The best personal injury lawyers know that admissible evidence in a civil trial is the first step, and cornerstone, in proving any personal injury claim. The British Columbia personal injury lawyers and Court of Appeal in this injury case (Mazur v. Lucas) focused on the important question of whether a medical expert can rely on hearsay evidence, unproven at trial, to give admissible opinion evidence. The Court of Appeal overturned the $528,000.00 trial award on the ground that the opinion from the insurance company doctor , based in part on hearsay, should have been admitted into evidence at trial. This case confirms once more that medical expert reports can be admitted into evidence in British Columbia despite the failure to prove the proferred facts in the report.
The injury claimant was injured in a motor vehicle accident in which fault for the accident was admitted prior to the personal injury trial. At the time of the accident the claimant was 53 years of age, employed as a legal secretary for 26 years, and it was at best ,not in dispute that the claimant’s pre-accident disability was an anxiety and major depressive disorder. It was also not in dispute that one of the top personal injuries suffered by the claimant in the car accident was soft tissue injuries and she also developed a chronic pain disorder. What was in dispute at trial was the question of whether the injury claimant’s pre-existing psychological symptoms would have disabled her regardless of the accident.
The claimant was represented by a personal injury lawyer in British Columbia and the jury awarded the injury claimant the following:
Pain and suffering $ 55,000
Past loss of income $ 145,000
Future loss of income $ 307,000
Out of pocket expenses $ 3,400
Future care costs $ 8,000
TOTAL $ 528,400
In Lavallee Madam Justice Wilson, for the majority, referred to R. v. Abbey concerning the hazards inherent in admitting expert testimony based on hearsay extracted the following principles from Abbey (at 893):
1. An expert opinion is admissible if relevant, even if it is based on second-hand evidence.
2. This second-hand evidence (hearsay) is admissible to show the information on which the expert opinion is based, not as evidence going to the existence of the facts on which the opinion is based.
3. Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion.
4. Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist.
In this case Madam Juctice Garson summarized the law, para 40, on this question of admissibility of expert reports containing hearsay evidence as follows:
- An expert witness may rely on a variety of sources and resources in opining on the question posed to him. These may include his own intellectual resources, observations or tests, as well as his review of other experts’ observations and opinions, research and treatises, information from others – this list is not exhaustive. (See Bryant, The Law of Evidence in Canada, at 834-835)
- An expert may rely on hearsay. One common example in a personal injury context would be the observations of a radiologist contained in an x-ray report. Another physician may consider it unnecessary to view the actual x-ray himself, preferring to rely on the radiologist’s report.
- The weight the trier of fact ultimately places on the opinion of the expert may depend on the degree to which the underlying assumptions have been proven by other admissible evidence. The weight of the expert opinion may also depend on the reliability of the hearsay, where that hearsay is not proven by other admissible evidence. Where the hearsay evidence (such as the opinion of other physicians) is an accepted means of decision making within that expert’s expertise, the hearsay may have greater reliability.
- The correct judicial response to the question of the admissibility of hearsay evidence in an expert opinion is not to withdraw the evidence from the trier of fact unless, of course, there are some other factors at play such that it will be prejudicial to one party, but rather to address the weight of the opinion and the reliability of the hearsay in an appropriate self-instruction or instruction to a jury.
The court importantly went on to consider the civil court rules faced by personal injury lawyers in British Columbia and stated,
“ New Rule 11-6 expands on what an expert was required to state under old Rule 40A, but does not alter the general principle that it is essential for the trier of fact to know the basis of an expert opinion so that the opinion can be evaluated. The Rule has a dual purpose. The second purpose is to allow the opposing party to know the basis of the expert’s opinion so that they or their counsel can properly prepare for, and conduct, cross-examination of the expert, and if appropriate, secure a responsive expert opinion. Thus, the result of these reasons would be the same if this case had arisen under the new Rules. There is nothing in these Rules touching directly on the question of the admissibility of hearsay evidence in expert reports.”
The British Columbia Court of Appeal concluded that the trial judge was wrong in her ruling to edit the expert reports and confine the lawyer’s cross-examination. The legal errors committed by the trial judge were prejudicial to the defendant. As the court pointed out, “These errors amounted to a substantial wrong or miscarriage of justice because a jury apprised of all the relevant information might very well have arrived at a different verdict… it cannot be said that the defendants received a fair trial. The errors the trial judge made may have resulted in pivotal evidence being withheld from the jury. I would order a new trial.”
This injury claimant will now have to go through a whole new trial despite being awarded over $528,000.00 due to her injury, the fault of which was admitted by the other driver. The best outlook for personal injury lawyers in British Columbia is that the court will now take on a more common sense approach to the admission of medical reports. Posted by Mr. Renn A. Holness
Issue: Should expert reports that rely on unprovable facts be allowed to be given to a jury?