FUMBLING THE BALL WITH AN EXPERT WITNESS by jolinmilioncherie

VIEWS: 5 PAGES: 90

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            FUMBLING THE BALL WITH AN EXPERT
                        WITNESS

                                             Reginald Watson
                                                 Balfour Moss
                                              700-2103-11thAve.
                                            Regina, Sask. S4P 4G1
                                          Ph: 347-8300 Fax: 347-8350


                                               Alan McIntyre
                                             Robertson Stromberg
                                         Suite 1000 - 1777 Victoria Ave.
                                            Regina, Sask. S4P 4K5
                                          Ph: 569-9000 Fax: 757-6443




                                  BIOGRAPHICAL INFORMATION
     Reginald Watson
     Reg earned a B. Admin. from the University of Regina in 1976 and an LL.B. from the University of
     Saskatchewan in 1979. He was called to the Saskatchewan Bar in 1980. Reg's area of practice is in Civil
     Litigation. He is the former Editor of the Rules and Practice corner - The Advocate of Saskatchewan Trial
     Lawyers Association; former President of Saskatchewan Trial Lawyers Association; CBA Health Law
     South Section Head; and has extensive involvement in continuing legal education programs in the areas
     of health law, law of evidence, law of discovery, and civil procedure. Reg practices with Balfour Moss in
     Regina.



                                  BIOGRAPHICAL INFORMATION
     Alan McIntyre
     Alan earned a B.A. from the University of Regina and an LL.B. from the University of Saskatchewan. He
     was called to the Saskatchewan Bar in 1980. Alan's areas of practice include civil litigation, criminal law,
     and administrative law. His practice involves witnesses and hearings almost exclusively. He presented at
     the 1990 Mid-Wint~r Meeting on practice issues. Alan practices with Robertson Stromberg in Regina.
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'I    )
)                           EXPERT WITNESS CHECKLIST
    Rule 284D(I) requires notice of expert witnesses including "qualifications of the expert". The
    practice in Saskatchewan has been to simply attach a copy of the curriculum vitae of the witness.
    In most circumstances, that is appropriate. It should be used as a tool to prepare yourself for
    qualifying your own witness and cross-examining the opponent's expert witness. The following
    factors should be addressed:
    I.   Name, Address and Background
    2.   Business or Occupation
         a)    Description of the business or occupation?
         b)    How long in that capacity?
         c)    With which company or organization?
          d)   What previous positions held?
         e)    A description of those positions.
    3.    Education
          a)   Undergraduate degree obtained when and from which school?
          b)   Postgraduate degree obtained when and from which school?
          c)   Any Masters or PHD thesis written.
    4.   Training
          a)   What courses have been taken in relation to their "expert" opinion?
          b)    Who have they trained under?
          c)   For how long?
          d)    When?
    5.    Licenses
          a)    Are they required?
          b)    When obtained?
          c)    Any specialty certification or review required?
    6.    Professional Associations
          a)    Which ones - executive positions held?
          b)    Other related information.
)
          c)    Teaching positions - publications - lectures - consulting work.
                                                                                           Page 2


7.   Expert Witness at Trials
     a)    How frequently have they testified?
     b)    Has it been for both .sides or only one?
     c)    Are the cases they testified in reported?
8.   Experience in the Specialty or Area of Expertise
     a)   Types ofthings usually done
     b)    How often?
     c)    Types of tests?
     d)    How many annually?
     e)    How many over the course of your career?
9.   Establish that the matter for which the opinion is sought is one which they are very familiar
     with.




                             GENERAL BIBLIOGRAPHY

1.   McElhaney's Trial Notebook, 2nd and 3rd Edition by James W. McElhaney, Published by
     the American Bar Association
2.   Fundamentals of Trial Techniques, 2nd Edition by Mauet (Canadian Edition)
3.   1993 Annual Advocacy Symposium (Joint Program with the Canadian Bar Association
     Ontario and the Law Society of Upper Canada) entitled "The Expert Witness"
4.   "Litigation", The Journal of the Section of Litigation, American Bar Association
     published quarterly
5.   American Jurisprudence, "Proof of Facts" by Lawyers Co-operative Publishing




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                                                                                                     Page 3


                                         EXPERT SELECTION

                                               Do's and Don'ts

        In the 1983 Annual Advocacy Symposium, Mr. Ian Outerbridge, Q.C. presented a paper
        "Where to Find Your Expert". In that paper at ps. 3 and 4, he dealt with do's and don'ts
        concerning your expert. Under the do list, he states the following:


        1.   Check the names against the indexes of articles in the field and see whether he has written
             and what he has written;
        2.    Check other previous clients - what did he do and how well or badly;
        3.    Check other lawyers who may have used him - what kind of witness did he make;
        4.    Review his credentials, recent experience, his philosophical approach to the subject - is he a
              perfectionist, is he likely to have a favourable or unfavourable viewpoint;
        5.    His previous experience as a witness and how he may be perceived by the court;
        6.   What is he likely to charge and how much support - or what testing and research is he likely
             to require. Remember computer and research charges are usually extra;
        7.    Be sensitive to your client's perception of what is required.
)
        Thereafter, he talks about avoiding (don'ts) and states the following:


        1.    The Hired Gun who will tell you what you want to hear and say what you want said (he is
              very likely to strand you up a creek);
        2.    The regular or usual witness on the subject (whose prior testimony is probably in your
              opponent's possession for cross-examination;
        3.    The argumentative advocate (he is unlikely to be believed);
        4.    The egoist who can never make a mistake (and worse still will never admit it);
        5.    I used to say avoid the verbose - but that is not necessarily so - pompous verbosity is to be
              avoided - but some very bright people literally bubble over with words and ideas - but be
              very careful - make sure they are understandable by ordinary people and be
              uncompromising on this point.




