Battle of the Experts: Civil Procedure Rule 55 and its Interpretation in 2021

Currently, there are approximately 70,000 Nova Scotians without a family doctor. Treating physicians in this province are maxed out in terms of patient loads and schedules. It is little wonder they're not keen to draft extensive Rule 55.04 compliant expert reports for lawyers representing their patients in civil litigation.  Still, their patients who are embroiled in litigation because of another person’s negligence require such expert reports to prove their losses and damages in court. The onus to prove these losses remains on the injured person, the Plaintiff.

In 2009 the Nova Scotia Civil Procedure rules underwent a considerable rewrite. One of the most consequential rule changes for personal injury lawyers and their clients was Rule 55. The requirements under Rule 55.04 are extensive and require more time than a basic medical-legal report where the physician responds to questions posed by a lawyer.

Rule 55 outlines how parties present expert evidence to the court. As a basic premise, opinion evidence is presumptively inadmissible. Witnesses are prohibited from testifying about their opinion and are instead limited to testifying about facts. There is an exception for expert witnesses who can testify about their opinion from within the area of their professional training and experience to assist the court on subject matters that fall generally outside the knowledge of the average person. The court has always played the role of gatekeeper in terms of what expert opinion is allowed to be presented. As part of that role “…the court must be satisfied that the proposed expert is impartial, independent and unbiased.”[1] In Nova Scotia, in order to be allowed to provide their expert opinion to the Court, expert witnesses must provide a report which is Rule 55 compliant.

Plaintiff personal injury lawyers have now been contending with Rule 55 for just over a decade and additional case law has been released in 2021 to guide its proper interpretation.

The 2021 decision Downey v. Burroughs[2] provides further clarification on the interpretation of Rule 55.04 (rule for admitting expert reports) and 55.14 (rule for admitting treating physician narratives). In Downey, the defendant sought an advance ruling under Rule 55.15 on the admissibility of certain medical reports in advance of trial. C.J. Smith confirmed that medical-legal reports cannot be entered into evidence under the physicians' narrative rule (Rule 55.14) at trial. This means that any report generated by a physician in response to questions posed by a lawyer will not be admissible at trial unless fully compliant with Rule 55.04.

Downey confirms that in Nova Scotia there are only two options to have opinion evidence from a treating physician entered at trial:

(1)   an expert's report that is compliant with Rule 55.04; or

(2)   a treating physician's narrative that complies with Rule 55.14. The Court found that the wording of Rule 55.14 does not allow for treating physicians to give opinion evidence as "participant” experts.

In Kennedy v. Smolenaars, 2021 NSSC 143, the defendants again sought an advance ruling under Rule 55.15 on several documents that the Plaintiff sought to admit as physician narratives under Rule 55.14.

These two cases seem to be examples of Plaintiff lawyers trying to avoid a battle of hired experts by bringing the opinions of a treating physician before the court; the results were mixed for the plaintiffs and defendants. Certain documents the Plaintiffs sought to admit were allowed under the treating physician narrative rule (Rule 55.14) and others were not. Plaintiff lawyers ought to be somewhat encouraged by J. Keith’s statement at paragraph 13 in Kennedy, supra, that the analysis of what sorts of opinion fit within Rule 55.14 will be “ … tempered by the overarching policy considerations around access to justice which informed the more relaxed standards contained within the treating physician rules including the Supreme Court of Canada's call for more proportionate proceedings in Hryniak v Mauldin, 2014 SCC 7.”[3] 

However, whether the opinions are expressed in a manner that is sufficiently clear to satisfy the requirements of Rules 55.14 is determined on a case-by-case basis. The key considerations are trial fairness and ensuring that the opposing party has sufficient information to determine whether they need to retain an expert to assess the opinion and allow them to adequately prepare for cross-examination of the physician.

The practical impact of the way Rule 55.14 has been interpreted is that treating physicians are less likely to be providing the court with their opinions. There is no way for a Plaintiff to have questions answered by a treating physician in a report which will be accepted by the court unless it is compliant with Rule 55.04. Then, lawyers run into the familiar problem of treating physicians being unwilling to author such Rule 55.04 compliant reports. Instead, in order to prove damages, the plaintiff must increasingly rely on independent physicians who have no connection to or knowledge of the plaintiff, typically having met them only once for a short period of time and at great expense.

If a treating physician is not willing or able to write a Rule 55.04 compliant report, and if the physician’s chart notes do not contain sufficient information and context to be accepted under Rule 55.14 then plaintiff lawyers must seek opinions elsewhere, often relying on out-of-province physicians who make a significant portion of their annual earnings providing reports and opinions in the context of litigation. These experts often charge upwards of $7,500 for an independent consult and report. One of the consequences of this model is increasing the costs of litigation for all parties involved. As well, the court is asked to rely on opinions from physicians who are far less familiar with the plaintiff compared to the family physician, who may have known the Plaintiff for many years.[4] It is not an option for the Plaintiff to seek any clarification or explanation from a treating physician about an opinion contained in a chart note and still have the evidence admitted under Rule 55.14.

The decision in Laybolt v. Irving Equipment Limited, 2021 NSSC 165 illustrates the perils of the parties heading to trial relying on diametrically opposed independent medical experts. J. Lynch found that the Defendant expert’s report and testimony did “not have the air and appearance of an impartial, non-partisan, objective expert.”[5] The Honourable Justice also concluded the Plaintiff’s medical expert was undermined in cross-examination and was critical of the expert’s document review, knowledge of the Plaintiff’s history, and failure to comment on a subsequent car accident. The courts are trying to manage the acceptance of expert evidence while sticking to its traditional and essential gatekeeping function.

Consequently, the court gave little weight to either expert opinion.[6]  Very likely, tens of thousands of dollars were collectively spent by the parties to obtain their respective reports and bring experts to trial yet neither opinion was accepted by the Court. Likely, a treating physician would have been more familiar with the Plaintiff’s history. Unfortunately, there is no easy solution as the Court strives to be fair to both parties while only accepting expert evidence which is impartial, independent, and unbiased. For now, it looks like the battle of the experts is here to stay in Nova Scotia. The associated expenses are now a part of the cost of litigation, regardless of whether the opinions are found to be useful to the Court.

Carter Simpson has prepared this document for information only. It is not legal advice.  You should consult Carter Simpson about your unique circumstances before acting on this information. Carter Simpson excludes all liability for anything contained in this document and any use you make of it.

[1] Downey v. Burroughs, 2021 NSSC 147

[2] Downey, supra

[3] Kennedy v Smolenaars, 2021 NSSC 143, para 13

[4] In the case of those Nova Scotians lucky enough to have a family physician

[5] Laybolt v. Irving Equipment Limited, 2021 NSSC 165

[6] Laybolt v. Irving Equipment Limited, 2021 NSSC 165, paragraph 30