tender an expert medicolegal report and video deposition of an otolaryngologist (Lawrence v. Parr,2014 BCSC 2004). The claimant challenged the admissibility of the report on the basis that it did not comply with the mandatory conditions as set out in Rule 11-6 of the Supreme Court Civil Rules.
This personal injury case involved a car accident which occurred at the intersection of West 16th Avenue and Oak Street in Vancouver. The claimant was stopped at a red light when she was struck from behind by the defendant’s vehicle. The injury claimant was seeking compensation for her pain and suffering, past loss of earning capacity, loss of opportunity to earn income, future loss of earning capacity, loss of housekeeping capacity, cost of future care and out of pocket expenses.
The claimant’s lawyer sent a letter to the lawyer for the defendant outlining 11 objections to the admissibility of the report. In particular the claimant complained that the medical report did not include the certification as required under Rule 11-2 (2), a curriculum vitae, the instructions provided to the doctor, or a description of the factual assumptions on which the opinion was based.
When relying on the opinion of a medical doctor in a personal injury trial the following conditions must be met:
1. An expert report must set out the facts and assumptions on which it is based and a list of every document relied on by the expert in forming his opinion. Mazur v. Lucas, 2010 BCCA 473; Goerzen v. Sjolie, [1997] BCJ No. 44 (BCCA), and Ketza Construction Corp. v. Mickey, [1998] YJ No. 99 (YTSC).
2. Compliance with Rule 11-6- This is not simply a matter of form: Jones v. Ma, 2010 BCSC 867.
3. In order for a responding report to be admissible it must be responsive to the expert evidence of a witness called by the opposing party. Wright v. Brauer, 2010 BCSC 1282.
4. Expert opinion evidence must not be argument in the guise of opinion and should not usurp the role of the trier of fact. Yewdale v. ICBC, [1995] BCJ No. 76 (BCSC); Rai v. Wilson, [1999] BCJ No. 611 (BCCA); Neudorf v. Nettwerk Productions, [1998] BCJ No. 2690 (BCSC).
Judge Tindale reviewed approximately 3 ½ hours of video deposition and the report that was tendered as a responsive report. The doctor did not take a medical history from the claimant nor did he conduct a medical examination of the claimant. As the Judge pointed out:
The report in question did not contain the certification required under Rule 11-2 (2) though that was remedied at a later date. It did not contain the instructions provided to the doctor. His report was not clear as to the nature of the opinion being sought and the issues in the proceeding to which the opinion relates. There is no comprehensive list of the documents reviewed and where the doctor discusses a document he either makes vague, inaccurate or misleading references to that document.
The Judge was of the view that the admission of this report would cause prejudice to the claimant because despite a very lengthy cross-examination it was not clear what the purpose of the report was and what the factual assumptions were.
Therefore the report and evidence at the video deposition were found to be inadmissible.
Read my article about Personal Injury Lawyers in Vancouver Serving Medical Reports 84 days Before Trial to learn more about the admissibility of expert reports at trial.
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.
ISSUE: Are the expert report requirements in personal injury cases too strict?