Filing Expert Reports as Exhibits at Trial - Part 2

In our last post, we discussed the Clark v. Zigrossi decision, where Justice Brown held that whether a party can file an expert’s report and call viva voce evidence from that expert is a matter of the court’s discretion.

In coming to this conclusion, Justice Brown undertook an analysis of the origins of the position that the report of an expert witness who testifies does not become an exhibit unless counsel agree or the court so orders. The approach was traced back to the 1974 Court of Appeal decision in Ferraro v. Lee (1974), 2 O.R. (2d) 417 (C.A.), in which the purpose of s. 52(2) of the Evidence Act was examined and it was found that the intention of the Legislature was to provide for the introduction into evidence of the medical report so that the party tendering it might be relieved from having to call the doctor to give evidence. It was then reasoned that a party cannot therefore proceed both to file the report and call the doctor. In drawing this conclusion, the Court of Appeal disagreed with the earlier case of Snyder v. Siutters, [1970] 3 O.R. 789 (H.C.J.), in which the trial judge granted leave to file the reports of doctors who were called to give viva voce evidence.

In Snyder v. Siutters, Wright J. held that it was in the interests of the administration of justice not only that the medical reports should be available in their entirety, but that if they are available, viva voce evidence of the practitioner should also be available. He went on to describe three great advantages of making both the reports and the experts’ testimony available to the jury, which Justice Brown found to possess a certain attractiveness. The advantages being that:

1) it enables a fixed and coherent opinion by the doctor to be put before the Court;
2) it enables the doctor, if he testifies to explain the technical language, and any other matters that arise by reason of evidence or other developments of the trial, and it gives the opposite party the right to cross-examine; and
3) it preserves for the jury room in an exact way the testimony of the doctor.

The Court of Appeal has subsequently interpreted Ferraro v. Lee and held that it is a matter of judicial discretion as to whether a party may both call an expert and file his report.

Thanks to our articling student, Alexandra Lacko, for contributing this post.

Filing Expert Reports as Exhibits at Trial - Part 1

Does Expert Testimony Preclude the Expert’s Report as an Exhibit?

In Clark v. Zigrossi, [2010] O.J. No. 3954 (Ont. Sup. Ct.), Justice Brown made a mid-trial ruling on whether an expert report can be filed as an exhibit even though the expert will be testifying at trial.

The plaintiff was seeking damages for injuries he alleged to have suffered in a July 2003 collision with the car driven by the defendant. The defendant had admitted liability and the jury was to assess damages. The plaintiff retained as an expert, Dr. Joseph Kwok, an orthopaedic surgeon who had prepared an expert report based on his examination of the plaintiff. The plaintiff served Dr. Kwok’s report on the defendant and gave the defendant notice pursuant to s. 52(2) of the Evidence Act, R.S.O. 1990, c. E.23. The plaintiff indicated his intention to adduce expert evidence “by either calling them to testify or by filing their reports.” At trial, plaintiff’s counsel sought leave both to call Dr. Kwok to give viva voce evidence and to mark his expert report as an exhibit, with copies of the report being provided to the jury so that they could follow the doctor’s evidence. Defendant’s counsel objected and submitted that the plaintiff must elect either to file the report or elicit viva voce evidence from the doctor. Defendant’s counsel acknowledged that if Dr. Kwok’s report was to be filed instead of him giving oral evidence at trial, she would require his presence to cross-examine him on his report, so Dr. Kwok’s attendance at trial would be necessary regardless of which path was taken.

Justice Brown held that the court possessed the discretion to permit an expert’s report to be filed where the expert intended to give viva voce evidence at trial. The needs of jurors to follow and understand the evidence should inform the exercise of judicial discretion.

Ultimately, in the circumstances of the case, Justice Brown did not think that the jury would encounter much difficulty in following Dr. Kwok’s evidence without having copies of his report and so it was not filed as an exhibit.

Justice Brown’s analysis affirms that there is no hard and fast rule that exists as to whether a party must elect either to file an expert’s report or call the expert to give viva voce evidence. In a jury trial, whether a party may call a health care expert to testify and also file his report as an exhibit remains a matter of discretion for the trial judge to determine.

The decision contains a good summary of the case law regarding filing expert reports and calling viva voce evidence. In our next post we will summarize those decisions.

Thanks to our articling student, Alexandra Lacko, for contributing this post.

Tort Defendant Not Permitted to Call Evidence from Plaintiff's Accident Benefits Assessors

Beasley and Scott v. Barrand, 2010 ONSC 2095 (S.C.J.)

This case involves the interpretation of the new requirements for experts pursuant to Rule 53.

The tort defendants in this trial sought to call evidence from three doctors who had assessed the plaintiff on behalf of his accident benefits carrier. The defendants made efforts to have the doctors brought into compliance with the new Rule 53.03 by having them sign an Acknowledgement of Expert’s Duty.

Justice Moore refused to allow the doctors to testify given that they could not comply with Rule 53.03. They were retained by an insurer that was not before the court, were not treating physicians and their instructions were not clear from the evidence. Justice Moore Held:

I am not to be heard to state that experts retained by accident benefits insurers cannot give opinion evidence in a tort action; rather, I say that such experts should first comply with Rule 53.03. I say “should” for there may be cases where that is not possible and then the court may consider relieving against non-compliance to ensure a fair adjudication of the issues upon their merits but this is not one of those cases.

This case places great constraints on the ability of the defence to call evidence with respect to the plaintiff’s injuries. It imposes a high hurdle for the defendants in order to call evidence relevant to the plaintiff’s injuries. Perhaps the accident benefits assessors could be called as fact witnesses which would mean r. 53.03 would not apply. It appears that this would be an area that would benefit from appellant intervention.

Before hiring a lawyer...

The GlobeandMail.com has an interesting article entitled Before hiring a lawyer, be sure to do your homework, by Tony Wilson.
You can read it at http://www.theglobeandmail.com/report-on-business/your-business/start/tony-wilson/before-hiring-a-lawyer-be-sure-to-do-your-homework/article1771820/