The courts require expert medical evidence to consider when determining the injured claimant’s injuries and the impact those injuries have had on that person’s life.  This expert evidence is essential to determine the proper amount of compensation to be awarded to an injured claimant.  This medical expert evidence is obtained either from the injured claimant’s treating doctors or from hired independent medical experts.

A medical legal expert is required to be honest, objective and unbiased.  The Rules of Court govern the policy and procedure to be followed in legal actions.  Rule 11-6 is the expert report rule and it sets out the requirements for all expert reports in that they must include the following:

  • the expert’s name, address and area of expertise;
  • the expert’s qualifications and employment and educational experience in his or her area of expertise;
  • the instructions provided to the expert in relation to the proceeding;
  • the nature of the opinion being sought and the issues in the proceeding to which the opinion relates;
  • the expert’s opinion respecting those issues;
  • the expert’s reasons for his or her opinion, including (i) a description of the factual assumptions on which the opinion is based, (ii) a description of any research conducted by the expert that led him or her to form the opinion, and (iii) a list of every document, if any, relied on by the expert in forming the opinion.

These are strict requirements.  If an expert report does not abide by these requirements, it can be found to be inadmissible at trial.

In addition to the expert report rule, the legal framework for the admissibility of an expert report requires that the report is considered “necessary to assist” the trial judge.  The report will be necessary where it provides information that is likely to be outside the experience or knowledge of the court, will assist in appreciating the technical dimensions of the matter in issue, and relates to something ordinary people are unlikely to form a correct opinion about without expert assistance.  If the report meets the threshold requirements, the court must exercise its role as gatekeeper.  The court must determine whether the benefits of admitting the evidence outweigh the potential harm to the trial process.  Where the probative value of the opinion is outweighed by its prejudicial effect, it should be excluded.

The admissibility of an expert report relied on by ICBC was challenged at trial by the injured claimant in Hartman v. MMS Homes Ltd. 2021 BCSC 726.

In this case, ICBC sought to have the expert report of an occupational therapist (OT) admitted into evidence which was objected to by the injured claimant.  This ICBC report was a responsive report critiquing and criticizing the injured claimant’s OT expert report.

The injured claimant objected to the admissibility of ICBC’s expert report on the basis that it was impermissible advocacy, it offered no opinions regarding the injured claimant’s abilities and that some of the ICBC expert’s criticisms were not put to the injured claimant’s expert under cross examination.  Furthermore, ICBC expert never examined or met with the injured claimant.

As with numerous prior decisions where ICBC expert reports were found to be inadmissible, the trial judge in this case ruled that ICBC’s report was not admissible on various grounds including that ICBC’s expert made a number of criticisms that were not helpful to the trier of fact, numerous passages were found to be argumentative and encroaching on the trier of fact’s findings:

[6]            I have now reviewed the report of Ms. Wilson.  I have some concerns with respect to the usefulness of this opinion.  The opinion does contain numerous instances where Ms. Wilson makes statements which encroach on the purview of the trier of fact.  For example:

a)    On page 5 beginning around line 130, Ms. Wilson sets out a long passage from an article regarding functional capacity evaluation testing.  She does not opine that this article is industry standard, or a requirement in her profession or anything else that might be considered useful.  It is simply included to buttress her criticism of the time spent by Mr. McNeil with the plaintiff, an assumption which was factually incorrect, although based on an error in McNeil’s report.

b)    At page 6 beginning around line 180, she states:

One cannot suggest a person is limited in sitting for long periods of time when the test itself is completed in approximately half a regular shift.

I find that comment to be argumentative.

c)     Page 6, under the heading “General Critique,” she makes a statement at paragraph 3 under factual assumptions:

Mr. McNeil uses Ms. Hartman’s subjective reports, none of which are actual facts.

I find this comment is taken as a criticism of the fact Mr. McNeil assumed certain facts to be true.  It is for the court to determine which facts are true.  An expert is entitled to set out his assumptions or understanding of the facts.

d)    At page 8, paragraph K, she says:

Provision of a gym pass is reasonable for two years maximum.  If Ms. Hartman enjoys attending the gym, she can continue annually at her own cost.

I find that passage to be argumentative.

e)    At subparagraph L, she says:

With regard to massage and physiotherapy, there is no evidence that such passive modalities have medical benefit, specifically after the amount of time that has passed since the MVI.  Also Mr. McNeil does not justify the medical need for the modalities.  Neither are deemed necessary.

I find that passage to be argumentative and encroaching on the trier of fact’s findings.

f)      Page 9, subparagraph M:

Mr. McNeil recommends a psychology assessment and treatment.  He did no assessment of Ms. Hartman’s psychological state and has no justification for recommending a psychologist.  As a registered clinical counsellor and occupational therapist, I feel qualified to suggest that an RCC would be reasonable if Ms. Hartman required counselling.  However, as she has not been assessed to have mood issues, this recommendation would not be deemed necessary.

I find that passage to be argumentative and to be encroaching in the trier of fact’s purview.

g)    Page 9, paragraph 11, “there was no evidence in the report the climbing of stairs or ladder was carried out”. Again, this is a finding of fact that is to be left for the trial judge.

[7]            Next, Ms. Wilson makes a number of criticisms which are not helpful to the trier of fact.  For example,

a)    She comments on Mr. McNeil’s motion-capture system.  She states she does not know about it.  She also says as one of her primary assumptions, however, which is at the beginning of her report, page 3, that her primary assumption is that all of Mr. McNeil’s methods are based on research methodologies.  This criticism appears to be inconsistent with the assumed fact she has laid out.  Further, that criticism was not put to Mr. McNeil under cross. 

b)    The article that I referred to earlier, which is quoted on page 5, was not put to Mr. McNeil for him to comment on whether he accepted it as authoritative.

[8]            Next, Ms. Wilson sets out opinions which are simply not helpful because she did not assess the plaintiff herself.  For example, at page 7, paragraphs 5 and 6, she comments on the strength, endurance, and flexibility of the plaintiff.  Her comments cannot have any weight given that Ms. Wilson did not examine her.  Mr. McNeil had the benefit of observing the plaintiff over seven hours, and his observations over that time, in combination with the testing he did, inform his opinion.  I am not satisfied that an opinion based on certain testing results in isolation are of any benefit to me as the trier of fact.

[14]         In the case before me, I am left to consider whether Ms. Wilson’s opinion meets the initial threshold of necessity.  Has Ms. Wilson provided the court with ready‑made inferences which, due to the technical nature of the facts, the court could not formulate on its own?  Ms. Wilson has not examined the plaintiff and cannot provide any valid inferences that the court can rely upon with respect to the plaintiff’s functional abilities.  Ms. Wilson has offended the rule set out in Brough and has set out inadmissible opinions. Defendant’s counsel did not put many of Ms. Wilson’s criticisms to Mr. McNeil such that Ms. Wilson’s criticisms are left in a vacuum and are of little assistance to me. 

[15]         After considering the whole of the Wilson report, I am not satisfied that the opinion meets the threshold requirements of necessity.  The report of Ms. Wilson will not be admitted into evidence.

Leave a Reply

Your email address will not be published. Required fields are marked *

Post comment