Civil procedure

10. Preparing for Trial

TOPICS

Trial Management Conference

Admissions

Expert Witnesses

R v Mohan

Keefer Laundry v Pellerin Milnor Corp

Maceachern v Rennnie (2009)

Expert Witness Testimony

PART 11 RULES – p.40

• 
  General rule is that opinion evidence is excluded – witness testify as to their observations
  
  • 
    However, expert evidence is an exception to this rule b/c sometimes relevant evidence cannot be understood or properly evaluated w/o assistance of experts
    
• 
  Rules of Civ Pro anticipate this – and so require closer disclosure of the names, qualification, and substance of expert opinion in advance of trial, so that parties can prepare for trial in a more effective & informed manner
  
• 
  The outcome can be significantly determined by expert reports and testimony [settlement or not]
  
• 
  Expert’s role is to assist the Court, but not to help the cause of one or more parties  to provide the expertise on a matter that the Court does not possess
  
  • 
    Role of expert is two-fold:
    

1. 
   Assistance provided by expert before a trial
   

• 
  The correspondence b/w you and the expert is privileged before trial
  
• 
  BUT when you call on the expert witness at trial, everything that was shared b/w the expert & you [role shifts from confidential advisor  to assister of trier of fact]
  

2. 
   Assistance provided after the trial has started
   

EXAMPLE

• 
  Expert witness to share a lay-opinion on someone’s sobriety
  
  • 
    This becomes accepted b/c witness opinion is in a better position (even not in the position of medical opinion) than the trier of fact of how drunk a person was
    

Rule – Part 11 – Experts

PART 11 RULES – p.40

11-1

(1)(b) – Exception for laypeople offering evidence to the Court

(2) If a case planning conference has been held (part 5) expert opinion evidence may not be tendered at trial unless provided for in the case plan order – can amend the case plan order Rule 5-4
11-2

1. 
   In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party
   
2. 
   A rule on ensuring that the expert knows their duty
   

11-3 - Deals with appointment of joint experts

11-4 – For each party to appoint its own expert

11-5 - Appointment of their own experts by the court

11-6 – p.43 - Content & Admissibility of Expert Reports

1. 
   Requirements – name, address, area of expertise, qualifications, education experience, instructions
   
2. 
   Proof of qualification
   

3. 
   Service of report – at lest 84 days before scheduled trial date, must be served on every part of record AND written notice of the report is being served
   
4. 
   Notify expert at the trial date and that they might be required for cross-examination
   

11-7 – p.44

Expert witness cannot testify in Court unless the experts direct evidence has been included in a report that has been prepared & served

R v Mohan

[Test for admission of expert evidence]

ISSUE

The issue before the Supreme Court was whether Hill's testimony could be admitted as an expert witness, and whether the testimony would violate the rule against character evidence.

RULE & ANALYSIS

To see whether or not to admit expert evidence, the SCC set up the following 4 broad criteria to apply:

1. 
   Relevance
   

• 
  Is this proposed expert evidence even relevant to the case? Evidence must be relevant to the issue/case
  
• 
  Benefits of admitting the evidence should outweigh the costs
  

1. 
   If its probative value overborne by prejudicial effect?
   

• 
  Ex: polygraph testing  the impact on the trier of fact is out of proportion to the reliability of the device itself.
  

1. 
   Does it involve inordinate amount of time, which is not proportionate with its value? or
   

• 
  Ex – the amount of time it will take to receive this expert evidence VS what that evidence will actually add to the case)
  

1. 
   If it’s misleading in the sense that its effect on the trier of fact is out of proportion to reliability
   

• 
  Danger that the expert evidence will be misused and will distort the fact-finding process – if it’s dressed in language that the Court does not easily understand
  

2. 
   Necessity
   

• 
  Necessity to assist the trier of fact
  
• 
  In order to find necessity, the opinion must be necessary in the sense that it provides information, which is likely to be outside the experience and knowledge of a judge or jury.
  