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    )
1.    What is an expert       (a)     3 types                            Alan McIntyre
                              (b)     experts with 2 hats                Reg Watson
                                                                                           )
                                                                                           I


2.    Expert's duty           (a)     to the Court
                              (b)     experts that are advocates         Reg Watson

3.    Expert or Consultant (a)        the difference between them        Alan McIntyre
                           (b)        adverse inference and privilege    Reg Watson

4.    Who should the expert be
            (a)    how crucial is the issue
            (b)    what is the best I can afford
            (c)    local v. out of "town"
            (d)    experience and training                               Alan McIntyre

              (e)     balance and scope
              (f)     lawyer referrals to treating physicians            Reg Watson

5.    When should the expert be retained?
            (a)    sooner
            (b)    later (appears bought)                                Reg Watson

6.    Foundation -            (a)     experts - qualifications           Alan McIntyre
                              (b)     facts - how to provide them        Reg Watson

7.    Pre-Trial -             (a)     preparation of expert              Alan McIntyre
                              (b)     preparation of lawyer              Reg Watson

8.    Qualifications at trial - (a)   Non-jury                           Alan McIntyre
                               (b)    Jury                               Reg Watson

9.    Foundation at trial - (a)       witness order                      Alan McIntyre
                            (b)       medical reports                    Reg Watson

10.   Hypothetical question -         (a)    when                          Alan McIntyre
                                      (b)    what to include
                                      (c)    failure to use a hypothetical
                                             and should have               Reg Watson

11.   Effective Examination-in-Chief of Expert Witnesses                 Alan McIntyre

12.   Effective Cross-examination of Expert Witnesses                    Reg Watson
    1.             (b)    Experts With 2 Hats

    We are all familiar with, lay witnesses. Many of us are familiar with expert witnesses.
    Experts are often retained by lawyers to assist in assessing a situation after lithe event II has
    happened. The expert typically reviews lithe facts" and renders an opinion. The expert should
    be objective and approach his or her analysis from a dispassionate scientific point of view.

    The role of the expert witness becomes blurred when the expert becomes part of lithe event II
    or its aftermath. If the expert is part of the event, he or she will be called upon to give
    evidence of fact as well as learned observation and opinion. This scenario often presents
    itself when a treating health care provider is called to give evidence pertaining to the past,
    present or anticipated future status of a patient. In such cases counsel should consider, inter
    alia, the following issues:

                   (a)    What portion of the health care provider's evidence            IS   properly
                          characterized as fact?

                   (b)    What portion of the health care provider's opInIOn is properly
                         .characterized as learned observation which may arguably be fact or
                          opinion?

)                  (c)    What portion of the health care provider's evidence will be classified as
                          opinion?

                   (d)    If the health care provider's opInIOn is based upon factual matters
                          outside the scope of the health care provider's observations, how and
                          when will you establish these additional facts in evidence?

                   (e)    Is the treating health care provider likely to be qualified as an expert in
                          matters related to a mechanism and causation of injury if these matters
                          are outside the normal scope of the health care provider's business,
                          training, experience and reading?

                   (f)    Does a treating health care provider have to be tendered as an expert
                          witness?

                  (g)     What notice requirements must be complied with?

                  (h)     Is there any practical difference between the use and effect of a doctor
                          to doctor medical report as opposed to a doctor to lawyer medical/legal
                          report?

)
2.            Expert's Duty

              (a)     To the Court

The expert's function is to render necessary assistance to the trier of fact in matters that are
beyond the scope of common experience. Expert testimony should assist the trier of fact in
understanding the scientific or technical issues involved in a case. The expert is allowed to
state opinions and conclusions if the proper factual foundation has been laid.

The Court and the parties may have different expectations of the expert witness. The expert
will have certain expectations of the Court and counsel.

The expectations of expert witnesses were recently the subject of comment by Mr. Alan T.
Snell in his article "Expert Witnesses" which appeared in the August, 1996 issue of the
Benchers' Digest. A copy of that short article is annexed.

Counsel should view the expert's duty to the Court in light of what the charge to the jury will
be. Routinely, the Court will ask that jury to question whether the expert was impartial or
whether the expert appeared to favour the party that called him or her. If the answer to first
question is no, or if the answer to the second question is yes, counsel will have effectively
negated most, if not all, of the probative value that was to be gained from the calling of the
expert in the first place.

The expert's duty to the Court should be brought to the attention of the expert witness at the
earliest possible opportunity, as the failure of counselor the expert to understand the expert's
role can lead to insurmountable problems at trial.

