This was a motor vehicle accident injury case set to proceed before a jury for eight days. 12 days before trial the defendant serve a Supplementary Report from an orthopaedic expert. The jury had just been selected and was required to stand down while the lawyers argued over the admissibility of this late report (Hilton v. Brink,2017 BCSC 1492).
In declaring a mistrial the trial judge made the following comments:
[45] If I were to rule the Supplementary Report inadmissible, then the defence would only be able to rely on Dr. P’s First Report and the trier of fact would be misled as to Dr. P’s actual opinions…
[46] On the other hand, if I admit the report into evidence in whole or in part, the plaintiff would not have the opportunity to properly address the opinions in the Supplementary Report …
[47] There is also the fact that the plaintiff should, in my view, have the opportunity to consider obtaining a report from an orthopaedic surgeon, which is Dr. P’s field of expertise to deal with the issues raised in the Supplementary Report…
[48] The plaintiff’s submission was that if the Supplementary Report were admitted in whole or in part that the trial should be adjourned. That cannot occur. The jury has been selected.
[49] I appreciate that both the plaintiff and the defendant would prefer this trial to proceed, but in light of the positions they have taken on this application, I see no other alternative to a mistrial. This, in my view, will provide fairness to both parties. They will now have the opportunity to put before the trier of fact the evidence they consider necessary based on the recently obtained records.
[50] A new trial will also provide the defence to address some obvious deficiencies in the Supplementary Report, in particular Dr. P’s statements regarding the plaintiff’s credibility.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.B. LL.B.