November 5, 2014- As a personal injury lawyer in BC since 1995 I can say that if you are going to stay on top of your practice of personal injury law it is important that you review all of the new requirements for expert reports, including the deadline for response reports.
Before the Court Rules were changed in 2010 an injury claimant could serve a medical report on ICBC 60 days before the expert was to testify. Response opinion had no deadline and could be given at trial without notice.
When planning on serving an expert medical report remember the following passage quoted with approval by the Supreme Court of Canada in R. v. Abbey (1982) and the Court there added:
“An expert’s function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate.”
When considering obtaining a response report in a personal injury lawsuit make sure that the report is in response to the opinion of the other sides doctor and not the claim generally. A true responsive report under the rules only responds to expert opinion served under the rules of court.
The deadlines to serve expert reports, if enforced, will likely limit claimants without personal injury lawyers from proving their injury claims. That is why the lawyers striving to be the top personal injury lawyers in this Province must ensure their clients have appropriate expert opinion served in a timely manner.
Here is Rule 11-6 with respect to serving your medical opinion in a personal injury case:
“Service of report
(3) Unless the court otherwise orders, at least 84 days before the scheduled trial date, an expert’s report, other than the report of an expert appointed by the court under Rule 11-5, must be served on every party of record, along with written notice that the report is being served under this rule,…
(4) Unless the court otherwise orders, if a party intends to tender an expert’s report at trial to respond to an expert witness whose report is served under subrule (3), the party must serve on every party of record, at least 42 days before the scheduled trial date, (a) the responding report, and (b) notice that the responding report is being served under this rule.”
Experienced injury lawyers should review Rule 11-7(6)(c) which can be used used to admit a late report if the interests of justice require it. This rule must be exercised sparingly, with appropriate caution, and in a disciplined way given the express requirements contained in Rules 11-6 and 11-7. That is, the “interests of justice” are not a reason to simply excuse or ignore the requirements of the other Rules. There must be some compelling analysis why the interests of justice require in a particular case the extraordinary step of abrogating the other requirements of the Supreme Court Civil Rules.( see Perry v. Vargas, 2012 BCSC 1537)
There are several other requirements that injury lawyers should be aware of when serving these reports and these requirements have not been addressed in this article. Look for my future updates on these new requirements and check out my article on why the changes in the rules of court make it more important to have a personal injury lawyer for your injury claim.
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness , B.A. LL.B.