The expert's role should also be understood by a opposing counsel. It is possible, through
cross-examination, to use the opposing expert as a fountain of information to establish views
and theories. This may negate the expense of calling rebuttal evidence. By way of example I
have attached pages 61 to 69 of the transcript of a cross-examination of Dr. M. Nattrass. By
having Dr. Nattrass admit that he was able to speak to both sides of the controversy in respect
of the mechanism of TMJ injury, I was able to lead the opposing view of causation. In so
doing I established both· sides of the controversy and that temporomandibular joint
dysfunction could be determined by applying the principles of standard orthopedic
assessment. I later cross-examined an orthopedic surgeon who took a contrary view to that of
Dr. Nattrass on the TMJ controversy. The jury adopted the orthopedic surgeon's view. The
jury awarded no damages in respect of the alleged TMJ injury and the defence did not have to
call any of its own evidence to succeed on this issue.
    2 (a) •
               Expert Witnesses
               (Allan T. Snell,   a.c.)
               In the present climate of
               complex litigation, the use of
               expert witnesses is not. if
               indeed it ever was. merely an
               option. Experts of all fields are
               necessary to assist courts and
               litigants in assessing whether
               there has been compliance with
               the standards expected in the
               particular area concerned. It
               seems only common sense
               therefore that lawyers who seek
               the assistance of experts should
               want to treat them with courtesy
               and respect. Nonetheless, there
               is in the Law Society offices a
               small but steady trickle of
               complaints about lawyers who
               delay or fail to pay expert fees,
               call expert witnesses at the last
               minute, sometimes by subpoena
               without prior notice, and
               generally fail to acknowledge
)              that an expert almost by
               definition is busy and has other
               important demands on his or
               her time.
                Appearing as a witness is
              . almost always inconvenient and
                sometimes last minute delays,
                adjournments,        etc.    are
                unavoidable; nonetheless,
                anyone who feels that he
                or she has been treated
                inconsiderately or rudely by a
                lawyer, will have a story to tell
                and that story will reflect badly
                not only on the individual but on
                the profession. Witnesses,
                indeed all with whom the lawyer
                comes in contact in his or her
                practice, should be treated with
                courtesy and respect.




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2 (a) •
                               61


  1                             X-Exam of Dr. Nattrass           )
                                by Mr. Watson
  2

  3           cheek muscles in the action of inhaling a
  4           cigarette or smoking a cigarette.
  5       Q   Now, the pain that she described on turning her
  6           head was described as pressure, wasn't it?
  7       A   Moving the neck, yes, pressure; turning head,
  8           yes, pressure; moving the shoulders, yes,
  9           pressure.
10        Q   Then when we go down to the part where you check
11            off the yes's or no's, the bottom -- the third
12            from the bottom on t;:he first column, "Do you
13            have tension headaches?"    Answer:    "Yes."
14            Correct?
 lS       A   Correct.
16        Q   The next column, the fifth from the bottom, "Are
17            there any times when you notice that this
18            problem or pain is less or completely gone?"
19            The answer, "Yes."    Correct?
20        A   Correct.
21        Q   Now, if I could, I would like to discuss the
22            mechanism of an injury with you.      And as I
23            understand it, and please interject if I'm
24            wrong, we're going to use the rear-end
2S            situation, because that's the one we're most
26            familiar with.   So I will be the driver, I'm




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     2 (a) •
                                     62



)    1                                X-Exam of Dr. Nattrass
                                      by Mr. Watson
     2

     3             driving my car.    I get rear-ended, there is a
     4             big force from the back, correct?
     5         A   Correct.
     6         Q   My head has inertia, it remains stable while the
     7             seat pushes my back forward.    As a result, my
     8             head goes into extension?
     9         A   Hyperextension.
    10         Q   Hyperextension.    If the force is big, the theory
    11             is -- and this is how the injury occurs, as I
    12             understand it, if the force is a big one the
    13             head goes back and the jaw lags behind the head,
    14             right?
)
    15         A   Correct, because the throat muscles don't have a
    16             chance to relax and they anchor the lower jaw,
    17             so --
    18         Q   I just want to go through this so that the jury
    19             understands.
    20         A   Okay.
    21         Q   Okay.    So the theory is and this is the theory
    22             that's controversial, correct, because there is
    23             debate in the literature about whether or not
    24             the jaw even comes open; isn't that right?
    25         A   Not in the literature I read.
    26         Q   Well, I will read some to you then?




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                                 63
2 (a) •


  1                               X-Exam of Dr. Nattrass
                                  by Mr. Watson
  2

  3       A   Okay.     It must be dated.
  4       Q   It's last summer.       A force into the back.   The
  5           head goes back, your theory, the jaw lags
  6           behind.     In order to even have the possibility
  7           of a cervical -- or of a Temporomandibular Joint
  8           injury, we have to have a cervical sprain,
  9           because we have to take the tissues beyond the
10            range of motion; isn't that correct?
11        A   Right.
12        Q   So we have to have a cervical sprain as a
13            condition before we' can have a TMJ?
14        A   It can happen --
15        Q   Or simultaneously.
16        A      simultaneously.
17        Q   But you're not going to get.a TMJ without a
18            cervical sprain?
19        A   Ah --
20        Q   Because there's no way you can get into
21            extension?
22        A   Okay, I'd say simultaneously or in conjunction
23            with.
24        Q   So that's the rear-end.       Now, I grant you there
25            is some rebound in a rear-end collision, but the
26            rebound force, according to your reading, when




