Tort Insurer Can’t Call AB Doctors as Experts

In an important new decision, Mr. Justice J. Patrick Moore has refused to allow the defendant in a personal injury action to adduce expert testimony from three physicians who examined the plaintiff in connection with a claim for statutory accident benefits. The decision hinged on the new wording of Rule 53.03.

The ruling was made in Beasley and Scott v. Barrand. The plaintiff had been injured in a motorcycle accident in 2002 and sued the defendants for damages. At trial, counsel for the defendant sought to tender the expert evidence of three doctors who had examined the plaintiff in the course of his application for accident benefits and who had expressed an opinion that the plaintiff was able to work. Counsel for the plaintiff objected on the basis that those experts’ reports “cannot possibly be read to comply with the provisions of Rule 53.03.”

Prior to the trial, the defendants’ lawyer had tried to comply with Rule 53.03 by having each doctor sign an “acknowledgment of expert’s duty” [Form 53]. (That form and the corresponding provisions in Rule 53.03 only came into effect in January, 2010 as a result of reforms to the Rules of Civil Procedure.)

As Moore J. pointed out, Form 53 requires the expert to name the party by whom he or she was engaged to provide evidence in “the above-noted court proceeding” [emphasis in original] and to set out the instructions provided to him or her in relation to “this proceeding” [emphasis in original].

(It is to be noted that Rule 53.03 refers to “the” proceeding instead of “this” proceeding.)

In this case, the three doctors had been retained by insurers, not by a party in the tort action.

Justice Moore found that none of the three doctors in question had attempted to write their reports in compliance with Rule 53.03:

Drs. Moddel, Weinberg, and Soric did not state in their reports whether they were qualified to opine, on the basis of the information and documentation available to them, that the plaintiff was physically or psychologically capable of returning to all and every aspect of his activities of daily living, including his pre-accident employment. Nor did they describe on what basis Mr. Beasley might (as the adjuster’s instructing letter asked) undertake the essential duties of his occupation [including, for example, physical intervention leading to physical restraints]. In any event, the basis for their optimism that Mr. Beasley would be able to meet the demands of the job is simply not addressed.

Justice Moore mentioned that the relationship between an insurer and an insured is a fiduciary one, while the relationship between a plaintiff and a defendant in a tort action is not. He also noted that the issues in the two types claim can be quite different.

In addition, Justice Moore pointed out that the three doctors in question had seen the plaintiff back in 2003, while a number of other doctors who had been engaged for this litigation had seen him more recently.

His Honour found that the plaintiff would be unfairly prejudiced if the three experts in question were permitted to testify.

Justice Moore adjourned the motion for about two weeks, “to provide time to defence counsel to consider his alternatives”. During that interval, counsel for the defendants wrote to the three doctors and provided each with new Form 53’s. Two of the three doctors signed and returned the forms. Moore J. was critical of this: “[t]he forms attached to each doctor’s letter stated that the doctor had been retained to provide evidence in relation to this proceeding. The forms did not state that the doctors had not been retained by the defendants, nor that they had been engaged by the defendants merely for the purposes of completing the form.” His Honour went further and said that “defence counsels’ letters and the forms sent are inaccurate and confusing” and that “[m]ore troubling is the fact that the doctors appear to have signed the forms without reading or understanding their content.”

His Honour concluded that “substantially all of the preconditions to admission of the evidence of an expert have been breached by the party seeking to adduce the evidence of the expert(s)” and that “[t]his is not a matter of technically interpreting the provisions of the Rule but rather one of whether to ignore the Rule altogether.”

In his discussion of the new Rule, Justice Moore said that even before it had come into force, he and other judges had expressed concern about the role of experts in the litigation process and, in particular, the issue of experts’ objectivity. He felt that Rule 53.03 was an articulation of that concern.

In the result, Justice Moore refused to let the three doctors testify. It appears that this ruling might not be of general application though. For one thing, it was clear that His Honour disapproved of the steps that were taken in this case by defence counsel, to try to comply with Rule 53.03. Secondly, he specifically said that his decision was not to be taken as a blanket prohibition:

I am not to be heard to state that experts retained by accident benefits insurers cannot give opinion evidence in a tort action; rather, I say that such experts should first comply with Rule 53.03. I say “should” for there may be cases where that is not possible and then the court might consider relieving against non compliance to ensure a fair adjudication of the issues upon their merits but this is not one of those cases.

His Honour did suggest one “work-around”, but it probably will not have much appeal for defence lawyers. He proposed that the defendants, at their own expense, could ask the doctors to provide reports to counsel for the plaintiff. It is not clear who would then be calling the doctors as witnesses. However, in this case, Justice Moore said that his suggestion had not been taken up.

Although Justice Moore did not rule out ever having experts retained by accident benefits insurers testify in a tort action, the new provisions of Rule 53.03 will clearly create a significant barrier for defence counsel seeking to elicit such evidence.

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