Legal Update: Recent NS Supreme Court Decision - It's (Almost) All About The Experts
December 19, 2013
By Ian Dunbar, at McInnes Cooper
A recent NS Supreme Court ruling on four pre-trial motions in the context of a personal injury claim offers litigants practical guidance on using expert evidence – and the minor cap decision – at trial:
- You Can Examine Your Own Expert. For the first time, the Court confirmed that if opposing counsel asks for your expert for cross-examination by the deadline in the NS Civil Procedure Rules (the “finish date”), you can conduct a direct examination of your expert.
- If It Looks Like an Expert Report, and Sounds Like an Expert’s Report … NS courts will take a hard look at the evidence a party tries to offer as a “treating physician’s narrative” and will “strictly construe” the Rule 55.14 criteria for them to avoid “circumventing” the expert opinion rules.
- All Health Professionals Are Not “Physicians” – At Least Not Under Rule 55. Only licensed medical doctors are “physicians” for the purposes of “treating physician’s narratives” under Rule 55.14 – registered psychologists are not.
- And … Defendants Likely Have to Wait To Trial for a Minor Cap Decision. NS courts will not sever the issue of whether a plaintiff suffered a “minor injury” subject to the cap for a pre-trial determination without compelling reasons to do so – at least not in a jury trial.
In Russell v. Goswell, Ms. Russell sued Mr. Goswell claiming she suffered personal injuries as a result of a 2005 car accident. There is a jury trial scheduled to start in March 2014. The parties asked the NS Supreme Court to decide four issues before the trial. On November 29, 2013 the Court gave its decision on the issues – offering guidance to NS litigants on expert, experts, experts … and severance of the minor cap decision.
You Can Examine Your Own Expert. Mr. Goswell’s counsel submitted an expert report. Ms. Russell’s counsel admitted the expert’s qualifications and the admissibility of the opinion – but gave Mr. Goswell’s counsel notice she still required the expert for cross examination. The Court agreed the general rule is that a party can’t call their own expert witness to testify on direct examination. NS Civil Procedure Rule 55.13(2) reflects this prohibition – but for the first time, the Court clarified that Rule 55.13(2)(b) makes three exceptions:
- the expert is also a fact witness and the direct examination is confined to the facts;
- by the deadline in the Rules (called the “finish date” in the NS Rules), the opposing party notifies the party offering the expert opinion that it requires that party to call the expert for cross examination; or
- the presiding judge is satisfied that justice requires the expert to testify.
The Court decided the second exception applied here. Ms. Goswell’s counsel must arrange for the expert to attend for cross examination – and is free to first conduct a direct examination. This is an important clarification: although the Rules provide for this, they rarely enforce it. On the flip side, however, if there’s no request by the “finish date” in the Rules there’s no right to cross-examine the expert – and no right to direct.
If It Looks Like an Expert Report, and Sounds Like an Expert’s Report … Ms. Russell’s counsel asked the Court to admit five letters (two to the section B insurer and three to Ms. Russell’s legal counsel, all from her treating physicians) as “treating physician’s narratives” – not “expert reports”. The distinction is important. Under Rule 55.04, an “expert report” must comply in form and substance to strict requirements – including delivery deadlines – for admission as an “expert opinion”. Compliant reports can also be costly to obtain. Rule 55.14 carves out an exception: a party who wants to present evidence from a treating physician can deliver a “treating physician’s narrative”. Narratives don’t have to comply with the strict requirements of an expert report, and are typically less costly. The question for the Court: were the letters truly “treating physician’s narratives”, or expert reports dressed up as narratives? The Court decided it must “strictly construe” the criteria for a “physician’s narrative” in Rule 55.14 to avoid “circumventing” the expert opinion rules:
- Does it set out relevant facts observed?
- Does it set out findings made?
- Did the physician observe the facts and arrive at the findings during treatment?
The Court looked hard at the content of the letters relative to the criteria – and decided all five looked like expert reports, sounded like expert reports – and were not admissible as “treating physician’s narratives”.
All Health Professionals Are Not “Physicians” – At Least Not Under Rule 55. Ms. Russell’s counsel for also asked the Court to admit a Registered Psychologist’s reports as “treating physician’s narratives” under Rule 55.14. The Court decided that psychologists are valued health professionals, but they are not “physicians” under Rule 55 – only licensed medical doctors are. Thus NS registered psychologists join chiropractors (as decided in the 2011 NS Supreme Court decision in Gillis v. Roy Stutley Plumbing and Heating Ltd.) on the list of health professionals who aren’t “physicians” under Rule 55, and whose clients must therefore tender their opinions as “experts” in compliance with the stricter requirements of Rule 55.04.
Defendants Likely Have to Wait To Trial for a Minor Cap Decision. Mr. Goswell’s counsel asked the Court to decide whether Ms. Russell’s injuries were a “minor injury” – thus subject to the NS legislative cap – before the jury trial. The Court followed the rationale of an Ontario decision and refused. Acknowledging it was not bound by the jury’s verdict, the Court decided it wished to leave the door open to consider the jury’s factual determinations when deciding whether Ms. Russell’s injuries were “minor” – thus her damages capped. The decision suggests NS courts will not sever the issue of whether a plaintiff suffered a “minor injury” subject to the cap without compelling reasons to do so – at least not in a jury trial. The Court also rejected efficiency as a basis to sever the issue – though efficiency as a basis could depend on the specific facts of the case: here, Ms. Russell did not reside in NS.
Click here to read the NS Supreme Court’s decision in Russell v. Goswell.
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Insurance Defence Team to discuss this topic or any other legal issue.
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