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new rules regarding expert evidence have had profound impact
Friday, July 15, 2011
New rules regarding expert evidence came into effect January 1, 2010. For healthcare practitioners who regularly assess and/or treat injured plaintiffs, these rules have had a profound impact on which expert evidence will be admissible in court.
Expert evidence forms the crux of a personal injury case. Thus, lawyers wishing to use certain experts, whether treating or assessing, must work closely with those experts without compromising the goal of the new rules, which is to ensure the expert understands his or her duty is to the court as the court's advocate, and to assist the court on matters within his or her area of expertise.
This duty overrides any obligation an expert has to the party who retained him or her. In so doing, the expert remains fair, objective and non-partisan. The new amendments reinforce that notion.
Among the changes, the new rule on expert evidence enumerates the requirements of expert reports, including the following detailed content:
- a. the expert's name, address and area of expertise;
- b. the expert's qualifications and employment and educational experiences in his or her area of expertise;
- c. the instructions provided to the expert in relation to the proceeding;
- d. the nature of the opinion being sought and each issue in the proceeding to which the opinion relates;
- e. the expert's opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert's own opinion within that range;
- f. the expert's reasons for his or her opinion, including, a description of the factual assumptions on which the opinion is based, a description of any research conducted by the expert that led him or her to form the opinion, and a list of every document, if any, relied on by the expert in forming the opinion; and
- g. an acknowledgement of the expert's duty signed by the expert.
An individual's treating healthcare provider and/or independent medical examiner should be provided with a Form 53, Acknowledgement of Expert's Duty when requisitioned by lawyers or insurance companies for an expert report.
The first decision on expert report requirements, Beasley v. Barrand1, took a rather strict approach to compliance with the new rules but noted there will be instances where compliance is not always possible.
A more recent ruling, Grigoroff v. Wawanesa Mutual Insurance Company,2 recognized that some expert reports were created prior to the 2010 rule amendments and thus were not compliant with the new rules. Nonetheless the Court admitted the proposed expert evidence based on its usefulness in understanding the nature and prognosis of the injuries sustained by the Plaintiff.
Much of the determination on whether to allow a certain expert report or testimony rests on the distinction made between "treatment opinions" (opinions formed at the time of treatment) and "litigation opinions" (opinions formed for the purpose of assisting the court at trial and not for the purpose of treatment). In Slaght v. Phillips,3
Justice Turnbull outlined the following four classifications of experts:
- 1. Treating physicians, counselors, psychologists, physiotherapists and other treating specialists who form opinions with respect to the cause of an injury, course of treatment and other things as part of their ongoing work;
- 2. Experts retained by a party to an action to express opinions but who are not treating specialists;
- 3. Experts retained by third parties (for example, accident benefits insurers and disability insurers) to provide opinions with respect to causation, proper treatment, eligibility for insurance coverage, and a multitude of other issues; and
- 4. Experts retained by third parties but who assist the client with his or her needs and express opinions with respect to the need for treatment, recommended course of treatment, and next steps to be taken.
According to Justice Turnbull, the new rule on expert evidence was designed to target "litigation opinions" rather than "treatment opinions". Needless to say, there currently is no hard and fast rule on which experts will be allowed to testify at trial. Can accident benefits assessors give an opinion in a tort action?
In A nand v State Farm,4 the answer was no. There, the court held that accident benefits assessors may only be called to testify as fact witnesses. Conversely, the more recent decision of McNeill v. Filthaut,5 held that expert report requirements do not apply to individuals retained by nonparties to the litigation. None of these decisions have the final word on the admission of expert reports and Rule 53 requirements. For now, the gist of these decisions appears to support a case-bycase adjudication of the value of accident benefits assessors as expert witnesses in tort actions. It is safe to conclude however, that compliance with the new expert rules will no doubt assist the court in its determination of which medical experts may be permitted to give evidence, be it fact or opinion.
Medical and rehabilitation service providers should note there are drawbacks of being classified as a treating medical provider. Even the most well-intentioned treating physician or service provider may be seen as a “hired gun” or an advocate for the Plaintiff despite compliance with expert report requirements. What medical professionals should be aware of is their duty and obligation to assist the court in an unbiased and impartial role. Experts come to court to assist the trier of fact in the pursuit of truth. Treating or not, they are not advocates.
1 2010 ONSC 2095 (S.C.J.).
2 2011 ONSC 2279 (S.C.J.).
3 Unreported (May 18, 2010) (S.C.J.).
4 Unreported (April 23, 2010) (S.C.J.).
5 2011 ONSC 2165 (S.C.J.)