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                                      64
     2 (a) •


     1                                 X-Exam of Dr. Nattrass
)                                      by Mr. Watson
     2

     3             we go back forward, is much less than the
     4             initial, because things have slowed down;     isn'~

     5             that right?
     6         A   When that -- when they -- when you go into
     7             hyperflexion, which is coming back forward,
     8             the -- the mouth, which has been opened wide in
     9             two-fifths of a second and people can't even
    10             remember that, because it happens so much, slaps
    11             shut.     I've had people who have broken all their
    12             teeth off.
    13         Q   We don't have any broken teeth here?
    14         A   No, no.
    15         Q   No.
    16         A   We didn't have natural teeth, we had -- we have
    17             denture teeth.
    18         Q   And we don't have any damage to the dentures,
    19             that's all gone in before in testimony.
    20         A   Okay.
    21         Q   So would you agree with me that in a rear-ender
    22             we're back into hyperextension and then we get
    23             some rebound, direct rebound, but it's at a
    24             lower velocity when we go forward?
    25         A   Right.
    26         Q   Okay.     Let's turn it around.   And in a frontal,



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                                65
 2 (a) •


 1                                 X-Exam of Dr. Nattrass
                                   by Mr. Watson
 2

 3             if we see it, it's good to brace for it.       That's
 4             a good thing as opposed to a bad thing, we've
 5             established that, correct?
 6         A   Right.
 7         Q   In a frontal, the first thing we do is move
 8             towards the direction of the force is basic
 9             physics, correct?     The body goes forward,
10             restrained by a lap shoulder combination seat
11             belt, okay?   The whole body moves forward and
12             into the seat belt,correct?
13         A   You're talking front or back?
14         Q   I'm talking frontal collision.     I'm going
15             forward and I stop.     The car stops before the
16             body stops, right?
17         A   Right.
18         Q   So the body is going forward, so I'm into
19             flexion to start out with?
20         A   Right.
21         Q   And I'm slowing down, I'm decelerating.
22             Decelerating as my car absorbs force and
23             crushes, correct?
24         A   Yes.
25         Q   That's the theory.     And as my body tissues move
26             in towards the seat belt, I mean move forward




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                2 (a) •
                                                   66


                1                                   X-Exam of Dr. Nattrass
                                                    by Mr. Watson
                2

                3             into the seat belt and it restrains me.         So I
                4             have distance to decelerate, correct?
                5         A   Correct.
                6         Q   So when    I   move on a rebound in a frontal
                7             collision into extension, the movement back           in~o

                8             extension is at a lower velocity, that's the
                9             theory?
               10         A   That's the theory.
               11         Q   So that if I'm going to get a cervical strain --
               12                                   Just hold on here, that's the
               13             theory.
               14         Q   Now, if I have -- and this is our evidence.            If
               15             I have a headrest at the right level --
               16         A   Mmhmm.
               17         Q   -- in a high-back bucket seat, that structure
               18             behind me assists in preventing this much lower
               19             velocity rebound, right?
               20         A   Correct.
               21         Q   So that my -- the force on rebound in a frontal,
               22             isn't as much, it's less, correct?
               23         A   Correct.
               24         Q   And that's why in a frontal collision, the
               25             theory doesn't hold up or the injuries aren't
               26             serious or however you want to say it.          The


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 2 (a) •                        67


 1                                 X-Exam of Dr. Nattrass
                                   by Mr. Watson
 2                                                                 )
 3             reason that we don't see serious TMJ injuries
 4             very often in frontal collisions is because
 5             we're dealing with hyperextension on a rebound
 6             as opposed to initially; isn't that right?
 7             That's the theory anyway?
 8         A   That's the theory.    Now, I -- the individual
 9             could be different.     They could be more
10             predisposed or --
11         Q   Absolutely.
12         A   -- or less predisposed.
13         Q   That's your theory? .
14         A   Right.
15         Q   Now, when we went through this earlier on, you
16             told me that you were familiar with both sides
17             of the issue, correct?
18         A   Earlier on today?
19         Q   Yes.
20         A   Yes.
21         Q   I would like to talk about -- I realize this is
22             not your view, but this is the other view in the
23             literature.   And I'm referring to      I'm going
24             to refer to various things, let's start off with
2S             the "Oral Maxillofac Surgeon".
26         A   Maxill.



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                                           68
         2 (a) •


     1                                      X-Exam of Dr. Nattrass
)                                           by Mr. Watson
     2

     3             Q   Is that a journal that oral surgeons read?
     4             A   Maxillofacial?
     5             Q   Yes.      Is that an oral surgeon's journal?
     6             A   Yes.
     7             Q   "Head accelerations produced by forces in the
     8                 neck on the extension and flexion motion", so
     9                 that's talking about a rear-ender, right
    10                 extension and flexion?
    11             A   Yes.
    12             Q   "Within the threshold range for the cervical
    13                 spine injury will generate forces in the
    14                 Temporomandibular Joints that act in similar
,
)   15                 direction, but are of substantially lower
    16                 magnitude than the forces encountered routinely
    17                 in normal mastication."     Mastication is chewing,
    18                 right?
    19             A   Mmhmrn.

