fumbling the ball with an expert...
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FUMBLING THE BALL WITH AN EXPERTWITNESS
Reginald WatsonBalfour Moss
700-2103-11thAve.Regina, Sask. S4P 4G1
Ph: 347-8300 Fax: 347-8350
Alan McIntyreRobertson Stromberg
Suite 1000 - 1777 Victoria Ave.Regina, Sask. S4P4K5
Ph: 569-9000 Fax: 757-6443
BIOGRAPHICAL INFORMATION
Reginald Watson
Reg earned a B. Admin. from the University of Regina in 1976 and an LL.B. from the University ofSaskatchewan in 1979. He was called to the Saskatchewan Bar in 1980. Reg's area of practice is in CivilLitigation. He is the former Editor of the Rules and Practice corner - The Advocate of Saskatchewan TrialLawyers Association; former President of Saskatchewan Trial Lawyers Association; CBA Health LawSouth Section Head; and has extensive involvement in continuing legal education programs in the areasof health law, law of evidence, law of discovery, and civil procedure. Reg practices with Balfour Moss inRegina.
BIOGRAPHICAL INFORMATION
Alan McIntyre
Alan earned a B.A. from the University of Regina and an LL.B. from the University of Saskatchewan. Hewas called to the Saskatchewan Bar in 1980. Alan's areas of practice include civil litigation, criminal law,and administrative law. His practice involves witnesses and hearings almost exclusively. He presented atthe 1990 Mid-Wint~r Meeting on practice issues. Alan practices with Robertson Stromberg in Regina.
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) EXPERT WITNESS CHECKLIST
Rule 284D(I) requires notice of expert witnesses including "qualifications of the expert". Thepractice in Saskatchewan has been to simply attach a copy of the curriculum vitae of the witness.In most circumstances, that is appropriate. It should be used as a tool to prepare yourself forqualifying your own witness and cross-examining the opponent's expert witness. The followingfactors should be addressed:
I. Name, Address and Background
2. Business or Occupation
a) Description of the business or occupation?
b) How long in that capacity?
c) With which company or organization?
d) What previous positions held?
e) A description of those positions.
3. Education
a) Undergraduate degree obtained when and from which school?
b) Postgraduate degree obtained when and from which school?
c) Any Masters or PHD thesis written.
4. Training
a) What courses have been taken in relation to their "expert" opinion?
b) Who have they trained under?
c) For how long?
d) When?
5. Licenses
a) Are they required?
b) When obtained?
c) Any specialty certification or review required?
6. Professional Associations
a) Which ones - executive positions held?
b) Other related information.)
c) Teaching positions - publications - lectures - consulting work.
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7. Expert Witness at Trials
a) How frequently have they testified?
b) Has it been for both .sides or only one?
c) Are the cases they testified in reported?
8. Experience in the Specialty or Area of Expertise
a) Types ofthings usually done
b) How often?
c) Types of tests?
d) How many annually?
e) How many over the course of your career?
9. Establish that the matter for which the opinion is sought is one which they are very familiarwith.
GENERAL BIBLIOGRAPHY
1. McElhaney's Trial Notebook, 2nd and 3rd Edition by James W. McElhaney, Published bythe American Bar Association
2. Fundamentals of Trial Techniques, 2nd Edition by Mauet (Canadian Edition)
3. 1993 Annual Advocacy Symposium (Joint Program with the Canadian Bar AssociationOntario and the Law Society of Upper Canada) entitled "The Expert Witness"
4. "Litigation", The Journal of the Section of Litigation, American Bar Associationpublished quarterly
5. American Jurisprudence, "Proof of Facts" by Lawyers Co-operative Publishing
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EXPERT SELECTION
Do's and Don'ts
In the 1983 Annual Advocacy Symposium, Mr. Ian Outerbridge, Q.C. presented a paper"Where to Find Your Expert". In that paper at ps. 3 and 4, he dealt with do's and don'tsconcerning your expert. Under the do list, he states the following:
1. Check the names against the indexes of articles in the field and see whether he has writtenand what he has written;
2. Check other previous clients - what did he do and how well or badly;
3. Check other lawyers who may have used him - what kind of witness did he make;
4. Review his credentials, recent experience, his philosophical approach to the subject - is he aperfectionist, is he likely to have a favourable or unfavourable viewpoint;
5. His previous experience as a witness and how he may be perceived by the court;
6. What is he likely to charge and how much support - or what testing and research is he likelyto require. Remember computer and research charges are usually extra;
7. Be sensitive to your client's perception of what is required.
Thereafter, he talks about avoiding (don'ts) and states the following:
1. The Hired Gun who will tell you what you want to hear and say what you want said (he isvery likely to strand you up a creek);
2. The regular or usual witness on the subject (whose prior testimony is probably in youropponent's possession for cross-examination;
3. The argumentative advocate (he is unlikely to be believed);
4. The egoist who can never make a mistake (and worse still will never admit it);
5. I used to say avoid the verbose - but that is not necessarily so - pompous verbosity is to beavoided - but some very bright people literally bubble over with words and ideas - but bevery careful - make sure they are understandable by ordinary people and beuncompromising on this point.
1. What is an expert (a) 3 types Alan McIntyre(b) experts with 2 hats Reg Watson
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2. Expert's duty (a) to the Court(b) experts that are advocates Reg Watson
3. Expert or Consultant (a) the difference between them Alan McIntyre(b) adverse inference and privilege Reg Watson
4. Who should the expert be(a) how crucial is the issue(b) what is the best I can afford(c) local v. out of "town"(d) experience and training Alan McIntyre
(e) balance and scope(f) lawyer referrals to treating physicians Reg Watson
5. When should the expert be retained?(a) sooner(b) later (appears bought) Reg Watson
6. Foundation - (a) experts - qualifications Alan McIntyre(b) facts - how to provide them Reg Watson
7. Pre-Trial - (a) preparation of expert Alan McIntyre(b) preparation of lawyer Reg Watson
8. Qualifications at trial - (a) Non-jury Alan McIntyre(b) Jury Reg Watson
9. Foundation at trial - (a) witness order Alan McIntyre(b) medical reports Reg Watson
10. Hypothetical question - (a) when Alan McIntyre(b) what to include(c) failure to use a hypothetical
and should have Reg Watson
11. Effective Examination-in-Chief of Expert Witnesses Alan McIntyre
12. Effective Cross-examination of Expert Witnesses Reg Watson
1. (b) Experts With 2 Hats
We are all familiar with, lay witnesses. Many of us are familiar with expert witnesses.Experts are often retained by lawyers to assist in assessing a situation after lithe event II hashappened. The expert typically reviews lithe facts" and renders an opinion. The expert shouldbe objective and approach his or her analysis from a dispassionate scientific point of view.
The role of the expert witness becomes blurred when the expert becomes part of lithe event II
or its aftermath. If the expert is part of the event, he or she will be called upon to giveevidence of fact as well as learned observation and opinion. This scenario often presentsitself when a treating health care provider is called to give evidence pertaining to the past,present or anticipated future status of a patient. In such cases counsel should consider, interalia, the following issues:
(a) What portion of the health care provider's evidence IS properlycharacterized as fact?
(b) What portion of the health care provider's opInIOn is properly.characterized as learned observation which may arguably be fact oropinion?
) (c) What portion of the health care provider's evidence will be classified asopinion?
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(d) If the health care provider's opInIOn is based upon factual mattersoutside the scope of the health care provider's observations, how andwhen will you establish these additional facts in evidence?
(e) Is the treating health care provider likely to be qualified as an expert inmatters related to a mechanism and causation of injury if these mattersare outside the normal scope of the health care provider's business,training, experience and reading?
(f) Does a treating health care provider have to be tendered as an expertwitness?
(g) What notice requirements must be complied with?
(h) Is there any practical difference between the use and effect of a doctorto doctor medical report as opposed to a doctor to lawyer medical/legalreport?
2. Expert's Duty
(a) To the Court
The expert's function is to render necessary assistance to the trier of fact in matters that arebeyond the scope of common experience. Expert testimony should assist the trier of fact inunderstanding the scientific or technical issues involved in a case. The expert is allowed tostate opinions and conclusions if the proper factual foundation has been laid.
The Court and the parties may have different expectations of the expert witness. The expertwill have certain expectations of the Court and counsel.
The expectations of expert witnesses were recently the subject of comment by Mr. Alan T.Snell in his article "Expert Witnesses" which appeared in the August, 1996 issue of theBenchers' Digest. A copy of that short article is annexed.
Counsel should view the expert's duty to the Court in light of what the charge to the jury willbe. Routinely, the Court will ask that jury to question whether the expert was impartial orwhether the expert appeared to favour the party that called him or her. If the answer to firstquestion is no, or if the answer to the second question is yes, counsel will have effectivelynegated most, if not all, of the probative value that was to be gained from the calling of theexpert in the first place.
The expert's duty to the Court should be brought to the attention of the expert witness at theearliest possible opportunity, as the failure of counselor the expert to understand the expert'srole can lead to insurmountable problems at trial.
The expert's role should also be understood by a opposing counsel. It is possible, throughcross-examination, to use the opposing expert as a fountain of information to establish viewsand theories. This may negate the expense of calling rebuttal evidence. By way of example Ihave attached pages 61 to 69 of the transcript of a cross-examination of Dr. M. Nattrass. Byhaving Dr. Nattrass admit that he was able to speak to both sides of the controversy in respectof the mechanism of TMJ injury, I was able to lead the opposing view of causation. In sodoing I established both· sides of the controversy and that temporomandibular jointdysfunction could be determined by applying the principles of standard orthopedicassessment. I later cross-examined an orthopedic surgeon who took a contrary view to that ofDr. Nattrass on the TMJ controversy. The jury adopted the orthopedic surgeon's view. Thejury awarded no damages in respect of the alleged TMJ injury and the defence did not have tocall any of its own evidence to succeed on this issue.
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2 (a) •
Expert Witnesses
(Allan T. Snell, a.c.)In the present climate ofcomplex litigation, the use ofexpert witnesses is not. ifindeed it ever was. merely anoption. Experts of all fields arenecessary to assist courts andlitigants in assessing whetherthere has been compliance withthe standards expected in theparticular area concerned. Itseems only common sensetherefore that lawyers who seekthe assistance of experts shouldwant to treat them with courtesyand respect. Nonetheless, thereis in the Law Society offices asmall but steady trickle ofcomplaints about lawyers whodelay or fail to pay expert fees,call expert witnesses at the lastminute, sometimes by subpoenawithout prior notice, andgenerally fail to acknowledgethat an expert almost bydefinition is busy and has otherimportant demands on his orher time.
Appearing as a witness is. almost always inconvenient andsometimes last minute delays,adjournments, etc. areunavoidable; nonetheless,anyone who feels that heor she has been treatedinconsiderately or rudely by alawyer, will have a story to telland that story will reflect badlynot only on the individual but onthe profession. Witnesses,indeed all with whom the lawyercomes in contact in his or herpractice, should be treated withcourtesy and respect.
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X-Exam of Dr. Nattrassby Mr. Watson
cheek muscles in the action of inhaling a
cigarette or smoking a cigarette.
Now, the pain that she described on turning her
head was described as pressure, wasn't it?
Moving the neck, yes, pressure; turning head,
yes, pressure; moving the shoulders, yes,
pressure.
Then when we go down to the part where you check
off the yes's or no's, the bottom -- the third
from the bottom on t;:he first column, "Do you
have tension headaches?" Answer: "Yes."
Correct?
Correct.
The next column, the fifth from the bottom, "Are
there any times when you notice that this
problem or pain is less or completely gone?"
The answer, "Yes." Correct?
Correct.
Now, if I could, I would like to discuss the
mechanism of an injury with you. And as I
understand it, and please interject if I'm
wrong, we're going to use the rear-end
situation, because that's the one we're most
familiar with. So I will be the driver, I'm
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X-Exam of Dr. Nattrassby Mr. Watson
driving my car. I get rear-ended, there is a
big force from the back, correct?
Correct.
My head has inertia, it remains stable while the
seat pushes my back forward. As a result, my
head goes into extension?
Hyperextension.
Hyperextension. If the force is big, the theory
is -- and this is how the injury occurs, as I
understand it, if the force is a big one the
head goes back and the jaw lags behind the head,
right?
