The proper application of the new Rules of Civil
Procedure (the Rules) on expert evidence is a
matter of some controversy at the moment, reflected by the recent
conflict between the decisions in Beasley v. Barrand
(2010) and McNeil v. Filthaut (2011), which leaves
undecided the question of whether accident benefit assessors are
subject to the new Rules.
In McNeil v. Filthaut, the trial judge considered the
question of whether the new requirements outlined in Rules 4.1.01
and 53.03 relating to expert witnesses apply to individuals
retained by non-parties to the litigation, namely, the accident
benefit assessors of the plaintiff. The defendant was seeking to
call as expert witnesses a number of the professionals retained by
the plaintiff's accident benefits insurer to give both factual
and opinion evidence at trial.
The action arose out of a motor vehicle accident on June 23,
2001. The plaintiff claimed to be permanently disabled and unable
to work because of the injuries she suffered in the accident.
Following the accident, the plaintiff applied for and received
statutory accident benefits from her insurer for medical and
rehabilitation expenses and income replacement. To establish
entitlement, the accident benefits insurer retained various medical
experts to assess the plaintiff. These experts provided reports to
the insurer, which included factual findings as well as opinions,
such as whether the plaintiff was able to return to work. It was
agreed by both the plaintiff and the defendant that the information
in these reports was highly relevant to the issues.
The plaintiff, however, objected to the accident benefit
assessors giving expert opinion evidence at trial, as their reports
did not strictly comply with the requirements of Rule 53.03. The
defendants argued that the requirements of Rule 53.03 only apply to
experts engaged by parties to the litigation, and do not apply to
experts engaged by non-parties. The plaintiffs asserted that Rule
53.03 applies to all experts, regardless of whether they have been
engaged by non-parties to the litigation.
The trial judge decided that the requirements outlined in Rules
4.1.01 and 53.03, as they relate to expert witnesses, do not apply
to individuals retained by non-parties to the litigation such as
accident benefit medical experts. In her view, the key factor
triggering application of the expert rules is found in the clear
language of the Rules, namely, when an expert is "engaged by
or on behalf of a party to the litigation". Thus, the Rules
were not intended to apply to experts retained by or on behalf of
non-parties to litigation.
The conclusion in McNeil v. Filthaut that Rule 53.03
applies only to litigation experts contradicts the earlier decision
in Beasley v. Barrand. In the view of the trial judge in
that case, it did not make sense to apply a higher standard to
consulting medical experts hired by parties to the litigation and a
lower standard to consulting medical experts hired by a non-party
but whose opinions might assist.
Addressing this conflict, the trial judge in McNeil v.
Filthaut stated that she could not concur with the Beasley
v. Barrand approach. Based on both her reading and
interpretation of Rules 4.1.01 and 53.03, their application is
limited to experts "engaged by or on behalf of a party."
She highlighted that the ultimate purpose of the new Rules is to
limit and control the proliferation of experts retained by
litigants by imposing on those experts a duty of fairness,
objectivity, and non-partisanship to the court, which prevails over
any other obligations owed by the expert to a party. The
introduction of the new Rules is an effort to eliminate the use of
"hired guns" or "opinions for sale" in civil
litigation, the use of which has resulted in potentially biased
expert evidence being given at trial. In her view, the Rules were
not drafted or intended to catch experts not hired by parties.
Unfortunately, the Beasley v. Barrand approach has
caused a significant proliferation in litigation where parties have
scrambled for direction as to whether the expert intended to be
called is a treating expert or litigation expert, guidance on the
difficult task of straining opinions out of treating expert's
anticipated evidence leaving only facts, and whether the proposed
expert ought to be granted relief from non-compliance with the
strict requirements of Rule 53.03 and allowed to give opinion
evidence nonetheless. As long as the law is in flux and parties and
their counsel need to be concerned about the Beasley v.
Barrand approach, this will continue.
The interpretation of Rules 4.1.01 and 53.03 is important and
will affect every party, counsel, and trier of fact involved in
litigation where expert evidence is a critical part. Hopefully,
resolution of the issue will be soon in coming from the Court of
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