    20             Q   Is that correct?
    21             A   Yes.
    22                 Is that a yes or a no?      That's the other view,
    23                 isn't it?
    24             A   (NO RESPONSE)
    25             Q   Is that a yes?
    26             A   Yes.


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2 (a) •                       69


 1                             X-Exam of Dr. Nattrass
                               by Mr. Watson
 2

 3        Q   We have to write everything down here.
 4            Right.
 5        Q   So there are two views out there and one of the
 6            views, not your view, but the other view is is
 7            that the mouth doesn't even open and that the
 8            whole theory of the mechanism of injury is
 9            flawed, that's the other view; isn't it?
10        A   Yes.
11        Q   And we also know that other factors can lead to
12            Temporomandibular Joint problems?
13        A   Yes.
14            Poor dental hygiene, correct?   If I have a
15            history of bad teeth and loss of teeth, what
16            does that do to my mouth?
17        A   It causes the lower -- if you're losing lower or
18            back teeth, top or bottom back teeth., the lower
19            jaw, which is the moveable jaw slips backwards,
20            and to slip backwards isn't good, that's where
21            you're going to start having some trouble.
22        o   Now, Charlotte had lost upper and lower back
23            teeth
24        A   Yes.
25        o   -- before the accident?
26        A   All of her upper teeth and her lower back teeth.




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                    (b)   Experts that are Advocates (They Wear Pointed Hats)

    If an expert shows bias, is unresponsive to questions, or volunteers information that is beyond
    the scope of the question, problems can arise. The expert who trades the hat of impartial
    scientist for that of party advocate is an expert worthy of vigorous cross-examination. Often
    times, the answers obtained on cross-examination are of no real consequence as the vigor with
    which the expert witness becomes an advocate for the party that called him or her speaks
    volumes to the trier of fact about the weight to be given to the expert's evidence.

    Expert witnesses can become advocates of a client's cause in a passive or aggressive fashion.
    In the case of a treating health care provider, if a known pre-existing condition is ignored and
    a prognosis is rendered upon an assumption that is known to be false, the expert witness will
    in all likelihood be neutralized and have no credibility. By way of example I am attaching a
    cross-examination of a chiropractor. The chiropractor in this case gave opinion evidence as to
    the severity of a cervical spine injury based upon assumptions that he knew to be false. In this
    particular case the chiropractor completely disregarded cervical spine x-rays which he had
    seen· and proceeded to render an opinion that presumed no pre-existing problems and he
    attributed all of the problems that appeared on the x-ray films taken two years later to the
    accident. The dark shadow cast by this conduct in all likelihood had significant negative
    ramifications for this chiropractor's patient.
)
    Counsel should not encourage the expert to be an advocate and we should be aware that our
    interaction and communications with the expert witness can become the subject of scrutiny in
    a proceeding. All dealings with expert witnesses should be above board and all applicable
    codes of professional conduct should be honored.

    The "hatted" expert turned advocate who loses or willfully forgets part of a file or engages in
    discussions to suppress an unfavorable x-ray are a cross-examiner's delight. The proper
    handling of an expert witness is an essential element of effective advocacy.




)


    (#112563):REG
 2 (b) •                                   53



1                                           X-exam of Dr. Hamilton on Qual.
                                            by Mr. Watson
2
3                        trauma and treatment.
4                  THE COURT:               He can give diagnosis and
5                        treatment?
 6                 MR.                      Yes.

 7                 THE COURT:               Mr. Watson?

 8                 MR. WATSON:              I'd like to cross, My Lady.
 9         MR. WATSON:                   CROSS-EXAMINATION
                                         ON QUALIFICATIONS:
10                 Q     You are not a medical doctor; correct?
11                 A     That's correct.
12                 Q     You are not a radiologist?
13                 A     That's correct.
14                 Q     You are not an accident reconstructionist?
15                 A     That's correct.
16                 Q     You have not taken classes in accident
17                       reconstruction?
18                 A     No, I have not.
19                 Q     You do not have a degree in physics?
20                 A     No, I don't.
21                 Q     Chiropractic      I'm quoting from -- do you
22                       recognize this?
23                 A     No.
24                 Q     Did you go to the Canadian Memorial Chiropractic
25                       College?
26                 A     Yes, I did.




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          2 (b) •                         54




          1                                 X-exam of Dr. Hamilton on Qual.
                                            by Mr. Watson
          2

          3         Q   Would you agree with me that -- I'm quoting from

          4             your book -- "chiropractic is a natural healing

          5             method"; correct?
          6         A   Mmhmm.