Correct, because the throat muscles don't have a
chance to relax and they anchor the lower jaw,
so --
I just want to go through this so that the jury
understands.
Okay.
Okay. So the theory is and this is the theory
that's controversial, correct, because there is
debate in the literature about whether or not
the jaw even comes open; isn't that right?
Not in the literature I read.
Well, I will read some to you then?
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X-Exam of Dr. Nattrassby Mr. Watson
Okay. It must be dated.
It's last summer. A force into the back. The
head goes back, your theory, the jaw lags
behind. In order to even have the possibility
of a cervical -- or of a Temporomandibular Joint
injury, we have to have a cervical sprain,
because we have to take the tissues beyond the
range of motion; isn't that correct?
Right.
So we have to have a cervical sprain as a
condition before we' can have a TMJ?
It can happen --
Or simultaneously.
simultaneously.
But you're not going to get.a TMJ without a
cervical sprain?
Ah --
Because there's no way you can get into
extension?
Okay, I'd say simultaneously or in conjunction
with.
So that's the rear-end. Now, I grant you there
is some rebound in a rear-end collision, but the
rebound force, according to your reading, when
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X-Exam of Dr. Nattrassby Mr. Watson
we go back forward, is much less than the
initial, because things have slowed down; isn'~
that right?
When that -- when they -- when you go into
hyperflexion, which is coming back forward,
the -- the mouth, which has been opened wide in
two-fifths of a second and people can't even
remember that, because it happens so much, slaps
shut. I've had people who have broken all their
teeth off.
We don't have any broken teeth here?
No, no.
No.
We didn't have natural teeth, we had -- we have
denture teeth.
And we don't have any damage to the dentures,
that's all gone in before in testimony.
Okay.
So would you agree with me that in a rear-ender
we're back into hyperextension and then we get
some rebound, direct rebound, but it's at a
lower velocity when we go forward?
Right.
Okay. Let's turn it around. And in a frontal,
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X-Exam of Dr. Nattrassby Mr. Watson
if we see it, it's good to brace for it. That's
a good thing as opposed to a bad thing, we've
established that, correct?
Right.
In a frontal, the first thing we do is move
towards the direction of the force is basic
physics, correct? The body goes forward,
restrained by a lap shoulder combination seat
belt, okay? The whole body moves forward and
into the seat belt,correct?
You're talking front or back?
I'm talking frontal collision. I'm going
forward and I stop. The car stops before the
body stops, right?
Right.
So the body is going forward, so I'm into
flexion to start out with?
Right.
And I'm slowing down, I'm decelerating.
Decelerating as my car absorbs force and
crushes, correct?
Yes.
That's the theory. And as my body tissues move
in towards the seat belt, I mean move forward
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X-Exam of Dr. Nattrassby Mr. Watson
into the seat belt and it restrains me. So I
have distance to decelerate, correct?
Correct.
So when I move on a rebound in a frontal
collision into extension, the movement back in~o
extension is at a lower velocity, that's the
theory?
That's the theory.
So that if I'm going to get a cervical strain --
Just hold on here, that's the
theory.
Now, if I have -- and this is our evidence. If
I have a headrest at the right level --
Mmhmm.
-- in a high-back bucket seat, that structure
behind me assists in preventing this much lower
velocity rebound, right?
Correct.
So that my -- the force on rebound in a frontal,
isn't as much, it's less, correct?
Correct.
And that's why in a frontal collision, the
theory doesn't hold up or the injuries aren't
serious or however you want to say it. The
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X-Exam of Dr. Nattrassby Mr. Watson
reason that we don't see serious TMJ injuries
very often in frontal collisions is because
we're dealing with hyperextension on a rebound
as opposed to initially; isn't that right?
That's the theory anyway?
That's the theory. Now, I -- the individual
could be different. They could be more
predisposed or --
Absolutely.
-- or less predisposed.
That's your theory? .
Right.
Now, when we went through this earlier on, you
told me that you were familiar with both sides
of the issue, correct?
Earlier on today?
Yes.
Yes.
I would like to talk about -- I realize this is
not your view, but this is the other view in the
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to refer to various things, let's start off with
the "Oral Maxillofac Surgeon".
Maxill.
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X-Exam of Dr. Nattrassby Mr. Watson
Is that a journal that oral surgeons read?
Maxillofacial?
Yes. Is that an oral surgeon's journal?
Yes.
"Head accelerations produced by forces in the
neck on the extension and flexion motion", so
that's talking about a rear-ender, right
extension and flexion?
Yes.
"Within the threshold range for the cervical
spine injury will generate forces in the
Temporomandibular Joints that act in similar
direction, but are of substantially lower
magnitude than the forces encountered routinely
in normal mastication." Mastication is chewing,
right?
Mmhmrn.
Is that correct?
Yes.
Is that a yes or a no? That's the other view,
isn't it?
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Is that a yes?
Yes.
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X-Exam of Dr. Nattrassby Mr. Watson
We have to write everything down here.
Right.
So there are two views out there and one of the
views, not your view, but the other view is is
that the mouth doesn't even open and that the
whole theory of the mechanism of injury is
flawed, that's the other view; isn't it?
Yes.
And we also know that other factors can lead to
Temporomandibular Joint problems?
Yes.
Poor dental hygiene, correct? If I have a
history of bad teeth and loss of teeth, what
does that do to my mouth?
It causes the lower -- if you're losing lower or
back teeth, top or bottom back teeth., the lower
jaw, which is the moveable jaw slips backwards,
and to slip backwards isn't good, that's where
you're going to start having some trouble.
Now, Charlotte had lost upper and lower back
teeth
Yes.
-- before the accident?
All of her upper teeth and her lower back teeth.
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(b) Experts that are Advocates (They Wear Pointed Hats)
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If an expert shows bias, is unresponsive to questions, or volunteers information that is beyondthe scope of the question, problems can arise. The expert who trades the hat of impartialscientist for that of party advocate is an expert worthy of vigorous cross-examination. Oftentimes, the answers obtained on cross-examination are of no real consequence as the vigor withwhich the expert witness becomes an advocate for the party that called him or her speaksvolumes to the trier of fact about the weight to be given to the expert's evidence.
Expert witnesses can become advocates of a client's cause in a passive or aggressive fashion.In the case of a treating health care provider, if a known pre-existing condition is ignored anda prognosis is rendered upon an assumption that is known to be false, the expert witness willin all likelihood be neutralized and have no credibility. By way of example I am attaching across-examination of a chiropractor. The chiropractor in this case gave opinion evidence as tothe severity of a cervical spine injury based upon assumptions that he knew to be false. In thisparticular case the chiropractor completely disregarded cervical spine x-rays which he hadseen· and proceeded to render an opinion that presumed no pre-existing problems and heattributed all of the problems that appeared on the x-ray films taken two years later to theaccident. The dark shadow cast by this conduct in all likelihood had significant negativeramifications for this chiropractor's patient.
Counsel should not encourage the expert to be an advocate and we should be aware that ourinteraction and communications with the expert witness can become the subject of scrutiny ina proceeding. All dealings with expert witnesses should be above board and all applicablecodes of professional conduct should be honored.
The "hatted" expert turned advocate who loses or willfully forgets part of a file or engages indiscussions to suppress an unfavorable x-ray are a cross-examiner's delight. The properhandling of an expert witness is an essential element of effective advocacy.
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2 (b) • 53
trauma and treatment.
X-exam of Dr. Hamilton on Qual.by Mr. Watson
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THE COURT:
treatment?
MR.
He can give diagnosis and
Yes.
That's correct.
That's correct.
That's correct.
You have not taken classes in accident
Mr. Watson?
I'd like to cross, My Lady.
reconstruction?
You are not an accident reconstructionist?
You are not a radiologist?
CROSS-EXAMINATIONON QUALIFICATIONS:
You are not a medical doctor; correct?
MR. WATSON:
THE COURT:
MR. WATSON:
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No, I have not.
You do not have a degree in physics?
Did you go to the Canadian Memorial Chiropractic
College?
Yes, I did.
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No, I don't.
Chiropractic
recognize this?
No.
I'm quoting from -- do you
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54
X-exam of Dr. Hamilton on Qual.by Mr. Watson
Would you agree with me that -- I'm quoting from
your book -- "chiropractic is a natural healing
method"; correct?
Mmhmm.
Yes?
Yes.
The word is Greek in origin. It means treatment
by hand, to bend, twist or stretch; am I
correct?
Well, my understanding of the word "chiro" means
hand, and practic -- "praetor" would be one who
administers treatment by hand.
Is what you do to treat by hand and in so doing
to bend, twist and stretch?
I suppose those are elements of my treatment,
yes.
And the thesis of the profession, if you will,
is that the human body has restorative processes
to maintain its natural state of health, and you
assist the body's natural curative process in
maintaining, restoring and hopefully improving
the health for your patients; that's what you
do?
That's correct.
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X-exam of Dr. Hamilton on Qual.by Mr. Watson
Chiropractic is the science and art of treatment
by methods of adjustment by hand of one or more
of the joints with several articulations of the
human body; correct?
That's true, yes.
Are you familiar with the American Medical
Association guide which relates to permanent
impairment ratings? Are you trained in that?
No, I'm not.
You have no training in collision analysis?
No.
Not trained to treat emotional disorder?
Well, only insofar as primary contact
practitioners are trained to deal with people's
emotions. I mean, no additional training.·
You view it, but if it needs treatment, you send
it out?
Not in every case, but certainly if there was
some major emotional or psychological
disturbance, I would refer a patient to a
psychiatrist.
I asked you before about disability. I also
under~tand that you don't do evaluations of
permanent impairment in accordance with the
ROYAL REPORTING SERVICES LTD.
2 (b) • 56
is that correct?
and I don't use it.
A Not that I'm aware of.
standards of the American Medical Association;
As I understand, he's being
scope.
tendered as a Doctor of Chiropractic Medicine,
and he will be testifying both as to the actual
treatments and hands-on attendances with respect
if so, could you please direct me to it?
MR. WATSON: I have no further questions, My
Lady. I do have -- there will be argument on
X-exam of Dr. Hamilton on Qual.by Mr. Watson
use the American system of permanent impairment.
surgeons in Regina use it, so do you use
familiar with the American rating system.
THE COURT:
Q So there isn't one you use?
A Not a specific rating system, no.
Q Is there a Canadian system that you do use and,
something different or do you not use it at all?
A I'm not familiar with the American rating system
Q As I understand it, most of the orthopedic
Q For what? I didn't hear.
A I'm sorry, I said that I do not use and nor am I
A I'm a chiropractor from Canada so, no, I don't
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X-exam of Dr. Hamiltonby Mr. Watson
move a certain way or lift something heavy.
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THE COURT:
Mr. Watson?
MR. WATSON:
minutes.
Thank you.
Are you going to be very long,
I think I can do it in 20
THE COURT:
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CROSS-EXAMINATION:
Just so I understand, your evidence today is
that you would expect no improvement? Was that
your evidence today?
I believe I said I would expect no significant
changes in the cervical curve, but I didn't say
that I would expect no improvement of any kind.
You expect a gradual improvement in your
reports; isn't that correct?
Right. There would be some gradual improvement
leveling off to a plateau over a period of time;
that's right.
It's not qualified in your report. It just says
gradual improvement; right? That's what your
expectation was?
I can take a look if you'd like. I wrote it in
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X-exam of Dr. Hamiltonby Mr. Watson
1988, so I'll just have a look.
January 6th, 19 -- well, you know how to find
it.
The question in the report was "What
improvements do you expect?" and I said "Very
gradual," meaning that any improvements would be
very gradual in nature, limited in extent.
You expected improvement, so earlier when you
said you didn't expect any, that was wrong and,
in fact, you did expect some, albeit very
gradual; is that correct?
Not exactly correct, no. What I said was that I
didn't expect that there would be any
significant improvement or change in the
cervical curve. That was the question. But
this question in this report says would there be
any improvement in the patient's overall
condition?
And you thought yes?
I don't think that there would be any major
change or improvement over time. If there is
any improvement at all, it would be very gradual
in nature. It would come on over a long period
of time. That's what I said.
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X-exam of Dr. Hamiltonby Mr. Watson
You ordered the x-rays from the Plains Health
Center from September the 13th of 1986, didn't
you?
I did.
You looked at them?
Yes.
And you wrote them up in your clinical notes?
Yes.
