Utilizing New Medical Technology In Today's Litigation

First presented at a Transportation Law Seminar

When utilized properly, expert evidence can be a valuable tool in litigation. Experts are allowed to opine on key issues of fact at trial due to the specialized knowledge they possess in their respective fields. However, courts have increasingly scrutinized the admissibility of expert evidence in the past few decades, with the proliferation of expert evidence and the recurring problem that "many experts are no more than hired guns who tailor their reports and evidence to suit the client's needs."1This issue sparked Justice Osborne's recommendations on the use of expert evidence in civil proceedings in his report on reforming the civil justice system. Justice Osborne's report precipitated significant changes to the Rules of Civil Procedure (the "Rules") in order to minimize the unjust outcomes caused by relying on biased expert evidence.2

Although the courts are sceptical of "dubious science", the test for the admissibility of expert evidence still responds to ever-changing developments in science and technology. Consequently, defence counsel, in strategizing the long-term viability of a case, should consider whether new technologies can assist in illuminating the medical condition of plaintiffs and result in reduced future medical treatment and, therefore, reduced future care costs.

Part I: The Expert Prior to Trial

When handling matters involving complicated medical prognoses, the benefits of retaining an expert more often than not outweigh the cost. However, there are numerous factors to consider in retaining an appropriate medical expert. The chosen expert should be comfortable with medical technologies in order to allow them to assist the court and alleviate any potential concerns.

Number of Experts

After determining that expert evidence is necessary, the issue then centres on how many experts to retain in order to effectively advocate a position. Complex matters such as serious personal injury cases often require numerous expert witnesses.3

In order to introduce expert evidence counsel must first satisfy the threshold requirements of admissibility set out by the Supreme Court of Canada in R. v. Mohan: relevance, necessity, absence of an exclusionary rule, and a properly qualified expert. The court must find that the expert evidence is necessary and provides information likely to be outside the experience and knowledge of a judge or jury.4

Limitations are also placed by section 12 of the Evidence Act, which limits the number of expert witnesses a party may call, without leave, to three.5 In Burgess v. Wu the Ontario Superior Court found that section 12 of the Evidence Act limits a party to three expert witnesses in total rather than expert witnesses per issue.6

Despite the limits imposed on the number of experts by the Evidence Act, a trial judge has discretion to allow more than three experts to be called at trial. In order to avoid the uncertainty of being constrained to three experts at trial, changes were made to the Rules; Rule 56.06.8 permits the number of experts allowed to testify to be determined prior to trial.7

In Burgess the Court set out the following factors to be considered when parties exceed the three experts limit:

Whether the opposing party objects to leave being granted The number of expert subjects in issue The number of experts each side proposes to have opine on each subject How many experts are customarily called in cases with similar issues? Will the opposing party be disadvantaged if leave is granted because the applying party will then have more experts than the opposing party? Is it necessary to call more than three experts in order to adduce evidence on the issues in dispute? How much duplication is there in the proposed opinions of different experts? Is the time and cost involved in calling the additional experts disproportionate to the amount at stake in the trial?8 Thus courts are more likely to abandon the three experts rule where expert opinions do not repeat or where the experts' qualifications diverge.

Duty of an Expert

The duty of an expert is to use their specialized knowledge and experience to provide unbiased and independent assistance to the court in reaching factual conclusions. To combat the risk that an expert witness assumes the role of an advocate, Rule 4.1 of the Rules prescribed a duty on expert witnesses that is owed to the Court, to provide evidence that is "fair, objective and non-partisan" within their respective areas of expertise.9

However, the Supreme Court of Canada stated that:

"For expert testimony to be inadmissible, more than a simple appearance of bias is necessary. The question is not whether a reasonable person would consider that the expert is not independent. Rather, what must be determined is whether the expert's lack of independence renders him or her incapable of giving an impartial opinion in the specific circumstances of the case."10

In view of the duty set out in Rule 4.1, Rule 53.03 was amended to further eliminate expert bias.11 Experts are also required to execute a "Form 53" which acts as the expert's acknowledgment of their duty to the Court.12 (See Appendix 1)

It is imperative to consider the duty of an expert before selecting appropriate experts. They must be willing to comply with procedural rules and law, as the codification of this duty has made courts even more intolerant of experts who appear to be "hired guns".

The Expert Report

(i) Applicability of Rule 53.03 of the Rules of Civil Procedure

A failure to comply with the provisions of Rule 53.03 may prohibit an expert from testifying at trial. The determination of whether Rule 53.03 is applicable is reliant on the type of expert witness. In Westerhof v Gee Estate, the Court of Appeal established:

"A witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:

The opinion to be given is based on the witness's observation of or participation in the events at issue; and The witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.13 The Court exempted non-party experts from compliance with expert report requirements, due to the fact that these experts have not been retained to provide expert evidence pursuant to Rule 53. In addition, the Court reasoned that the increased use of experts only increases the cost of litigation and delays proceedings.14

(ii) Preparation and Use of Expert Reports

In preparing an expert report, counsel must look not only to Rule 53.03(2.1)15, which sets out a list of information that reports must include but should also consider the Court of Appeal's decision in Marchand v. The Public General Hospital Society of Chatham.16

Marchand stands for the proposition that a party should not be unfairly surprised by expert evidence on an issue that was not raised in an expert's report.17 Counsel must advise their expert to include all material conclusions in their report. Material conclusions include any new technology that the expert intends to rely on in support of his or her testimony at trial. The opposing party should have adequate notice of expert evidence, which will be relied on at trial, particularly as new technologies may receive additional scrutiny from the court.

However, as impressive as scientific findings derived from new technologies may sound, counsel should caution their expert to avoid the use of overly technical language in conveying their expert opinion.

(iii) Rule on the Ultimate Issue

Although new medical technologies can greatly aid the court in determining an issue of law, experts should avoid ruling on the ultimate issue. The ultimate issue is a legal determination to be resolved by the trier of fact, for instance whether a party is liable or whether that party is entitled to damages. In accordance with the 'ultimate issue rule', a witness cannot provide opinions or arrive at conclusions, which...