          7         Q   Yes?
          8         A   Yes.
          9         Q   The word is Greek in origin.     It means treatment
         10             by hand, to bend, twist or stretch; am I
         11             correct?
         12         A   Well, my understanding of the word "chiro" means
         13             hand, and practic -- "praetor" would be one who

)        14             administers treatment by hand.
         1.5        Q   Is what you do to treat by hand and in so doing
         16             to bend, twist and stretch?
         17         A   I suppose those are elements of my treatment,
         18             yes.
         19         Q   And the thesis of the profession, if you will,
         20             is that the human body has restorative processes
         21             to maintain its natural state of health, and you
         22             assist the body's natural curative process in
         23             maintaining, restoring and hopefully improving
         24             the health for your patients; that's what you
         25             do?
         26         A   That's correct.
    ;'

)


                           ROYAL REPORTING SERVICES LTD.
                                 55
2 (b) •




1                                 X-exam of Dr. Hamilton on Qual.
                                  by Mr. Watson
2

3         Q   Chiropractic is the science and art of treatment

4             by methods of adjustment by hand of one or more

5             of the joints with several articulations of the

6             human body; correct?

 7        A   That's true, yes.

 8        Q   Are you familiar with the American Medical

 9            Association guide which relates to permanent

10            impairment ratings?     Are you trained in that?

11        A   No, I'm not.

12        Q   You have no training in collision analysis?

13        A   No.
14        Q   Not trained to treat emotional disorder?
15        A   Well, only insofar as primary contact
16            practitioners are trained to deal with people's
17            emotions.     I mean, no additional training.·
18        Q   You view it, but if it needs treatment, you send
19            it out?
20        A   Not in every case, but certainly if there was
21            some major emotional or psychological
22            disturbance, I would refer a patient to a
23            psychiatrist.
24        Q   I asked you before about disability.     I also
25            under~tand    that you don't do evaluations of
26            permanent impairment in accordance with the




                    ROYAL REPORTING SERVICES LTD.
              2 (b) •                            56



             1                                    X-exam of Dr. Hamilton on Qual.
')                                                by Mr. Watson
             2

             3                standards of the American Medical Association;

             4                is that correct?

             5          A     I'm a chiropractor from Canada so, no, I don't

              6               use the American system of permanent impairment.

              7         Q     For what?   I didn't hear.

              8         A     I'm sorry, I said that I do not use and nor am I

              9               familiar with the American rating system.

             10         Q     As I understand it, most of the orthopedic

             11               surgeons in Regina use it, so do you use

             12               something different or do you not use it at all?

             13         A     I'm not familiar with the American rating system

             14               and I don't use it.

             15         Q     Is there a Canadian system that you do use and,

             16               if so, could you please direct me to it?

             17         A     Not that I'm aware of.

             18         Q     So there isn't one you use?

             19         A     Not a specific rating system, no.
             20         MR. WATSON:               I have no further questions, My
             21               Lady.    I do have -- there will be argument on
             22               scope.
             23         THE COURT:                As I understand, he's being
             24               tendered as a Doctor of Chiropractic Medicine,
             25               and he will be testifying both as to the actual
             26               treatments and hands-on attendances with respect

         )
     /




                                ROYAL REPORTING SERVICES LTD.
         2 (b) •                               90



    1                                           X-exam of Dr. Hamilton
                                                by Mr. Watson
    2

    3                        move a certain way or lift something heavy.
    4                  MR.                      Thank you.
    5                  THE COURT:               Are you going to be very long,
    6                        Mr. Watson?
    7                  MR. WATSON:              I think I can do it in 20
     8                       minutes.
     9                 THE COURT:               Good.   Then we can relieve the
    10                       witness and keep going.
    11         MR. WATSON:                      CROSS-EXAMINATION:
    12                 Q     Just so I understand, your evidence today is
    13                       that you would expect no improvement?       Was that
    14                       your evidence today?
    15                 A     I believe I said I would expect no significant
    16                       changes in the cervical curve, but I didn't say
    17                       that I would expect no improvement of any kind.
    18                 Q     You expect a gradual improvement in your
    19                       reports; isn't that correct?
    20                 A     Right.     There would be some gradual improvement
    21                       leveling off to a plateau over a period of time;
    22                       that's right.
    23                 Q     It's not qualified in your report.      It just says
    24                       gradual improvement; right?     That's what your
    25                       expectation was?
    26                 A     I can take a look if you'd like.     I wrote it in
)



                                ROYAL REPORTING SERVICES LTD.
             2 (b) •
                                              91


    )   1                                      X-exam of Dr. Hamilton
                                               by Mr. Watson
        2

        3                  1988, so I'll just have a look.
        4              Q   January 6th, 19 -- well, you know how to find
        5                  it.
         6             A   The question in the report was "What
         7                 improvements do you expect?" and I said "Very
         8                 gradual," meaning that any improvements would be
         9                 very gradual in nature, limited in extent.
        10             Q   You expected improvement, so earlier when you
        11                 said you didn't expect any, that was wrong and,
        12                 in fact, you did expect some, albeit very
        13                 gradual; is that correct?
        14             A   Not exactly correct, no.     What I said was that I
        15                 didn't expect that there would be any
        16                 significant improvement or change in the
        17                 cervical curve.     That was the question.   But
        18                 this question in this report says would there be
        19                 any improvement in the patient's overall
        20                 condition?
        21             Q   And you thought yes?
        22             A   I don't think that there would be any major
        23                 change or improvement over time.      If there is
        24                 any improvement at all, it would be very gradual
        25                 in nature.     It would come on over a long period
        26                 of time.     That's what I said.
/
    t

                                 ROYAL REPORTING SERVICES LTD.
        2 (b) •                         92



    1                                    X-exam of Dr. Hamilton
                                         by Mr. Watson
    2

    3             Q   You ordered the x-rays from the Plains Health

    4                 Center from September the 13th of 1986, didn't

    5                 you?