And in your write-up, you will recall that -
have a look at it -~ you were of the view that
there was already a degenerative change at C3-4
and at C5-6, together with osteophytes on the
posterior portions or something like that?
Isn't that what your findings we~e?
That's correct.
Do you want to just run through what your
findings were from the x-rays taken on the day
of the accident?
Sure. These were x-rays that had been brought
over from the Plains Hospital. I presume they
had been taken either at the time of the
accident or shortly after. They were taken of
the front and sides view of the neck and one
with the mouth open. That's called AP lateral
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X-exam of Dr. Hamiltonby Mr. Watson
and AP open mouth. There was a mild left
lateral list. The lateral view showed that the
cervical spine was alordotic; that's to say
completely without a curve.
But it wasn't a reverse curvature, was it?
No, I don't believe it was a reverse curve, no.
Let's keep going.
Although sometimes it's a subtle finding.
That's not what you said, though, in your
report. It doesn't say "reversal of the
cervical lordosis," does it?
It does not say that, no.
Okay, let's keep going.
There was moderate degenerative changes in the
posterior aspect at C3-4 and C5-6.
So moderate is fairly significantly advanced
changes at C3-4, C5-6; isn't that correct?
That's correct.
And those changes were there obviously the day
of the accident?
That is true, yes.
And these changes take a long time to come
about?
That's right.
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X-exam of Dr. Hamiltonby Mr. Watson
And if we throw into the hypothetical facts a
rear end collision in 1969 of such force that it
drove the rear end of a Buick automobile
weighing 5,700 pounds into the back of the
driver's seat, I suggest to you that in your
experience you could maybe expect some injury
from that kind of force being applied to the
body; is that right?
I think that would be a safe assumption.
And for these little knots or whatever you call
them in the trapezius, they could have been
there before the accident of September the 13th
of 1986 and there's no way for you to know?
That's correct, I wouldn't have any way to know.
And you don't have any way to know what her
cervical lordosis was the day before the
accident?
Well, I can sort of extrapolate that actually
it's not as difficult to determine as you might
think. The time of the accident, she had
absolutely no cervical lordosis. And then two
years later when I took the x-rays, some of it
had returned. So I wouldn't expect, if the
initial cause of the injury was in -- what did
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X-exam of Dr. Hamiltonby Mr. Watson
you say? 1959? '69?
'69. So we have improvement in the cervical
lordosis, on your evidence, between 1986 and
1988; is that where we're at?
Right. You said that the original accident
occurred -- my notes show 1969. I was aware of
that accident, by the way. And if there was
going to be improvement as a result of the
injury in 1969, it should have been apparent by
1986. The cervical curve was completely absent
in 1986, which is very common following an
accident and consistent with what I would expect
to find.
You don't know because you don't have the
information. You can't say what the cervical
curve was. I mean, it's a mere guess what it
was the day before the accident; correct?
Well, I'm not trying to guess what it was the
day before the accident.
All you can say is that between the time of the
accident on September the 13th of 1986 and when
you took your x-rays in November of 1988, there
was improvement in the lordosis of the cervical
spine; is that your evidence?
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X-exam of Dr. Hamiltonby Mr. Watson
Normally what happens with a person that's been
in an accident --
No, I want to know if that's what you just said
with respect to this patient in a comparison of
the '86 to the '88 x-rays? That's the question.
Please answer the question.
With regards to this patient, she had no
cervical curvature when she was seen in 1986,
and she had a reduced cervical curvature when I
saw her in 1988.
The question is was there an improvement in the
cervical curvature between the date of the
accident and the date you took your x-rays in
1988; yes or no?
There appeared to be a slight improvement •.
So the answer is yes. Where are your films?
I didn't bring them with me.
Do they still exist?
I'm not sure. We normally keep them for seven
years and that would be more than seven years
ago.
They're long gone, aren't they, because I asked
for them and they weren't there?
I would have to ask my staff. If you've already
ROYAL REPORTING SERVICES LTD.
2 (b) • 97
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X-exam of Dr. Hamiltonby Mr. Watson
done that, I guess they're not.
Where did the referral come from?
Pardon me?
I suggest to you that the referral was from Mr.
7 ; is that correct?
your file as Mr. Jaques; correct?
yes.
mentions someone coming from another person,
And you endorsed the source of the referral on
did mention that I was a
That's correct. We normally note when a patient
I believe Mr.
chiropractor and suggested the patient see me,
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yes.
With respect -- where are your notes with
respect to range of motion on flexion and
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extension?
There was no measurable or I should say no
largely measurable changes in cervical flexion
and extension.
So she had full flexion and full extension then?
Not full, no.
Did you record anything -
I don't believe I did, no.
-- to show that it was diminished?
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X-exam of Dr. Hamiltonby Mr. Watson
No.
So she had --
Notes are designed to refresh your memory of the
patient.
And most health care professionals only record
negative findings; isn't that correct?
No, that's exactly wrong. In fact, most health
care professionals don't record negative
findings.
If she was okay -- the only range of motion that
you recorded in your file was rotation?
That was the most significant finding is the one
I recorded.
Is that the only range of motion that you
recorded in your file; yes or no?
Yes.
Okay. And in terms of rotation, you were of the
view that the normal rotation for the cervical
spine would be 70 degrees off the nose; is that
correct?
Actually, the normal minimal range of motion is
70, but the range.runs from 70 to 90 degrees.
In your report, you say 70 is normal. Isn't
that what you say in your report? I think you
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X-exam of Dr. Hamiltonby Mr. Watson
say it twice actually.
70 is the normal minimum range of motion for the
cervical spine, yes.
And that's what you said in your report?
I believe so.
And when she came to you the first time, she had
55 degrees each way on rotation?
Correct.
And in January when you wrote your last report,
she had 65 out of a possible 70 degrees on
rotation; isn't that correct?
Well, the maximum possible range of motion is 90
degrees.
Your report says 65 out of 70; isn't that
correct?
No, I don't believe it says that.
Well, have a look at it. "Cervical range of
motion measured 65 degrees bilaterally. Normal
equals 70"; is that what it says?
If a person had a range of motion of
Is that what it says in your report, witness?
I believe it is, ¥es.
And that was your observation that day; isn't
that correct?
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X-exam of Dr. Hamiltonby Mr. Watson
That's correct.
And she had flexion and she had extension almost
to the normal range, and you recorded no finding
to the contrary; isn't that correct?
I didn't make any recording either way.
But you've already given evidence that she had
flexion and extension almost to the limit;
wasn't that your evidence?
No, it was not.
She had flexion and extension -- you show me
what you think she had?
Pardon me?
Show me how much flexion and extension you
remember? Just show us?
Well, with almost everybody that's been in an
accident, there is reduced flexion and reduced
extension.
No, I want -- you didn't -- first of all, we
know you didn't record flexion and extension.
Right. It would be --
You recorded rotation because you thought it was
significant and it was --
Right. It was the most significant finding.
So if we're five degrees off normal in January
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X-exam of Dr. Hamiltonby Mr. Watson
of 1989 on rotation, then we're somewhat less
than that restricted on rotation and lateral
flexion; isn't that right? That's a reasonable
assumption based on what you just said?
You just said the same thing twice. You said if
the cervical rotation was limited, then cervical
rotation would be limited. I'm sorry, could you
repeat that?
You recorded in your January, 1989 report that
cervical rotation was limited by five degrees.
It was 65 out of 70; correct?
That is not correct.
Read your report to me. It says --
The normal range of motion in a cervical spine
is from 70 to 90 degrees.
What did you say when you wrote your report? It
says "normal equals 70". Is that what it says?
The minimum normal range of cervical motion is
70 degrees.
Is that what your report says? Look at your
report. Tell me if that's what it says?
My report says that 70 degrees ~s the minimum
normal range of cervical motion.
And she was at 65 in January when you last saw
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X-exam of Dr. Hamiltonby Mr. Watson
her; correct?
That's what my notes say, yes.
And with respect to rotation -- or with respect
to lateral flexion, flexion and hyperextension,
she was better off than she was on rotation
because rotation was the only thing that you
commented about; isn't that right?
That's reasonable, yes.
Thank you. So to sum it up, at the time you
first saw her and saw the x-rays she had
moderate, already existing at the time of the
accident, preexisting changes and a degenerative
condition in her neck; correct? And at the time
she -- is that correct?
Well, she had some degenerative changes at C3
and C4, yes.
That you described as moderate?
That's correct.
At the time she left you, she was restricted in
range of motion five degrees on rotation
bilaterally and something less than that in the
other planes; is that correct?
I think I've already answered that question.
With a yes?
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X-exam of Dr. Hamiltonby Mr. Watson
No~ it is not right.
Well, the record will show what the answer was.
Thank you, witness.
(COURT ADJOURNED AT 12:40 P.M.)
the jury, you're released until 2:00.
may step down, you're free to go. Members of
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THE COURT:
MR.
THE COURT:
Re-exam?
No, My Lady.
Thank you, Dr. Hamilton, you
ROYAL REPORTING SERVICES LTD.
3. Expert or Consultant?
(b) Adverse Inference and Privilege
(i) Adverse Inference
Counsel should be aware of the fact that certain expert evidence may be essential inestablishing a claim. Failure to cal1 medical evidence can in some cases lead to the drawingof an adverse inference: see: Tracene Hill v. The Saskatchewan Health Care Association,Q.B. Judgment 96165, an unreported decision of Madam Justice EJ. Gunn dated April 23,1996.
(ii) Privilege
If an expert is going to be called to give evidence it is highly likely that the "litigationprivilege" that may have once attached to the IIworking product" wil1 be lost.
Attached is a recent Rule 215 Motion, supporting Brief and Order in respect of an application·I recently made to obtain production of the working product exchanged between opposingcounsel and his expert witnesses. Production of the working product assists greatly inpreparing for trial and in avoiding disclosure problems and problems encountered in caseswhere reports are altered along the way. A copy of a recent professional conduct ruling inrespect of medical reports which appeared in the August, 1996 Benchers' Digest is alsoannexed.
In order to verify the integrity of the facts that are obtained from non-party sources, counselmay also wish to consider a Rule 236 application to obtain the relevant documentary evidencedirectly from the non-parties to the proceeding.
3 (b) (ii) •
CANADAPROVINCE OF SASKATCHEWAN
)) Q.B. No. 2322 of A.D. 1993
)
"IN THE COURT OF QUEEN'S BENCH
JUDICIAL CENTRE OF REGINABETWEEN:
RHONDA LEE KAPELL,
PLAINTIFF- and -
KATHLEEN L. ABEL.
DEFENDANT
NOTICE OF MOTION
TAKE NOTICE that an application will be made to the Presiding Judge in
Court, at the Court House in Regina, Saskatchewan on 1uesday the 10th day of September,
1996, at 10:00 o'clock in the forenoon or so soon thereafter as counsel can be heard on behalf
of the Defendant for an Order pursuant to Rule 215( I)(b) and 215(2) compelling the Plaintiff
to serve a Supplementary Statement as to Documents which identifies the documents over
which the Plaintiff asserts a claim for privilege and which sets forth the nature of the pivilege
claimed and orders the Plaintiff and her solicitors to produce the letters of request,
correspondence, enclosures, memorandums, draft, amended and revised reports exchanged
between the Plaintift's solicitors and the Plaintift's expert and/or medical witnesses who will
be called to testify at the trial together with all other communications passing between the
Plaintiff and/or her solicitors and these individuals.
AND FURTHER TAKE NOTICE that the said application will be made upon
the following grounds:
1. The Plaintift's Statement as to Documents does not specifically identifyby date and description, the documents over which the Plaintiff seeks tomaintain a claim for privilege and the nature of the privilege claimed isnot specified;
2. The Plaintift's solicitor has advised that he intends to file the variousmedical reports, which are annexed to the Plaintift's Pre-Trial Brief, asexhibits at trial and if this constitutes a Rule 284C Notice, then the Rule
3 (b) (ii) • - 2 -
284C Notice operates as a waiver of privilege and the documents thatthe Defendant now seeks production of should be produced; and
3. This matter is scheduled to proceed to trial on September 24, 1996 andthis information is required immediately as the Defendant is in thepreparatory stages of the trial.
AND FURTHER TAKE NOTICE that in support of the said application will
be read the Plaintiff's Statement as to Documents, the Pre-Trial Conference Report, the
Affidavit of Phyllis L. Norrie, the Plaintiff's Pre-Trial Brief, a draft Order, a Brief of Law and
the pleadings and proceedings had and taken herein.
