Experts are regularly hired in personal injury cases. Reports produced by experts are used to facilitate settlement of personal injury claims or support an injured person’s case at trial. The injured person can hire experts to complete medical assessments, conduct medical reviews, recommend treatment and produce medical-legal reports which provides opinions, findings and conclusions about a person’s injuries or damages. If an action has been commenced, the defendant can also request that the injured person (the plaintiff) attend a defence medical examination, sometimes referred to as a DME or independent medical examination (IME). In complicated injury cases, there can be several defence medical examinations and many experts hired by both sides.
Rules of the Court about experts
The Rules of the Court, called the Rules of Civil Procedure provides direction as to how experts are retained and how experts testify in Court.
Rule 4.1 deals with duties of experts:
RULE 4.1 DUTY OF EXPERT
DUTY OF EXPERT
4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,
(a) to provide opinion evidence that is fair, objective and non-partisan;
(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and
(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue. O. Reg. 438/08, s. 8.
(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.
Rule 31.06(3) provides the following as it relates to discovery or disclosure of expert opinions:
(3) A party may on an examination for discovery obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined that are relevant to a matter in issue in the action and of the expert’s name and address, but the party being examined need not disclose the information or the name and address of the expert where,
(a) the findings, opinions and conclusions of the expert relevant to any matter in issue in the action were made or formed in preparation for contemplated or pending litigation and for no other purpose; and
(b) the party being examined undertakes not to call the expert as a witness at the trial.
In some cases, Judges can order that expert reports be produced at pre-trial conferences, parties be allowed to examine experts in advance of trial or that experts meet. The Court can order that any experts engaged by or on behalf of the parties in relation to the action meet on a without prejudice basis in order to identify the issues on which the experts agree and the issues on which they do not agree, to attempt to clarify and resolve any issues that are the subject of disagreement and to prepare a joint statement setting out the areas of agreement and any areas of disagreement and the reasons for it if, in the opinion of the court, the cost or time savings or other benefits that may be achieved from the meeting are proportionate to the amounts at stake or the importance of the issues involved in the case and, (I) there is a reasonable prospect for agreement on some or all of the issues, or (ii) the rationale for opposing expert opinions is unknown and clarification on areas of disagreement would assist the parties or the court.
Use of experts at trial
There are Rules governing use of experts at trial. For instance, Rule 53 provides the following:
53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference scheduled under subrule 50.02 (1) or (2), serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).
(2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).
(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:
1. The expert’s name, address and area of expertise.
2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.
3. The instructions provided to the expert in relation to the proceeding.
4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
6. The expert’s reasons for his or her opinion, including,
I. a description of the factual assumptions on which the opinion is based,
ii. a description of any research conducted by the expert that led him or her to form the opinion, and
iii. a list of every document, if any, relied on by the expert in forming the opinion.
7. An acknowledgment of expert’s duty (Form 53) signed by the expert.
Schedule for Service of Reports
(2.2) Within 60 days after an action is set down for trial, the parties shall agree to a schedule setting out dates for the service of experts’ reports in order to meet the requirements of subrules (1) and (2), unless the court orders otherwise.
Types of Experts
There are medical and non-medical experts routinely used in personal injury cases. Expert witnesses are common in personal injury cases. The parties can use medical experts, accountants, engineers, economists, occupational therapists and any other type of expert that may given assistance to the parties and to the Court. In many cases, experts charge thousands of dollars for producing medical-legal reports and ask to be paid to testify in Court.
The duty of experts are outlined in Rule 4 – see above. This means that the duty of an expert is to the Court and not to any party. Therefore, experts must be fair and honest no matter who pays them for their reports. In reality, some experts are not “independent” and often routinely prepare reports for one side, either the defendant or plaintiff.
Who pays for the experts?
Our lawyers pay to retain experts and produce reports. The cost is often in the thousands of dollars. If the case settles, the costs of experts is recovered from the settlement. Our injury lawyers will review your case very carefully and recommend the types of experts needed to provide opinions on your injuries and your losses. Our lawyers deal with experts regularly and so are able to locate the best experts to suit your case.
Ottawa injury lawyer
Tel: (613) 315-4878