Don’t Mess with the New Rules

Close Call for the Plaintiff

In Helgason v. Bosa 2010 BCSC 1756 that was released on December 8, 2010, Mr. Justice Silverman found that the family doctor’s updated expert report did not comply with the Rules.

Dr. Nordahl had prepared an expert report dated May 11, 2009 and a supplementary report dated October 6, 2010, only 14 days before trial.  Although the judgment does not set out the specific reason for the breach, I presume that the late delivery is the reason for the ruling that it was inadmissible.

At trial, the plaintiff had intended to tender the 2 expert reports from the family doctor.  Without the supplementary report, that left the first May 2009 report as the only admissible expert evidence at trial.  The problem was that the doctor’s first report said the plaintiff’s working capabilities were not affected by the collision, something one would expect to be a big problem for the plaintiff:

[47]        The report provides the following opinion:

You have asked me to comment with regard to [the plaintiff’s] loss of earning capacity.  I do not feel that [the plaintiff] is less capable overall from earning income from all types of employment and I do not feel she is less marketable or attractive as an employee to potential employers as a result of the motor vehicle accident.

However, at some point after Dr. Nordahl wrote her first report, her opinion changed on this topic which she presumably set out in her supplementary report which was not permitted in evidence, nor was questioning on the topic permitted while on the stand.  Justice Silverman explained at paragraphs 44 and 45 of his decision:

[44]         The plaintiff’s attempt to lead evidence, with respect to all issues concerning the future, met with an obstacle in the form of an evidentiary ruling which I made earlier in the trial.  Before the first witness was called, the defendant took objection to a supplementary report of Dr. Nordahl dated October 6, 2010.  I ruled it to be inadmissible for non-compliance with the Rules.  My oral ruling was given on the second day of trial pursuant to Rules 11-6 and 11-7.

[45]         That inadmissible evidence purported to express an opinion of Dr. Nordahl’s which was contrary to the opinion in the admissible report of May 11, 2009 with respect to the plaintiff’s future capabilities.  I also ruled inadmissible, for the same reasons, Dr. Nordahl’s oral evidence with respect to the same contrary opinion.

In spite of this, the Judge found that the plaintiff had suffered a loss of earning capacity based on a combination of the other evidence heard at trial.  Mr. Justice Silverman explained his decision at paragraphs 48 and 49:

[48]         It does not follow from my ruling that I must conclude that the doctor’s opinion as of May 11, 2009, was still her opinion at trial.  Clearly, it was not.  However, the most significant consequence of my ruling is that there is no expert opinion in evidence with respect to future issues to support the plaintiff’s argument that I should be awarding damages for various of the plaintiff’s future concerns.

[49]         It does not necessarily follow from that, that the plaintiff is unable to mount an argument that there is still a sufficient basis for me to make the findings that she argues are appropriate.  The plaintiff argues that there is still sufficient evidence for me to draw the inferences which she argues I should draw, even without the opinion expressed in the inadmissible report.  It is noteworthy, in that regard, that when the defendants argued for the ruling with respect to admissibility, one prong of its argument was that the non-compliant report was not “necessary” because there was already other evidence with respect to the various future issues.

Justice Silverman found that the 55 year old Ms. Helgason had suffered a loss of earning capacity in the amount of $45,000.  It seems to me that the plaintiff was very fortunate that the judge found Ms. Helgason to be credible.

Here is the link to the decision:

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