DATED at Regina, Saskatchewan this 4th day of September, 1996.
BALF~ Cper:~ad.~Solicitor for the Defendants
TO:
AND TO:
LOCAL REGISTRAR
S.G. SEGAL LAW OFFICEBarristers and Solicitors1530 London Life Place1855 Victoria AvenueRegina, SaskatchewanS4P31'2Attention: S.G. Segal
This document wu denv.ed by:
BALFOUll MOSSBarristers and SoIic:iton700·2103 11th AVemaeRegina, SaskatchewanS4P4Gl
whose address for service is: u aboveLawyer in charge offile: Phyllis L. Nonie
Reginald A WatsOnTelephone: (306) 347·8300File: 497.00.003 PLN
3 (b) (ii) •
CANADAPROVINCE OF SASKATCHEWAN
)) Q.B. No. 2322 of A.D. 1993
IN THE COURT OF QUEEN'S BENCHJUDICIAL CENTRE OF REGINA
BETWEEN:
RHONDA LEE KAPELL,
PLAINTIFF- and -
KATIn..EEN L. ABEL.
DEFENDANT
DEFENDANT'S BRIEF OF LAW
I. INTRODUcrION
1. The trial ofthis action is scheduled to proCeed on September 24, 1996.
2. The Defendant seeks an Order pursuant to Rule 215 which compels thePlaintiff to produce a Statement as to Documents in the proper fonn. The degree ofspecificity required in a Statement as to Documents where privilege is claimed has been thesubject ofcomment in various cases, most notably Schlechte,. v. Schlechte,. (1989) 73 Sask. R.
13 Sasic Q.B.
3. The "boiler plate" description contained in the Second Part of the FirstSchedule ofthe PlaintUfs Statement as to Documents does not identify, in any way, thedocuments over which the Plaindadvances a claim for privilege. Neither has the Plaintiffidentified the nature ofthe privilege claim claimed.
4. The Defendant is also seeking an Order which would not only compel thePlaintiff to specify the documents over which the Plaindclaims privilege, but to produce thedocuments exchanged between her or her solicitor and the various expert or medicalwitnesses that will be called to testify on the Plaintiffs behalfat trial. These experts and/or
health care providers include the following:
(a) Dr. S. Thackeray;
3 (b) (ii) •
(b)(c)(d)(e)(f)(g)(h)(i)
- 2 -
Dr. lG. Michel~
Dr. S. Barber~
Stewart & Stewart Physiotherapy Clinic~
Advanced Therapeutic Massage Inc.~
Dr. E.W. Gherasim~
Dr. M. FinkGold Square Physical Therapy Clinic and its staff~
Dr. R.D. Parker
n. RULE 215 APPLICATION
5. Rule 215 provides as follows:
21 S( 1) Ifany party:(a) neglects, refuses or objects to make discovery of documents as requiredby Rule 212; or
or(c) shall in such statement so filed and served have made a claim toprivilege in respect of documents referred to therein;·or
then the party so desiring production may apply to the court for an orderrequiring the other party to make production ofdocuments or for further orbetter production or for inspection or detennining whether documents inrespect ofwhich privilege is claimed are in fact privileged and upon suchapplication the court may make an order for production or inspection in suchmanner as may be just.
(2) Ifupon such application any privilege is claimed for any document thecourt may inspect such document for the purpose ofdeciding as to the validityof the cllim for privilege and to consider all relevant evidence which may beadduced tending to establish or destroy such claim for privilege.
6. In considering this application, the nature ofthe documents the Defendant
seeks production ofba to be considered.
7. The documents to be produced from all ofthese health care providers other,than Dr. Parker, fall within the category ofdocuments prepared by "health care providers".As trained observers these health care providers possess special knowledge and it is theirmission to assist persons who have been injured or who suffer from disease. "Hands on"
3 (b) (ii) •
·3 -
health care providers obtain personal histories, listen to subjective complaints, attempt to
make objective findings through observations and/or testing and then arrive at a diagnosis or
prognosis while suggesting treatment plans that hopefully assist their patients in regaining
their health. Treating health care professionals do not usually "work" for lawyers, instead they
treat their patients and the lawyer becomes a necessary evil in the circumstances. The health
care providers "dominant purpose" is to treat the patient. In the case at bar, none of the
communications passed between the Plaintiffs health care providers and her solicitors have
been produced. The numerous reports that the Plaintiff intends to file in evidence at trial were
no doubt written in response to letters of request from the PlaintifFs solicitors. The "working
product" that led up to the final reports, are the focus of the documents that the Defendant
now seeks production of. The information that these health care providers relied upon in
preparing their reports is important. The questions posed in the letter of request should be
read together with the answers given in the medical reports in the Defendant's respective
VIew.
8. The documents prepared by Dr. Parker would appear to fall within a different
category as Dr. Parker was not a "treating health care provider" but more of an expert witness.
9. The documents over which the Plaintiff has not produced upon grounds of
privilege will no doubt contain information that is relevant and probative to the issues before
the Court. The validity ofthe Plaintift's claim for privilege should be adjudicated upon on a
document by document basis. The four step analysis suggested in Wigmore, Evidence inTrials at Common Law, Vol. 8, McNaughton Revision, paragraph 2285 is as follows: .
(1) The communications must originate in a confidence thatthey will not be disclosed.
(2) This element is confidentiality must be essential to theiWl 8ncI satisfactory maintenance of the relation between theparties.
(3) The m1Itism must be one which in the opinion ofthecommunity ought to be sedulously fostered.
3 (b) (ii) • - 4 -
(4) The injury that would inure to the relation by thedisclosure of the communications must be greater than the
. benefit thereby gained for the correct disposal of litigation.[Emphasis in original.]
10. Compliance with these four conditions must be established by the Plaintiff, as
the Plaintiff asserts privilege and seeks to have the claim of privilege upheld. The documentsover which the Plaintiff may have validly claimed as privileged at one time, may no longer beprivileged as a waiver of privilege occurs when a Rule 284C or D Notice is served.
11. Ifan expert report is produced pursuant to a letter of request, it is hard toimagine the basis upon the letter requesting the report can be claimed as privileged when thereport received will be relied upon. The request and the report should be read together. As
most expert reports are responsive to the letters that requested them, it is difficult if notoutright dangerous to read and interpret an expert report without knowing what the report is
responding to. It is also hard to imagine why a party w~iJld refuse production of the letter of
request, unless it contained something that the party requesting the report did not want to bedisclosed. As the basis upon which the expert report was written is essential to understanding
its contents. the letters of request should be ordered produced in this case. The Plaintiffhasplaced her health in issue and all relevant information concerning her post-accident health,
treatment. prognosis and information related to causal relationships should be produced.
12. Claims ofprivilege that are advanced within the category of litigation privilege
are generally harder to maintain than claims that fall within the category ofsolicitor/client
privilege. The reason for this can be found in the written judgment ofMadam Justice
L.'Heureux-Dube, inR. Y. Gtwmr. [1991], 3 S.C.R. 263 where it is stated at pp. 296-6:
One ofthe primary aims ofthe adversarial trial process isto find the truth. To assist in that search, all persons must, ifrequest, app.. before the courts to testify about facts and eventsin the realm oftheir knowledge or expertise. This requirement some would call it duty - can be traced far back into the historyofthe common law, and can now be found in statutory fonn inthe federal and provincial Evidence Acts. Ifthe aim ofthe trialprocess is the search for truth, the public and the judicial system,must have the right to any and all relevant information in order
) -
3 (b) (ii) •- 5 -
that justice be rendered. Accordingly, relevant infonnation ispresumptively admissible. Exceptions may be found both instatutory fonn, and in the common law rules of evidence, whichhave developed in order to exclude evidence that is irrelevant,unreliable, susceptible to fabrication, or which would render thetrial unfair. Courts and legislators have also been prepared torestrict the search for truth by excluding probative, trustworthyand relevant evidence to serve some overriding social concern orjudicial policy. The latter are the source of privileges for certainprivate communications. Perhaps the most common example isthe solicitor and client privilege. see S%sley v. The Queen,[1980] 1 S.C.R. 821.
The categories of privileged communication are,however, very limited· highly probative and reliable evidence isnot excluded from scrutiny without compelling reasons. InSopinka and Lederman, The Law ofEvidence in Civil Cases(1974), the author remark at p. 157:
The extension ofthe doctrine of privilege consequentiallyobstructs the truth-finding process, and, accordingly, the-law has been reluctant to proliferate the areas of privilegeunless an external social policy is demonstrated to be ofsuch unequivocal importance that it demands protection.
See also R. Y. Sinder. [1954] S.C.R. 479, in particular Rand J.'s opinion at pp.482-83, and Wigmore, Evidence in Trials at Common Law, McNaughtonRevisiOlll, wI. 8, para. 2192, at p. 73. The American case law takes the sameposition: Trammel Y. United Stilles, 445 U.S. 40 (1980); University ofPe1I1&fYlwIIIia Y. Equal Employment Opportunity Commission, 110 S.Ct. 577(1990). Por the Australian position, seeJohn Fairj'ax & Sons Ltd. Y. Cojuangco(1988).164 C.L.R. 346 (HC.), and McGuinneu Y. Attomey-General ofVictoria (1940),63 C.L.R. 73 (HC.), especially at pp. 102-3.
13. Physicians Ire routinely called upon to give opinion evidence in this court. As
experts, the role ofthe treating physician is to assist the court in understanding the nature and. extent ofthe Plaintiff's injuries, together with the particulars ofthe Plaintiffs recovery and
prognosis. At times, the medical practitioner is called upon to assist the court in respect of
3 (b) (ii) •·6·
legal concepts such as that of causation. Statements made by the patients to doctors are notprivileged, nor are the doctors' finding or the information that doctors collect and assimilate inrespect of the Plaintiffs' condition. If all of this information is producable, why should thePlaintiff be able to maintain a claim of privilege over certain portions of the physician's file?This is the questions that this Court must grapple with upon this application.
14. The rationale for lawyers brief and litigation privilege was referred to inOttawa-Carleton (Regional Municipality) v Consumers' Gas Co. (1990) D.L.R. 4th 942 at
948:
The adversarial system is based on the assumption that if eachside presents its case in the strongest light that court will be bestable to detennine the truth. Counsel must be free to make thefullest investigation and research without risking disclosure ofhis opinions, strategies and conclusions t~ opposing counsel.The invasion ofthe privacy of counsel's trial preparation mightwell lead to counsel postponing research:and other preparationuntil the eve ofor during the trial, so as to avoid early disclosureofharmful infonnation. This result would be counter-productiveto the present goal that early settlement ofthe case. Indeed, ifcounsel knows he must tum over to the other side the fruits ofhis work, he may be tempted to forgo conscientiouslyinvestigating his own case in the hope he will obtain disclosureofthe research, investigations and thought processes compiled inthe trial briefofopposing counsel ...
IS. The two conditions for this "working product" or "lawyers brief" privilege toattach are as follows:
First, such communications with third parties must have beenmade specifically with existing or contemplated litigation inmind and not just in the context ofgeneral legal professionaladvice. Secondly, special regard must be had to situations wherethe creations ofa document or report has a two-fold PurPOse, oneofwhich is to assist counsel in litigation. In such cases, it hasbeen held in England that the privilege will only attach if thedominant purpose for the third.party communication was toassist in possible forthcoming litigation. In Waugh v British
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3 (b) (ii) •.7·
Railways Board the House of Lords ordered production of anaccident report which has been commissioned for both safetypurposes and for the purpose of obtaining litigation advice. Indiscussing the use of this test, Lord Wilberforce stated:
It is clear that the due administration ofjustice stronglyrequires disclosure and production of this report: it wascontemporary~ it contained statements by witnesses on thespot' it would be not merely relevant evidence, but almostcertainly the best evidence as to the cause of the accident. If'one accepts that this important public interest can beoverriden in order that the defendant may properly preparehis case, how close must the connection be between thepreparation of the document and the anticipation oflitigation? On principle I would think that the purpose ofpreparing for litigation ought to be either the sole purpose orat least the dominant purpose of it: to carry the protectionfurther into cases where the purpose was secondary or equalwith another purpose would seem to b.e excessive, andunnecessary in the interest ofen'couraging truthful revelation.At the lowest such desirability of protection as might exist insuch cases is not strong enough to outweigh the need for allrelevant documents to be made available.
