The future is clear now: Expert evidence under the new civil rules

I previously penned an article on this subject in June 2008. The article was based on the proposed changes to the Rules of Court in British Columbia. As it goes with legislation, there were many revisions and rewrites before it was passed. The final changes to the rules, which have now been legislated, will come into force on 1 July 2010. Part 11 deals entirely with experts.

There have been further changes to the rules regarding expert evidence from those initially proposed. The overriding principle, however, remains the same: experts have a duty to assist the court and are not to act as advocates for any party. This neutrality must be explicitly certified within the report itself. Reports must be drafted and oral testimony must be given in conformity with this principle. 

It is not yet clear what the consequences will be of a failure to provide or comply with such a certification; however, it could result in exclusion of the evidence or possible censure against the expert personally. 

Each party is free to appoint their own expert; however, the new rules make provisions for parties to appoint a joint expert. In such a case, the joint expert is the only expert who may give expert opinion evidence in the action on a particular issue unless the court grants an order allowing additional experts. A joint expert may be cross-examined by each party of record. 

The court may also appoint its own expert if it considers that expert opinion evidence may help the court in resolving an issue in the action. An expert may be appointed by the court even if the expert has already prepared a report for one of the parties to the action. Such an appointment would, of course, be subject to the expert’s consent. 

The previous draft rules provided for mandatory conferences between opposing experts. This had been subject to some criticism and, in the final form, such a conference is no longer mandatory. The court may, however, make such an order at a case-planning conference. 

The court may also make orders for a jointly instructed expert, limiting the number of experts a party may call, setting a date for service of reports, and narrowing the issues on which an expert may be called. If such an order is made, expert opinion must not be tendered at trial except as provided for in the order.

The new rules also include more detailed requirements for reports. In addition to the expert’s signature and the certification mentioned previously, reports must also include the following:

• The expert’s name, address, and area of expertise.
• The expert’s qualifications, employment, and education experience in his or her area of expertise.
• The instructions provided to the expert in relation to the proceeding.
• The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
• The expert’s opinion on each issue and, if there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
• The reasons for the expert’s opinion, including a description of the factual assumptions, research conducted, and documents relied upon. 

The last requirement serves as a useful reminder that expert evidence should be based on facts that can be proven at trial and on reliable and accepted scientific principles. 

Reports must be served at least 84 days before the scheduled trial date and responding reports must be served at least 42 days before trial. The rules also impose an obligation on the expert to prepare a supplementary report, as soon as practicable, if his or her opinion changes in any material way. 

Gone are the days of producing the medical expert’s file when and if the expert takes the stand to give evidence at trial. The new rules provide that a party who has served a report must, upon request, provide the following at least 14 days before trial:

• Any written statement or statements of fact on which the expert’s opinion is based.
• Records of any independent observations made by the expert in relation to the report.
• Any data compiled by the expert in relation to the report.
• The results of any test conducted by or for the expert, or of any in­spection conducted by the expert, if relied upon in forming his or her opinion. 
• The contents of the expert’s file relating to the preparation of the opinion.

The rules provide that experts must be promptly notified of a trial date and whether they may be re­quired to attend at trial for cross-examination. Objections to any expert opinion must be raised no less than 21 days before trial or they will not be permitted at trial. 

An expert is not permitted to give evidence at trial unless a report has been prepared and serv­ed in accordance with the rules. If a party wishes to cross-examine an expert, they must give notice to the party tendering the report within 21 days after the report is served. 

If an expert has been requested for cross-examination, the report will not be admitted unless the expert is present at trial. If an expert is not called for the purpose of cross-examination, the scope of the evidence he or she can give is limited to clarifying terminology in the report or otherwise making the report more understandable. 

In anticipation of the new rules coming into force, medical experts will likely soon be asked to change the format of the reports to reflect the new rules, particularly for any matter which has a trial date after 1 July 2010.

Medical experts will continue to play an important role in personal injury litigation in the province. The new rules should serve to clarify the role of experts in civil litigation and provide greater certainty for both parties and the experts who are retained. 
—Tanya Heuchert, BA, LLB
Counsel, ICBC Claims Legal Services

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Tanya Heuchert, BA, LLB,. The future is clear now: Expert evidence under the new civil rules. BCMJ, Vol. 52, No. 1, January, February, 2010, Page(s) 17 - ICBC.

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