     6            A   I did.

    7             Q   You looked at them?

     8            A   Yes.

     9            Q   And you wrote them up in your clinical notes?

    10            A   Yes.

    11            Q   And in your write-up, you will recall that --

    12                have a look at it      -~   you were of the view that

    13                there was already a degenerative change at C3-4

    14                and at C5-6, together with osteophytes on the

    15                posterior portions or something like that?
    16                Isn't that what your findings       we~e?

    17            A   That's correct.
    18            Q   Do you want to just run through what your
    19                findings were from the x-rays taken on the day
    20                of the accident?
    21            A   Sure.    These were x-rays that had been brought
    22                over from the Plains Hospital.         I presume they
    23                had been taken either at the time of the
    24                accident or shortly after.         They were taken of
    25                the front and sides view of the neck and one
    26                with the mouth open.         That's called AP lateral
)



                         ROYAL REPORTING SERVICES LTD.
         2 (b) •
                                          93



     1                                     X-exam of Dr. Hamilton
                                           by Mr. Watson
    2
     3                 and AP open mouth.      There was a mild left
     4                 lateral list.     The lateral view showed that the
     5                 cervical spine was alordotic; that's to say

     6                 completely without a curve.

     7             Q   But it wasn't a reverse curvature, was it?

     8             A   No, I don't believe it was a reverse curve, no.

     9             Q   Let's keep going.
    10             A   Although sometimes it's a subtle finding.
    11             Q   That's not what you said, though, in your
    12                 report.   It doesn't say "reversal of the
    13                 cervical lordosis," does it?
    14             A   It does not say that, no.
    15             Q   Okay, let's keep going.
    16             A   There was moderate degenerative changes in the
    17                 posterior aspect at C3-4 and C5-6.
    18             Q   So moderate is fairly significantly advanced
    19                 changes at C3-4, C5-6; isn't that correct?
    20             A   That's correct.
    21             Q   And those changes were there obviously the day
    22                 of the accident?
    23             A   That is true, yes.
    24             Q   And these changes take a long time to come
    25                 about?
    26             A   That's right.
)

                         ROYAL REPORTING SERVICES LTD.
    2 (b) •
                                   94




     1                              X-exam of Dr. Hamilton
                                    by Mr. Watson
     2

     3        Q   And if we throw into the hypothetical facts a

     4            rear end collision in 1969 of such force that it

    5             drove the rear end of a Buick automobile

     6            weighing 5,700 pounds into the back of the

     7            driver's seat, I suggest to you that in your

     8            experience you could maybe expect some injury

     9            from that kind of force being applied to the

    10            body; is that right?

    11        A   I   think that would be a safe assumption.
    12        Q   And for these little knots or whatever you call
    13            them in the trapezius, they could have been
    14            there before the accident of September the 13th
    15            of 1986 and there's no way for you to know?
    16        A   That's correct, I wouldn't have any way to know.
    17        Q   And you don't have any way to know what her
    18            cervical lordosis was the day before the
    19            accident?
    20        A   Well, I can sort of extrapolate that actually
    21            it's not as difficult to determine as you might
    22            think.    The time of the accident, she had
    23            absolutely no cervical lordosis.    And then two
    24            years later when I took the x-rays, some of it
    25            had returned.    So I wouldn't expect, if the
    26            initial cause of the injury was in -- what did
)


                      ROYAL REPORTING SERVICES LTD.
        2 (b) •                            95



        1                                   X-exam of Dr. Hamilton
                                            by Mr. Watson
        2

        3             you say?     1959?    '69?

        4         Q   '69.     So we have improvement in the cervical

        5             lordosis, on your evidence, between 1986 and

         6            1988; is that where we're at?

         7        A   Right.     You said that the original accident

         8            occurred -- my notes show 1969.       I was aware of

         9            that accident, by the way.       And if there was

        10            going to be improvement as a result of the
        11            injury in 1969, it should have been apparent by
        12            1986.     The cervical curve was completely absent
        13            in 1986, which is very common following an
V
I       14            accident and consistent with what I would expect
        15            to find.
        16        Q   You don't know because you don't have the
        17            information.     You can't say what the cervical
        18            curve was.     I mean, it's a mere guess what it
        19            was the day before the accident; correct?
        20        A   Well, I'm not trying to guess what it was the
        21            day before the accident.
        22        Q   All you can say is that between the time of the
        23            accident on September the 13th of 1986 and when
        24            you took your x-rays in November of 1988, there
        25            was improvement in the lordosis of the cervical
        26            spine; is that your evidence?
/
    )