See also: Laxton Holdings Ltd. et al. v. loA. Madell (1988) 72Sask. R. 313 (Sask. C.A.)
)
16. From a policy point ofview it is submitted that the Court has an important role
to play in ensuring the sanctity of its process. Expert witnesses must understand their role of
experts and lawyers must wtderstand their role as lawyers and strictly adhere to the Code of
ProfessionalCon~ Itwould be improper for a lawyer to place undue pressure upon aphysician to write a report in a specific way or to provide inaccurate historical information fora physician to base a report upon.
17. As previously stated, the Defendant submits that the production ofan expertreport operates as a waiver ofany claim ofprivilege that may have attached to the letter of
request, prior to the disclosure ofthe expert report. The Defendant submits further that if the
expert report that is eventually produced is an amended version ofa report, that the earlier
versions ofthe report and the letters of request for amended versi!3ns should also be produced.
3 (b) (ii) •- 8 -
)
18. The Defendant submits that the production of a medical report operates as awaiver of any claim of pnvilege that may have attached to the letter of request, prior to thedisclosure of the medical report. The Defendant submits further that if the medical report thatis eventually produced is an amended version of a report, that the earlier versions of the reportand the letters of request for amended versions should also be produced.
19. The concept of waiver was recently discussed by Mr. Justice Gerein inSaskatchewan Economic Development Corp. v. Smith-Roles Ltd and The Royal Bank of
Canada (1990) 82 Sask. R. 233 where Mr. Justice Gerein states at p. 235:
"What constitutes a waiver by implication?
Judicial decisions give no clear answer to this question. Indeciding it, regard must be had to the double elements that arepredicated in every waiver, i.e., not only ttte element of impliedintention, but also the element of fairness' and consistency. Aprivileged person would seldom be found to waive, ifhisintention not to abandon could alone control the situation. Thereis always also the objective consideration that when his conducttouches a certain point ofdisclosure, fairness requires that thisprivilege shall cease whether he intended that result or not. Hecannot be allowed, after disclosing as much as he pleases, towithhold the remainder. He may elect to withhold or to disclose,but after a certain point his election must remain final.
see: Wigmore, supra at p. 2327
20. The PIainti1Ps disclosure ofpresumably the final version ofthe expert reportsand the Plaintifl's intention to call the authors ofthe reports as expert witnesses at trialconstitutes a waiwr ofprivilege. In J'QlICOIIWr Community College v. Phillips Barratt (1987)20 B.C.L.ll2d 289 (B.C.S.C.) where the following rationale was given in support ofthis
proposition.
So long as the expert remains in the role ofa confidentialadvisor, there are sound reasons for maintaining privilege overdocuments in his possession. Once he becomes a witness,however, his role is substantially changed. His opinions and
•
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3 (b) (ii) • - 9 -
their foundation are no longer private advice for the party whoretained him. He offers his professional opinion for theassistance of the court in its search for the truth. The witness isno longer in the camp of a partisan. He testifies in an objectiveway to assist the court in understanding scientific, technical orcomplex matters within the scope of his professional expertise.He is presented to the court as truthful, reliable, knowledgeableand qualified. It is as thought the party calling him says: "Hereis Mr. X, an expert in an area where the court needs assistance.You can rely on his opinion. It is sound. He is prepared to standby it. My friend can cross-examine him as he will. He won't getanywhere. The witness has nothing to hide."
It seems to me that in holding out the witness's opinion astrustworthy, the party calling him impliedly waives any privilegethat previously protected the expert's papers from production.He presents his evidence to the court and represents, at least atthe outset, that the evidence will withstand even the mostrigorous cross-examination. That constitUtes an implied waiverover papers in a witness's possession which are relevant to thepreparation or formulation ofthe opinions offered, as well as tohis consistency, reliability, qualifications and other matterstouching on his credibility.
21. Further support for the Defendant's position can be found in Mr. JusticeKlebuc's decision in Raina v. Riou [1994] SW.W.R. 7S2. At page 7S7, paragraph 13 Mr.Justice Klebuc states that all relevant material must be tendered as part of the practitioner'sreport and in the Defendant's respectful view the relevant material would include theexchange ofcorrespondence with the requesting solicitor.
22. The Defendant invites the Court to invoke Rule 21S(3) and review all of the"letters ofrequest- and non-disclosed expert reports when making its ruling. It is anticipatedthat the Plaintift'i solicitor will make this material available for the court's review if it isrequested. The Defendant submits that the Court should use its discretion to assist in a just,speedy and inexpensive determination ofthe suit and the reliefsought will assist in achieving
this end.
3 (b) (ii) • - 10-
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23. An Order similar to the order sought was recently granted by Madam Justice
Hunter in Bateman v. Phoenix Continental Management Inc. et al. and a true copy of her Fiat
is annexed. Relief similar to that now requested was granted by Mr. Justice Annstrong in
Turcoane v. Schaffer et al., Q.B. NO. 5708 of 1988. A true copy of that Order is annexed.
24 The Defendant further suggests that the costs of this motion should be reserved
for the trial judge.
ALL OF WHICH IS RESPECTFULLY submitted this 6th day of September,1996.
BALFOUR MOSS
~ <::PerC==s?t0~Solic.itor for'the Defendant
\)
TO:
AND TO:
LOCAL REGISTRAR
S.G. SEGAL LAW OFFICEBarristers and Soliciton1S30 London Life Place18SS Victoria AvenueRegina, Saskatchewan84P31'2Attention: S.G. Segal
3 (b) (ii) •
This document was delivered by:
BALFOUR MOSSBarristers and Solicitors700 - 2103 11th AvenueRegin, SaskatchewanS4P 401
- 11 -
)
whose address for service is: as aboveLawyer in charge of file: Phyllis L. Norrie
Reginald A. WatsonTelephone: (306) 347-8300File: 497.00.003 PLN
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3 (b) (ii)
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(3 (b) (ii) •
CANADAPROVINCE OF SASKATCHEWAN
IN THE QUEEN'S BENCHJUDICIAL CENTRE OFREGlNA
BETWEEN:
Q.B. No. 5708 of 1988.
CONSTANTIN TURCOANE and MARUANA TURCOANE,RESPONDENT
(pLAINTIFF),
- and-
WADE SCHAFFER.,APPLICANT
(DEFENDANT).-and-
REGINA SPORTS & PHYSIOTHERAPY CLINIC, GORDON PULLAR,UNIVERSITY PARK MEDICAL CLINIC, DR. MAL NATRASS,DR. ROBERT JOYCE, DR. V GOMES and DR. ALLAN ROSS
. RESPONDENTS
CANADAPROVINCE OF SASKATCHEWAN
IN THE QUEEN'S BENCHJUDICIAL CENTRE OF REGINA
BETWEEN:
MAlWANA nJRCOANE,
Q.B. No. 1956 of 1990.
RESPONDENT(pLAINTIFF).
- and-
LESLIE N. WORRALL and CLASSIC ENTERPRISES INC.,APPUCANT
(DEFENDANT).-and-
UNIVERSITY PARK MEDICAL CLINIC, DR. MAL NATRASS,Oil ROBERT JOYCE, DR. V GOMES and DR. AU-AN ROSS
RESPONDENTS
3 (b) (ii) •
CANADAPROVINCE OF SASKATCHEWAN
·2·
Q.B. No. 121 of 1991.
\
IN THE QUEEN'S BENCHJUDICIAL CENTRE OF REGINA
BETWEEN:
MARUANA TIJRCOANE,
• and-
RESPONDENT(PLAINTIFF)•
Wll..LIAM ERMEL and MARLENE STONE,
APPLICANT(DEFENDANT).
-and-
UNIVERSITY PARK MEDICAL CLINIC, DR. MAL NATRASS,DR. ROBERT JOYCE, DR. V GOMES and DR. ALLAN ROSS
RESPONDENTS
BEFORE TIlE HONOURABLEMr. Justice a.H.M. ArmstronlIN CHAMBERS
)))
THURSDAY, TIm 14TH DAY
OF MARCH, 1996.
Upon the IppliCltion ofReainaid A Watson, counsel on behalfoftheDefendants and upon~n. counsel on behalfoftile pll'ties and upon havina read thepleadings and proceedinas had and taken herein, all filed:
IT IS HEREBY ORDERED as follows:
3 (b) (ii)
(lI92692):UO
- 3 -
1. The solicitors for the Plaintiff, Constantin Turcoane, shall. forthwithproduce copies of the following documents to the Defendants' solIcitors:
166 - August 19, 1988 • Copy of letter from S.G. Segal Law Office toDr. Loguinoff
167 - August 30, 1988· Letter from Dr. G. Loguinoffto S.G. SegalLaw Office
168· September 8, 1988· Copy oftetter from S.G. Segal Law Office toDr. B. Bachynski
169· February 22, 1989· Copy of letter from S.G. Segal Law Office toDr. Loguinoff
170· March 7~ 1989· Note from Dr. Loguinoffto S.G. Segal LawOffice
171 • march 13. 1989· Copyofl~ from S.O. Segal Law Office toOrthopedic Department, Medical and Dental Building
173 • October 24. 1989· Copy of letter from S.O. Segal Law Office toDr. Loguinoff
174· November 13, 1989 - Letter from Dr. O. Loguinoffto S.O. SegalLaw Office
175 - October 3, 1991 • Copy ofletter fiom S.O. Segal Law Qffice toRegina Sports & Physiotherapy Clinic
176 - December 9, 1991- Copy ofletter fi'om S.O. Segal Law Office toDr. Lopinoff
177 - March 23, 1992· Letter from Dr. A Verdejo to S.O. Segal LawOffice
178 - November 27, 1991 - Copy ofletterfiom S.G. Segal Law Officeto Regina Sports & Physiotherapy Clinic
2. The soliciton for the Plaintiff, MarijllUl TUI'COIIle, shalt forthwithproduce copies ofthe following documents to the Defendants' soliciton:
3 (b) (ii) •
(192692):110
·4·
250· August 19, 1988 • Copy ofJetter from S.G. Segal Law Office toDr. Duguid
251 • September 9, 1988 • Letter from Dr. D. Duguid to S.G. Segal LawOffice
252· January 30. 1989· Copy of letter from S.G. Segal Law Office
253· April 12. 1989· Copy of letter from S.G. Segal Law Office to Dr.R. Joyce
254· November 23. 1989· Copy of letter from S.G. Segal Law Officeto Dr. R. Joyce
255· December 18.1989· Letter from Dr. Joyce to S.G. Segal LawOffice
259 - January 19. 1990 - Copy of letter from S.G. Segal Law Office toDr. R.Joyce
260 -January 22,1990 - Copy of letter from S.O. Segal Law Office toDr. M. Nattrass
261 - February 24, 1990· Letter from Dr. Joyce to S.O. Segal LawOffice
262 - April 2, 1990· Copy of letter from S.O. Segal Law Office to Dr.R.Joyce
263 - March IS, 1991 - Copy of letter from S.O. Segal Law Office toDr. M. Nattrass
264 - March IS, 1991 • Copy of letter from S.O. Segal Law Office toDr. R.Joyce
266 - March 21, 1991 • Letter from Dr. Joyce to S.G. Segal Law Office
267 - March 22, 1991 • Copy ofletter from S.O. Segal Law Office toDr. I.. Joyce
269· November 15,1993· Copy of letter from S.O. Segal Law Officeto Dr. I.. Joyce
3 (b) (ii) • - 5 -
)AND IT IS FURTHER HEREBY ORDERED that the following doctors and
health care institutions shall produce to Reginald A. Watson of the Balfour Moss law finn, at
this expense, copies of all radiology and imaging films, radiology reports and other health
records which are in their possession and pertain to either of Constantin Turcoane and
Marijana Turcoane:
(a) Gordon Pullar(b) Regina Sports & Physiotherapy Clinic(c) Dr. V. Gomes(d) Dr. Mal Nattrass(e) Dr. Robert Joyce(f) University Park Medical Clinic
ISSUED AT Regina, Saskatchewan this 14th day of March, 1996.