  • 
    If judge/jury can form their own conclusions without help, then the opinion is not needed
    

3. 
   Absence of any other exclusionary rule
   

• 
  Aside from the fact that this is opinion evidence, would there be any other evidence that would exclude it? If the answer is no, then it may be admissible
  
• 
  Example: Heresay remains presumptively inadmissible
  

4. 
   Must be a properly qualified expert
   

• 
  Expert must have specialized or technical knowledge through study or experience in their respective field
  

• 
  Just because you have an expert, doesn't mean that they’re always right
  
• 
  However, experts are very persuasive especially towards jury
  
• 
  In light of this, judge is asked to consider the cost/benefit very carefully
  

Keefer Laundry Ltd. v. Pellerin Milnor Corp., 2007 BCSC 899

[Quality of expert evidence provided – Expert opinions must accord with the proper role and function of an expert  cannot give opinion on value of claim, or assign blame, etc]

Significance:

• 
  The question is whether the report, taken as a whole, is capable of providing the court with the assistance that is required
  

Factors from Quintette to consider:

1. 
   An expert may give evidence on the proper methods and tests necessary to determine the cause of rust in industrial equipment.
   
2. 
   He may state an opinion as to whether and to what extent various conditions known or assumed to exist in the equipment or the P's plant would be expected to cause or contribute to rusting.
   
3. 
   He may give both opinion evidence and factual evidence based on his experience as to the proper precautions to be taken in order to reduce or eliminate the risk of rust in such equipment.
   
4. 
   He may not give an opinion which amounts to legal interpretation on the contracts or alleged contracts in issue.
   
5. 
   Where rival experts have presented or are expected to present differing opinions, he may descend to argument to show why his opinion should be accepted in preference to the others', but the argument should be restricted to the technical reasons why he says his opinion is preferable.
   
6. 
   He may not make conclusive findings of fact on issues disputed between the parties, but he may state certain facts as the hypothesis upon which he reaches an opinion or refer to matters which are already put in evidence. In each case, he should make clear which hypotheses or evidence he relies upon. It will be for the court to decide eventually whether that hypothesis is made out or whether the appropriate facts are found from that evidence.
   
7. 
   He may not assess the value or justifiability of the plaintiff's claim.
   
8. 
   He may not assign blame to any party, but he may give his opinion as to cause and effect.
   

Para 10 – Expert reports that include findings of fact, allegations of blame, conclusions of law, sometimes overt, sometimes implied – this is a trespass on the role of the court

Para 15-16 – court explains the difference between an expert advocating for a party vs. an expert advocating for the strength of their opinion. The latter is ok, the former is not.

Experts are not allowed to advocate for the party – they CAN say that this is their TRUE and IMPARTIAL opinion in the area of which they have EXPERTISE, and this is their PROOF

MacEachern v. Rennie, 2009 BCSC 585

[necessity of expert evidence]

FACTS

M was struck while on the highway by a large tractor trailer owned by CN and driven by Rennie. They deny liability. M wanted a pro driving instructor w/ extensive driving experience of tractor trailers to be qualified as an expert. They want him to attest to the standard of care of a driver, whether Rennie’s conduct fell below that standard, and to talk in general about big rigs. Rennie claims the necessity test is failed because the Motor Vehicle act sets out the appropriate standard of care.

RULE

• 
  When the court will be furnished with info that it could not otherwise reasonably infer by an expert, their opinions may be heard.
  
• 
  While expert evidence is not normally necessary in negligence actions, it may be admissible if it assists the trier of fact where the subject matter is beyond their common understanding.
  

ANALYSIS

Due to the fact that most people have never driven a big rig or will never drive one, the expert evidence was relevant to give the jury an idea as to what the experience is of driving those vehicles. The legislative standard that exists in the MVA is important, a statutory breach does not instantly make someone’s conduct unreasonable or render them guilty of negligence. Since the MVA was worded in a general way, less weight is accorded to the power of the statute to determine what conduct is unreasonable. Ultimately, how important the evidence Eckert gives is will be determined later, but it serves a clear purpose and thus should be admitted.

HOLDING - Expert allowed.

MacEachern v. Rennie, 2009 BCSC 941

[narrow interpretation of rules on admitting experts]

FACTS & HOLDING

As counterclaim, Rennie wanted a registered nurse and director of care home to show whether the brain injury of M’s would need extra care. She is denied as being an expert.

RULE

While opinions are what expert is designed to give, they must be based on reliable facts & assumptions. With medical evidence, opinions should be based on full medical evidence at hand – not just mere opinion.

ANALYSIS

S was denied b/c she didn't have sufficient access to all the facts about M’s case to properly assess whether she would be well-cared for in the care homes. And her work experience didn't allow her to truly assess the long term needs of plaintiff.