. G. WALKER: AlOY LOCAL
LOCAL REGISTRAR
('92692):1lEO
3 (b) (ii) •
CANADAPROVINCE OF SASKATCHEWAN
)) Q.B. No. 2322 of A.D. 1993
. IN THE COURT OF QUEEN'S BENCHJUDICIAL CENTRE OF REGINA
BETWEEN:
RHONDA LEE KAPELL,PLAINTIFF
- and -
KAnn.EEN L. ABEL.DEFENDANT
BEFORE THE HONORABLEMadam Justice C.L. DawsonIN CHAMBERS
)))
FRIDAY, THE 13TH DAY OF
SEPTEMBER, 1996.
ORDER
Upon the application of Reginald A. Watson, counsel on behalf of the
Defendants and upon hearing Reginald A. Watson on behalfof the Defendant and upon
hearing Sid Segal on behalf of the Plaintiffand having read the pleadings and proceedings
had and taken herein, all filed:
IT IS HEREBY ORDERED:
1. That the Plaintiff shall produce to the Defendant's solicitors, copies ofall communications not previously so produced that have passed between hersolicitor and the following persons:
(a) Dr. J.G. Michel;(b) Gold Square Physical Therapy Clinic;(c) Dr. E.W. Gherasim;(d) Dr. S. Thackeray;(e) Dr. R.D. ParkerlHealthserv;(f) Stewart & Stewart Physiotherapy Clinic;(g) Advanced Therapeutic Massage Clinic;(h) Dr. S. Barber;(i) Dr. M. Fink
(tit I086'):REO
)
)
)
3 (b) (ii) •
(#II086'):REO
·2·
including copies of all correspondence, enclosures, draft reports, amendedreports and final reports and including the documents listed as numbers 226,227,228,229,230,232,234,237,238,240,241,243,245 and 246 in thePlaintiff's Amended Statement as to Documents.
2. That the Plaintiff shall produce such documents to the Defendant'ssolicitors on or before September 16, 1996.
ISSUED at Regina, Saskatchewan this 13th day of September, 1996.
. ,. . ..
LOCAL REGISTRAR
3 (b) (ii) •Professional ConductRUlings
(A. Kirsten Logan)
The mandate of the EthicsCommittee is to make rUlings onquestions of professional ethics forthe guidance of the profession. Therulings given by the EthicsCommittee relate to the ethics ofparticular situations and are notdeterminations of the legal issueswhich arise from those situations.
Advertising· Coupons
The Ethics Committee has ruledthat providing coupons for a freeone-half hour initial consultation asopposed to coupons for specificservices or price reductions is nota violation of the marketing rule.
Changing Experts' Reports
Facts:
Lawyer X acted for the plaintiff in apersonal injury action. Lawyer Yacted for the defendant. A medicalreport was requested by Lawyer Xfrom the plaintiff's doctor. In thereport that was received, the doctorstated inter alia, "In conclusion,one must emphasize that thesymptoms that [the plaintiff] isexperiencing are strictly subjectiveand that clinically, I have found verylittle with [the plaintiff) at the time ofexamination." Lawyer X wrote tothe doctor requesting that heremove that paragraph on thebasis that it "would not be helpful toour client in terms of SGI'sassessment of [the plaintiff's] claimand as such we would appreciate itif you could simply delete thatparagraph from your report."
At trial, Lawyer X raised with thewitness the issue of the reporthaving been changed. The witnesstestified that he had changed hisreport at X's request.
Lawyer Y retained an expert to givea report regarding the plaintiff's
Claim for iOSS of Income. The reponstated that the plaintiff did notsuffer a loss of income but thatfluctuations in income were due tohis choice not to accept full-timeemployment at one of his clients.The report then said, uThisdecision was not a result of theaccident." Lawyer Y asked theexpert to remove that sentenceand the expert did so.
Lawyer Y complained aboutLawyer X's conduct. Lawyer Xresponded and indicated that hisconduct was no different than thatof Lawyer Y.
Ruling:
The Committee reviewed thedecision in the VancouverCommunity College case, 29Construction Law Reports, 268 atpage 285 (B.C.S.C.) which statesthat it is not improper for an expertto edit or rewrite reports, however,it is "Qf the utmost importance inboth the rewriting and consultationprocesses referred to that theexpert's independence, objectivityand integrity not be compromised".Counsel may advise or commenton "statements concerning factualhypothesis, their evidentiaryfoundation, the definition ofissues...". It is the opinion of theEthics Committee that Lawyer X'srequest to the doctor to change themedical report went to thesubstance of the doctor's opinionand therefore was improper. TheCommittee would have directedthat the matter be referred toDiscipline, however, did not do sobecause Lawyer X had raised thematter at trial. With regard toLawyer V's request to the expert tochange the report, the Committeewas of the opinion that thestatement was one that the witnesswas not entitled to make nor was itkey to the report and thereforethere was nothing wrong with thesuggested change.
')4. Who Should the Expert Be?
(e) Balance and Scope
It is often comforting to retain an expert who has testified "for both sides". It is alsosomewhat re-assuring to retain experts that do not always give you the opinion that you arelooking for. We should expect to receive unfavorable opinions on occasion as we all act forthe party likely to lose on occasion.
The expert's reputation among his or her peers and a review of the expert witness's transcriptsfrom earlier proceedings are useful tools in the selection process.
The issue and scope of a witness's expertise should be discussed and delineated at the earliestpossible opportunity. Counsel must exercise independent judgment and carefully consider theexpert's qualifications when determining the scope of the testimony to be presented. Thisdecision is of extreme importance as you can be left with a serious hole in your case if thescope of the expert's testimony is curtailed in the qualifications phase of the examination. Thequestion of scope often arises when dealing with massage therapist, physiotherapists andchiropractors. It is common place for lawyers to request these types of individuals to provideevidence with respect to causation, prognosis, impairment or disability. Some of these topicsmay be beyond the witnesses expertise.
) (I) Lawyer Referrals to Treating Physicians
)
Lawyers should not be in the business of providing medical advice or treatment to clients. Iam personally of the view that it is improper for a lawyer to manage the medical care of aclient. Clients should be at liberty to seek out their own treating physicians and the physiciansshould make appropriate referrals. The intervention of a lawyer into the man~gement of aclient's medical affairs often leads to embarrassment for the lawyer and prejudice for theclient.
5. When Should the Expert be Retained?
(a) Sooner or Later?
)
We have to be able to select and use expert witnesses effectively if we are going to practise inthe courts.
Expert testimony is required to assist the trier of fact in understanding technical and complexmatters that are beyond their ordinary experience. Not all cases require experts.
In appropriate cases, it is a good idea to hire the expert or at least a consultant in the earlyphase of the action. We should not assume that we know what facts are important and theretention of an expert or consultant early in the process will often assist in the investigationand securing of the evidence in the discovery process.
In professional negligence case you will have to call an expert to establish the standard ofcare.
In some US jurisdictions there is a requirement to file a declaration of merits from aprofessional in the field which establishes a prima facie breach of the standard of care inprofessional negligence actions. Regardless of whether or not this is a requirement, there canbe little doubt that it is a good idea. I would venture to say that in most medical malpracticecases, the Plaintiffs solicitors do not obtain an opinion with respect to the standard of careuntil after the Examinations for Discovery or the Pre-Trial Conference. This often results inmuch wasted time, effort and money on everyone's part.
In cases where accident reconstructionists are called to give :evidence, the accidentreconstructionist who has had the opportunity to inspect the damaged vehicles prior to theirdestruction and to attend at the scene of the accident at the time of or shortly after the accidentis placed in a superior position to one who has not had this opportunity. Likewise, a medicalexpert may have an advantage in actually examining the patient as opposed to rendering anopinion upon hypothetical facts related to a hypothetical patient.
6. Foundation
(b) Facts - How to Provide Them
In most cases, an expert's opinion is premised upon hypothetical facts. The facts upon whichthe opinion is premised must be in evidence for the opinion to be of any value. If the factsupon which an opinion is based are not in evidence, the opinion evidence should beconsidered inadmissible, as it is moot and of no probative value.
Where facts are disputed, the opinion should be based upon a hypothetical question thatassumes hypothetical facts to be true.
In a case where an expert witness wears two hats, such a treating physician, the expert cangive evidence based upon first hand knowledge or based upon a combination of the first handknowledge and a hypothetical question. The facts contained within the hypothetical questionwill have to be established through a witness other than the physician. It is difficult forlawyers to know which facts are important for the purposes of the expert witness and it is alsodifficult to know the form in which information should be provided to the expert. Is it properto provide a prospective expert with a transcript from an Examination for Discovery?
In medical situations, the safest method of providing information to a treating physician is tohave the treating physician obtain the patient history from the patient as opposed to thelawyer. Lawyers should be weary of providing physicians with patient histories that areinaccurate or which 'overstate the facts: see: Turcoane v. Schaffir et at. an unreporteddecision of Mr. Justice Armstrong dated August 22, 1996, Judicial Centre of Regina, pages24 to 26 annexed.
If the expert report recites hearsay solely for the purpose of reiterating the Plaintiffs positionand if the hearsay cited is not necessary for the opinion, the hearsay should be deleted fromthe report.
\
6 (b) •
Q.B.No. 5708
IN THE QUEEN'S BENCH
JUDICIAL CENTRE OF REGINA
BETWEEN:
CONSTANTIN TURCOANE and MARIJANA TURCOANE
- and-
WADE SCHAFFER
AND
Q.B.No. 1956
IN mE QUEEN'S BENCH
JUDICIAL CENTRE OF REGINA
BETWEEN:
MARDANA TURCOANE
- and-
LESLIE N. WORRALL and CLASSIC ENTERPRISES INC.
AND
A.D. 1988J.C. R.
PLAINTIFFS
DEFENDANT
A.D. 1990J.C. R.
PLAINTIFF
DEFENDANTS
6 (b) •
- 24 -
') repositioning resulted in the upper and lower teeth not meeting properly (or had they
never met properly?). So teeth had to be moved. She was fitted with braces which,
as it turned out, she had to wear for three years all but four months and over which
period she attended 80 times at Dr. Nattrass's office for checking and adjustments.
When this was over and the braces removed she was given a new splint which she
was told to wear overnight, every night, for life. In all, she had 89 visits to Dr.
Nattrass's office.
There was no evidence called to contradict the diagnosis of TMJ although
the whole idea of there being such a thing was questioned. Neither was there any
questioning of the treatment such, for example, as whether the problem might not
have corrected itself if given a little time. The plaintiff, in her testimony, seemed
to suggest that there was alternative treatment about Which she had learned from Dr.
Gherasim sometime after treatment began but for which she would have to go
someplace else in Saskatchewan and had not been able to find the time. This was not
gone into.
The question then is what caused the TMJ? Dr. Nattrass had given the
opinion that it was caused by the cumulative effect of the three accidents-May 4,
1988; May 17, 1989, and January 12, 1990. However, there was nothing in Dr.
Nattrass's notes to indicate that he even knew the plaintiff had. anything but one
accident and that being the May 4, 1988, accident-the only one about which the *plaintiff told him apparently before Mr. Segal, counsel for the plaintiff, in a three and
one-half page letter to Dr. Nattrass under date January 22, 1990, told Dr. Nattrass of
the three accidents. Mr. segal went into considerable detail reciting (with much
exaggeration and some absolute errors) what was claimed to be injuries suffered and
difficulties encountered as a result of these accidents. Then in the same letter he said:
)
6 (b) •
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If possible we would request that you include. yourprofessional opinion on which (or perhaps all) of thesubsequent .MVA's precipitated the TMJ difficulties. Inaddition, please include a summary of your treatment planincluding its duration and anticipated cost. If causationiflsic] clearly MVA-related we should be able to get S.G.I.to cover your costs directly.
As stated, Dr. Nattrass found cause in all three accidents.
Dr. Nattrass, in cross-examination, agreed that he really did not know
which accident caused the TMJ. And he cannot really say if any of them or all of
them caused the TMJ. He can only say that it was trauma much more likely than not.
Counsel seemed concerned to show whether Dr. Nattrass learned of the
three·accidents fro~ the plaintiff or Mr. Segal. If the plaintiff told Dr. Nattrass of
the three accidents, she did not on her first visit which was, as mentioned, just three
days after the accident which had occurred on January 12, 1990. Regardless of what
else it may indicate it has to say something about how serious she, at the time,
thought the accident of January 12, 1990, really was.
Much more important to this case than whether Mr. Segal or the plaintiff,
or both, told Dr. Nattrass about the three accidents is what neither, and more
particularly Mr. Segal, told Dr. Nattrass. Dr. Nattrass was not told about the first
four motor vehicle accidents, particularly the two in January, 1988, that the plaintiff
had experienced.· Nor was Dr. Nattrass told about the fact that the plaintiff had
always had a bite problem and back in 1983 had been told that to correct the bite
problem it would be necessary to break her jaw and reset it. This she never did have
done.
.....
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) The fact that Dr. Nattrass gave his opinion that the plaintiffs TMJ
problem was caused by the cumulative effect of three accidents can be taken to mean,
I trust, that a cause of TMJ can be the result of cumulative effects. Accordingly, I
conclude that the TMJ is the result not of just the three accidents but of the plaintiff
naturally having an incorrect bite, of all seven accidents that she experienced, and a
mixture of other things such as clenching and grinding of her teeth which went on at
one time. In cross-examination as to whether she had been hit in the face with a
baseball in 1990, she said she could not remember, that she had probably been hit
many times. By the time of the accident of May 4, 1988, the plaintiffs TMJ situation
was analogous to a "crumbling skull" with the cause accumulating. The plaintiff said
on Dr. Nattrass's questionnaire that she was experiencing "clicking and popping"
occasionally before the January 12, 1990, accid~nt. Her condition was not
asymptomatic. The problem is to quantify the responsibility among the many causes i
involved.
There is no way to rationally determine the contribution of the first
accident as compared to the second and so on, nor of the factors other than
automobile accidents. It is necessary to be fairly arbitrary. But I think it reasonable
... to attribute 75% of the cause of the TMJ to factors other than the three accidents in
question. The May 4, 1988, accident is responsible for 15% and the other two
accidents 5% each. :¥'.
Dr. Joyce said that over the years he treated the plaintiff she, from time
to time, got temporary relief; from time to time there was improvement noted and
then from time to time she would revert to previous problems. Something would
exacerbate things. The course of treatment confirms this scenario. Then he was
questioned about an examination he had done of the plaintiff on November 22, 1993.
)/
7. Pre-Trial
(b) Preparation of Lawyer
Apart from serving the requisite Rule 284C and 284D Notices before the Pre-TrialConference, the party proposing to tender the expert witness should take the time tounderstand the report in its entirety. In some cases a glossary containing definitions oftechnical terms is of assistance to all concerned.
You should also take the time to understand the reports that are filed against you at this stageof the action. If you need assistance to understand the reports, you should get it before thePre-Trial Conference.
You may also wish to consider the issue of the admissibility of the expert report at this stageof the proceeding. The expert testimony should be excluded if it is not necessary and theadmissibility of hearsay portions of a report should be carefully considered.
In R. v. Mohan, [1994] 2 S.C.R. 9 the Supreme Court of Canada explained that evidencewhich is logically irrelevant may be excluded if its probative value is overborne by itsprejudicial effect, if it involves an inordinate amount of time which is not commensurate withits value, or if it is misleading in the sense that its effect on the trier of fact, particularly, is outof proportion to it reliability. The Supreme Court went on to say that "there is danger thatexpert evidence will be misused and will distort rather than facilitate the fact finding process",Ibid. at p. 21.
If you understand the experts' reports and the admissibility issues, you will be weB on the wayto making an effective presentation at trial.
)8. Qualifications at Trial
(b) Jury
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In a jury trial it is of utmost importance that you take the time to show the jury the extent ofthe qualifications of your expert witness in the particular field in which he or she will betendered to give evidence. The scope of the testimony which you intend to elicit uponexamination-in-chief should determine the focus of the qualifications that you need to lead inevidence. Counsel should take the time to have the expert explain what the relevantqualifications mean. Counsel should engage the witness and appear interested in thequalifications phase of the examination. It is probably a bad idea to simply have your witnessrecite his or her qualifications from start to finish without interruption. The expert should notappear rehearsed.
One should be weary of opposing counsel's consent to admit an expert witness'squalifications. Such admissions may be made in order to gain a tactical advantage by havingthe examining counsel move on with. the substance of the expert's testimony.
The exact scope of the area of expertise should be specifically identified after theexamination-in-chief of qualifications and this practice will assist in assuring that the crossexamination on qualifications is focused upon the specific area in which the expert istendered.
9. Foundation at Trial
(b) Medical Reports
Section 32 of The Saskatchewan Evidence Act provides as follows:
32(1) Any professional report purporting to be signed by a dulyqualified medical or chiropractic practitioner or dental surgeon;licensed to practise in any part of Canada is, with leave of the judge orcourt, admissible in evidence in any action without proof of hissignature or qualifications or ofhis being licensed.
(2) Where a duly qualified medical or chiropractic practitioner ordental surgeon, has been required to give evidence, viva voce, in anaction and the judge or court is of opinion that the evidence could havebeen produced as effectively by way of a professional report in writing,the judge or court may order the party that required the attendance ofthe medical or chiropractic practitioner or dental surgeon, as the casemay be, to pay as costs therefor such sum as he or it deemsappropriate.
The case most often referred to in respect of section 32 and the tendering of medical reports isHaines v. Riou, [1994] 5 W.W.R. 753 (Sask. Q.B.). Section 32 medical reports require aRule 284C Notice to be served. The requirements of section 32 and Rule 284C and Rule284D should be strictly complied with to avoid problems at trial.
The admissibility of the contents of medical reports should not be taken for granted. Thescope of the contents of a medical report is no greater than the scope of the testimony thatcould be given by the report's author in evidence at trial. Medical reports that have beenwritten by or substantially crafted by lawyers are reports that should be of great concern. Youshould be weary of the method and manner in which the report has been obtained.
Medical reports have no personality and if they are filed by one party and if the author iscross-examined by the other, a tactical advantage may accrue to one side or the other.
The failure of counsel to keep the contents of the report within admissible bounds mayoperate to the prejudice of the party that wishes to rely upon the report if the author is notavailable to testify.
)10. Hypothetical Question
(c) Failure to use a Hypothetical and Should Have
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Hypothetical questions should be used far more than they are.
Ten or fifteen years ago hypothetical questions were commonly used whenever expertwitnesses were called to testify, but there has been an erosion in the usage of hypotheticalquestions over the last several years. It appears that many lawyers have become careless intheir approach to expert evidence.
If all of the facts of a particular case are beyond dispute or within the personal knowledge ofthe expert witness, a hypothetical question may not be required but the factual basis of theopinion should be clearly stated. A hypothetical question should be used in all cases wherethe facts are unclear or in dispute or where the factual basis of the opinion is in question inanyway.
The use of a hypothetical question also serves to focus the attention of the jury upon the factsof the case in the way that the party asking the hypothetical question would like to see thefacts established. Some counsel tend to use a hypothetical question as a form of summation.
The failure to use a hypothetical question in the face of conflicting evidence and/or the lack ofpersonal knowledge by the expert of all pertinent facts will render the expert witnessestestimony useless.
If the expert witness has relied upon information that is not before the Court, some if not allof his or her testimony may be rendered inadmissible by virtue of the fact that expertwitnesses could not possibly render an honest opinion based solely upon the evidence before
.the Court.
A partial transcript depicting this situation is annexed. Do not let this happen to you.
10 (c) •
68X-Exam of DR. FLOTREby MR. WATSON
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No, it isn't.
Is it even a topic? Did you do any specific
directed reads on that that you can remember?
Yes. There was a -- there was a module on
rehabilitation, which dealt with musculoskeletal
problems.
And this would be just one segment then of one
module?
Yes. Well, it was -- yes.
You're not an accident reconstructionist?
No.
You don't have any training in collision dynamics?
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Do you understand that -- in this particular case
you received information from various sources?
Yes.
Some of the information that you received was
directly from the Plaintiff?
Yes.
And is the totality of the information that you've
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and 11 of your report? 22
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No.
You have other sUbjective information that you
Yes. Page five and the top of page six are
sUbjective information.
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10 (c) •
69X-Exam of DR. FLOTREby MR. WATSON
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Where am I going, page five?
Page five and the top of page six. "History of the
injury and current status."
Okay. Is that the totality of that, that you
received from her?
Well, if by totality you mean did I put every word
and every phrase down, no.
That's as much as --
It's a history that basically summarizes the
information that she gave me.
Okay. Are there notes then in addition to this?
I didn't keep my notes for it, no.
So this is your only record?
This is my only record.
Okay. Now, you also received information from third
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That's what I understand, yes.
Now, you will be called upon now, I want to talk
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understand it, and correct me if I am wrong, because 21
I probably will be, but the standard routine is that 22
we take a thorough history followed by a physical 23
examination, then testing, and then arrive at a 24
diagnosis? 25\
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70X-Exam of DR. FLOTREby MR. WATSON
Q Is that the standard methodology?
A Yes.
Q You would be in the best position to render a
diagnosis if you had the fullest possible history?
A Yes.
Q You have not reviewed the totality of the medical
information that's available, have you, on this
case?
A I reviewed only what was sent to me, and if there
was clarification required, which I am not sure
there was in this case, I would ask for others.
Q So you have collected information from many sources,
including the Plaintiff, and you collate all of that
together with your physical examination and testing
to arrive at your diagnosis?
A Yes.
Q You will be asked today to embark upon a mission
that I will suggest to you that you are not in a
position to complete, and I'd like to discuss that
with you. You will be asked to sever from your
memory all of the information received from all of
the other physicians that is not before the court,
and proceeding only with the information that you
received from Charlotte Bateman in collating that
with the 'results of your physical examination and
test results to arrive at a diagnosis. I am
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10 (c) •
71X-Exam of DR. FLOTREby MR. WATSON
suggesting to you, firstly, that that is an improper 1
way of proceeding compared to the way you usually do 2
things; is that correct? 3
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Yes.
And I am suggesting to you further that this is
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reviewed all of that information it's impossible for 7
you in your mind to completely disregard it and act 8
only on a portion, that portion being what is on 9
page five and six and page ten of your report with 10
respect to the information you received from her. 11
Would you agree with me? I suggest to you it's an 12\I.
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exercise in futility, because you have been
influenced; isn't that correct?
I am unsure that that information on the other pages
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deal with that I can't tell you. 17
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You're in substantial doubt, because you're a human
being, correct?
Yes.
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MR. WATSON: I have no further questions. 21
THE COURT: Mr. how do you propose 22
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MR.
to have this witness qualified to testify?
As I indicated, My Lady, an
expert in the field of medicine, and in
particular occupational medicine and disability
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evaluating, as he's outline in the field. 1
MR. WATSON:
THE COURT:
Number one
Leading to an opinion, I take
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it, with respect to the Plaintiff's state on
disability evaluation in particular you're
going to be asking for his opinion?
Yes
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MR. WATSON: Number one, My Lady, my -- there 8
is no disclosure even of an impairment rating 9
in this case, which is a precondition to 10
disability, so that.would put it beyond the 11
scope of the Rule 284(d) notice. I would also 12
" •••,~t, •• suggest to the Court that the Court in the : )
process has to. be fair to the witness, and a 14
witness should not be called upon to testify 15
contrary to his methodology and contrary to his 16
good conscience. That is our position. This 17
is an exercise in futility. 18
THE COURT: Any further submission you wish 19
MR.
to make in that regard, Mr. Jaques?
Well, My Lady, I am confident
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that the witness will, if he has any doubt on 22
the answer to a question of his own ability to 23
answer it based on the information he'S allowed 24
to use, surely he'll mention that, and that 25
would become clear in his answer. He's not
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about to give an answer that he's not 1
comfortable with making, and I think we should 2
approach it during his testimony, and if there 3
are difficulties, well, then we'll deal with 4
them then. 5
MR. WATSON: My Lady, I'd like to address the 6
Court in the absence of the witness and the
jury on this one.
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THE COURT: Members of the Jury, I am going 9
to excuse you for a few moments. In fact, just 10
a moment. I am wondering if we shouldn't
adjourn them for lunch.
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THE COURT:
lunch I think.
MR. WATSON:
THE COURT:
Pardon me?
I am going to adjourn them for
Sure.
I am going to let the Jury
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members go for lunch. 1:30? Actually I am 18
going to let you go for lunch as well witness, 19
if you would return at 1:30, please. 20
(JURY AND WITNESS EXCUSED) 21
THE COURT:
MR. WATSON:
Mr. Watson?
The question is should the Court
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allow the lamb to' be led to slaughter when in 24
his own mind and on his own evidence he doesn't 25
think he can do it. I submit not. My friend
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didn't re-examine him on that. I mean, his
answer was clear and supports -- now we have
evidence for our previous arguments. Well, I
don't know what kind of a charge you would give
on this if you did allow him to testify. You
have a witness that doesn't think he can
testify.
What is the threshold, I have never really
thought about it, but what is the threshold to
allow the opinion evidence when the person
giving the opinion evidence doesn't even think
that he's in a position to give it because the
foundation is not there. Only half the
foundation is there and the house falls down.
A situation I haven't run into before
THE COURT: Nor me. Mr.
MR. Well, My Lady, I wasn't
expecting the witness to say that he would have
substantial doubt, and yet I think the same
observation is true, that the witness can be
relied upon plainly to express if he has
doubt. He has done so already, and he will be
able to do so as he testifies. If he has
difficulty with the question, he'll say so.
MR. WATSON: But now we're in a position
where we have to talk about the weight of his
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opinion.
THE COURT: Just a minute, Mr. Watson, let
Mr. finish.
MR. That was -- I was finished.
THE COURT: Okay.
MR. WATSON: Does the witness say I will
preface every answer with the weight that I
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give to this next statement? It's ludicrous. 8
Either he testifies as to what his opinion is 9
or he doesn't. 10
not going to be allowed to give opinion
THE COURT:
evidence, Mr.
Based on what I have heard, he's
It is unfair to put
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before a jury evidence which purports to be out 14
of the mouth of an expert which, based on the 15
expert's own admission, is going to be of 16
little to no probative value, and in this case 17
the prejudice, in fact, would out weigh any 18
possible probative value that could be given to 19
his evidence in terms of an opinion. 20
Now, as to her attendance at his office 21
and he performed certain tests, and as a result 22
of his test he found certain things, he will be 23
able to testify to that limited extent, but no 24
opinions will flow from that. So it will be up 25
to you if you want to call him. He will not be
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10 (c) •
76
qualified to give an opinion, all he can do
other than based on the actual testing that he
performed in his office.
MR. So he will be able to give
opinions based on the tests that he
administered?
THE COURT: He will be able to say what the
results of those tests are.
MR. And how they should be
interpreted?
THE COURT: Well, I understood that he did
certain tests that said she can walk, she can
carry, she can push?
MR. He also did a number of other
tests. He describes the Work Activity
Assessment, which is sensitive to' a lingering
magnification. He did the Maximum Voluntary
Effort Test, which is sensitive to the same
things, get your conclusions from those tests.
He did the --
THE COURT: The only problem is is all of
that going to be related to the medical history
he understood? The only thing he can really
testify about is the actual physi:cal
examination that he carried out.
Why would that be related to the
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medical history, My Lady? I believe it's 1
actually a work activity assessment, a card 2
test, which is analyzed by computer, and it had 3
zero validity errors, and The Maximum Voluntary 4
Effort Test is a test, as I understand it, 5
which involves the repetition, surreptitious 6
repetition of certain tasks and the graphing of 7
those tasks to conclude two things. Number one 8
is does it involve maximum effort, and number 9
two, is it a conscious or unconscious 10
restriction, if there is a restriction, and 11
he'll be expected to say that in the first one, 12
the work activity assessment, there were no 13
validity errors and in the second one that 14
there was some sign of a symptom magnification, 15
but not of a conscious symptom magnification, 16
and that that leads directly into his 17
conclusions with respect to chronic pain 18
syndrome. 19
THE COURT: That's right. Which he can't 20
give. That's exactly what it's based on, you 21
see, and he's not qualified to give that 22
opinion with respect to chronic pain syndrome. 23
MR. WATSON: All he can say is I gave a test, 24
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here's the result, and he can't interpret the 25
results. 26
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THE COURT:
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He can't interpret. He can 1
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simply these are the tests I gave, this is the 2
physical examination and these are the test 3
results, and that would be the extent of the 4
evidence he can give if you wish to call him. 5
This Court has a duty to professional witnesses 6
as well, we cannot allow them to be abused in 7
the stand once he's made an admission that he 8
really -- he really wouldn't be able to carry 9
out the task that was going to be asked of 10
him. It's not fair to him in his professional 11
capacity. 12
So if you wish to call him, he can report - ~)
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on her attendance at his office, the physical 14
testing that he did, the physical examination, 15
and his -- what the results of those were, and 16
he will not be allowed to go on and give 17
interpretive data or diagnostic evidence or 18
opinion evidence. All right.
We'll adjourn to 1:30.
(COURT ADJOURNED AT 12:05 P.M.)
(COURT RECONVENED AT 1:30 P.M.)
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MR.
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are you ready for 23
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12. Effective Cross-examination of Expert Witnesses
As with any cross-examination, the key to success is preparation and a thorough knowledge ofthe facts. The cross-examination of an expert is sometimes an onerous and intimidating task,although it need not be. The cross-examination of an expert can be a most pleasurableexperience if you take the time to develop and execute a cross-examination strategy.
If you intend to be effective in cross-examination it is absolutely imperative that you gain athorough understanding of the substance of the testimony to be tendered. You will have tolearn alot about a small area of a new subject with which you are likely unfamiliar. Iencourage you to rise to the challenge.
The following possible strategies should be considered when preparing the crossexamination:
1. Is the expert's opinion based upon facts that are in evidence?
2. If there are two versions of the facts in evidence and the second versionof the facts will lead to an expert opinion that is favorable to your case,should it be elicited on cross-examination or should you call your ownexpert?
3. Is the expert's opinion consistent with the expert's prior testimony in thisor other cases?
4. Is the expert's testimony consistent with the literature and leading textsin the area? .
5. Is the expert biased?
6. Is the opinion offered beyond the scope of the established expertise?
7. How much money is the expert being paid for his testimony?
8. How regularly does the solicitor calling the expert retain that expert'sservices? If the answer is frequently you may question the expert'sindependence.
9. Has the expert been less than candid In rendering his opinIOn byignoring crucial known facts?
10. Was the expert unduly influenced by the method and manner in whichthe foundation facts were presented to him?
(#112563):REG
11. Is the expert flexible in his or her opinion when the hypothetical factschange?
All of these questions sho~ld come to mind when preparing for cross-examination.
Strategies for cross-examination will vary between expert witnesses.
At the very least, the cross-examination of expert witnesses will provide you with aninteresting challenge.
ALL OF WHICH IS RESPECTFULLY submitted to my peers this 20th dayof September, 1996.
Reginald A. WatsonBalfour Moss(Regina Office)
(#112563):REG
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· . --... I
Question 1 - you want ot sue the Town of La Loche in dal~ges
for the broken leg ... limitation?
!h~ Northern Municipa11ties Act - s. 267.1(1)(a) - one yearana you have to serve the Statement of Claim within that oneyear.
- and per 267.1(1)(b), youhave to give written notice of claim and injury to mayor orclerk within 30 days of date of occurrence.
Question 2 - you screwed up ... are them saving provisions?
Yes .. section 267.1(2) (a) if you can convince trial judge thatthere is reasonable excuse for failure to give notice and theTown in not prejudiced in its defence (but you'll probablylose the case anyway because 113(10) relieves. town unlessthere is "gross negl igence" )
Question 3 - A judge determines under section 100.02(1)(c)that "Fluffy" is a dangerous dog and under 100.02(7) that ithas to be destroyed. Joan comes to see you. How long toappeal order?
100.02(11) - 7 days, or Fluffy goes to doggie heaven
Question 4 - it has been determmined that Buffalo Narrows hadthe duty to maintain the road you bUddy was on when he slidthrough the guard rail; how long to sue?
s. 113(6) (a) gives you three months to issue and serve theclaim and 113(6)(b) says you have to give notice byregistered mail to the mayor or clerk within 7 days of thehappening of the injury... 113(7) contains saving provisionssimilar to 267.1 ... but note you have a tough case for anumber of reasons, among which:1. can't do a thing even if the guard rail was incrediblyflimsy [113 (1. 1]2. better establish that your broken leg got a lot worse dueto the slide down the bank [113(4)J3. better establish that the town knew or should have knownof the state of disrepair [113(3)]
As a general note, I think it probably goes beyond the scopeof the seminar to get into issues of causation re:the rolldown the embankment (bad guardrail or pothole) but I leave itto the Purveyor of Perfect Knowledge (aka the host) to decide.
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Lisbility issues are not dealt with here; a series of shortsnappers on whom to sue:
Question 1 - How long to sue the City?
The Urban Municipality Act, 1984 gives one year to issue andserve the Statement of Claim - s. 314(1) (a) ... and the noticerequirement is 14 days per s. 314(1) (b) with savingprovisions in 314(2).
Question 2 - How long to sue Joe Duffer ?
The Limitation Qf Actions Act give you two years for injuryto the person caused through negligence - s. 3(1) (d) (i)
Question 3 - How long to sue the dentist?
The Dental Profession Act, 1978 gives you one year from dateof termination of services in a action based on malpracticeor negligence - s. 57
Question 4 - How long to sue the hospital in negligence?
,The Hospital Standards Act gives you three months from thedate the damages are sustained - s. 15
If you miss this, you can, within one year and upon sevendays notice, ask a judge for an extension - s. 15
Question 5 - How long to sue the hospital for loss of yourjob?
See nu~er 4 above (thanks to Tom Schonhoffer)
Question 0 - How long to sue the doctor?
The Medical Profession Act, 1981 gives you two years from thedate services terminated - s. 72(And if you want to argue that the technicians screwed up theX-rays, you have 12 months from the date of cessation ofservice to sue a licensed medical radiation technologist inmalpractice or negligence - s. 25, The Medical RadiationTechnologists Act. )
Question 7 - how long to sue the opthamologist ... and whatAct?Not The Optometry Act .. an optometrist prescribes correctivelenses.Not the Ophthalmic Dispensers Act ... that Act deals withpeople grinding the lenses.Section 2(j) of the latter Act defines an opthamologist asone who is lkegally qualified under The Medical ProfessionAct, and recognized by the College of Physicians and Surgeonsas a specialist in opthamology. So see question 5 above.
Question 8 - Don't forget to sue the lawyer (who knew allthese limitation periods, but left all the issued Statementsof Claim in his file and forgot all about serving any ofthem... he was getting ready to go on a holiday)
Tom says six years under_The Limitation of Actions Actresidual catch-all phrase [so 3(1) (j]
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question 1 - the owner of the land wants to cancel theAgreement for Salei limitation?
The Limitation of Actions Act, s. 13 - 10 years
Question 2 - the contractor wants to start an action toenforce the owner's trust for the projecti limitation?
The Builder's Lien Act, s. 19(1)(b) - one year fromcompletion or abandonment of project
Question 3 - there are, of course, a number of lienholders;1 imitation?
The Builder's Lien Act - s. 55(1) says it expires if it hasnot been set down for trial withih two years of the date theaction was commenced.
Question 4 - The bank decides to apply to the court for anorder compelling Bud Black to pay back the monies he tookilimitation?
The Business Corporations Act - s. 36(5) gives the creditorstwo years from the date of the act complained of
Question 5 - if you can establish fraud, does that extend anytime limitations?
The Limitation of Actions Act s. 4 says that that cause ofaction, in cases of fraud, arises when the fraud was firstknown or discovered ... so probably dosen't apply.
Question 6 - Suppose the contractor left an abandonedrefrigerator with the door still on it at the work site andsome kid crawled in and suffered brain damage when the doorslammed shut on him... how long to sue?
The Limitation of Actions Act s. 6 extends the running oftime for an infant until he reaches majority, or if there isbrain damamge, as long as he is unable to manage his affairs(assuming no personal guardian or propert::y guardian isappointed)
The Abandoned Refigerators Act is repealed ... probably sue innegligence and use 3'(1) (d) The Limitation of Actions Act fortwo year limitation period, subject to section 4.
Question 7 - O.K.... you are going to sue the accountant.How long do you have .. and what Act?
The Chartered Accountants and The Certified Chartered.Accountants Act are both repealed and replaced by ~Chartered Accountants Act. 1986 ... who knows what the formertwo Acts said; the new Act is silent. Therefore, probably gounder the residual 3(1)(j) in The Limitations of ~ctions Act(s.3(1)(j) - 6 years]