                         ROYAL REPORTING SERVICES LTD.
     2 (b) •                          96



     1                                 X-exam of Dr. Hamilton
                                       by Mr. Watson
     2

     3         A   Normally what happens with a person that's been
    4              in an accident --
    5          Q   No, I want to know if that's what you just said
     6             with respect to this patient in a comparison of
     7             the '86 to the '88 x-rays?     That's the question.
     8             Please answer the question.
     9         A   With regards to this patient, she had no
    10             cervical curvature when she was seen in 1986,
    11             and she had a reduced cervical curvature when I
    12             saw her in 1988.
    13         Q   The question is was there an improvement in the
    14             cervical curvature between the date of the
    15             accident and the date you took your x-rays in
    16             1988; yes or no?
    17         A   There appeared to be a slight improvement •.
    18         Q   So the answer is yes.     Where are your films?
    19         A   I didn't bring them with me.
    20         Q   Do they still exist?
    21         A   I'm not sure.   We normally keep them for seven
    22             years and that would be more than seven years
    23             ago.
    24         Q   They're long gone, aren't they, because I asked
    25             for them and they weren't there?
    26         A   I would have to ask my staff.     If you've already
)



                     ROYAL REPORTING SERVICES LTD.
          2 (b) •                         97




      1                                    X-exam of Dr. Hamilton
                                           by Mr. Watson
     2

     3                  done that, I guess they're not.
     4              Q   Where did the referral come from?
     5              A   Pardon me?
      6             Q   I   suggest to you that the referral was from Mr.
      7                         ; is that correct?
      8             A   I   believe Mr.        did mention that I was a
      9                 chiropractor and suggested the patient see me,
     10                 yes.
     11             Q   And you endorsed the source of the referral on
     12                 your file as Mr. Jaques; correct?
     13             A   That's correct.    We normally note when a patient
     14                 mentions someone coming from another person,
     15                 yes.
     16             Q   With respect -- where are your notes with
     17                 respect to range of motion on flexion and
     18                 extension?
     19             A   There was no measurable or I should say no
     20                 largely measurable changes in cervical flexion
     21                 and extension.
     22             Q   So she had full flexion and full extension then?
     23             A   Not full, no.
     24             Q   Did you record anything --
     25             A   I   don't believe I did, no.
     26             Q   -- to show that it was diminished?
))


                            ROYAL REPORTING SERVICES LTD.
         2 (b) •
                                          98



     1                                     X-exam of Dr. Hamilton            )
                                           by Mr. Watson
     2

     3             A   No.

     4             Q   So she had --
     5             A   Notes are designed to refresh your memory of the

     6                 patient.

     7             Q   And most health care professionals only record

    ·8                 negative findings; isn't that correct?

     9             A   No, that's exactly wrong.     In fact, most health

    10                 care professionals don't record negative

    11                 findings.

    12             Q   If she was okay -- the only range of motion that
    13                 you recorded in your file was rotation?
    14             A   That was the most significant finding is the one
    15                 I recorded.
    16             Q   Is that the only range of motion that you
    17                 recorded in your file; yes or no?
    18             A   Yes.
    19             Q   Okay.     And in terms of rotation, you were of the
    20                 view that the normal rotation for the cervical
    21                 spine would be 70 degrees off the nose; is that
    22                 correct?
    23             A   Actually, the normal minimal range of motion is
    24                 70, but the range.runs from 70 to 90 degrees.
    25             Q   In your report, you say 70 is normal.        Isn't
    26                 that what you say in your report?     I think you
)


                             ROYAL REPORTING SERVICES LTD.
             2 (b) •                       99



         1                                  X-exam of Dr. Hamilton
                                            by Mr. Watson
         2

         3                 say it twice actually.
         4             A   70 is the normal minimum range of motion for the
         5                 cervical spine, yes.
         6             Q   And that's what you said in your report?
         7             A   I believe so.
         8             Q   And when she came to you the first time, she had
         9                 55 degrees each way on rotation?
        10             A   Correct.
        11             Q   And in January when you wrote your last report,
        12                 she had 65 out of a possible 70 degrees on
        13                 rotation; isn't that correct?
        14             A   Well, the maximum possible range of motion is 90
        15                 degrees.
        16             Q   Your report says 65 out of 70; isn't that
        17                 correct?
        18             A   No, I don't believe it says that.
        19             Q   Well, have a look at it.   "Cervical range of
        20                 motion measured 65 degrees bilaterally.     Normal
        21                 equals 70"; is that what it says?
        22             A   If a person had a range of motion of
        23             Q   Is that what it says in your report, witness?
        24             A   I believe it is, ¥es.
        25             Q   And that was your observation that day; isn't
        26                 that correct?
\

    )




                             ROYAL REPORTING SERVICES LTD.
         2 (b) •
                                         100



     1                                    X-exam of Dr. Hamilton
                                          by Mr. Watson
    2

     3             A   That's correct.
    4              Q   And she had flexion and she had extension almost
    5                  to the normal range, and you recorded no finding
     6                 to the contrary; isn't that correct?
     7             A   I didn't make any recording either way.
     8             Q   But you've already given evidence that she had
     9                 flexion and extension almost to the limit;
    10                 wasn't that your evidence?
    11             A   No, it was not.
    12             Q   She had flexion and extension -- you show me
    13                 what you think she had?
    14             A   Pardon me?
    15             Q   Show me how much flexion and extension you
    16                 remember?    Just show us?
    17             A   Well, with almost everybody that's been in an
    18                 accident, there is reduced flexion and reduced
    19                 extension.
    20             Q   No, I want -- you didn't -- first of all, we
    21                 know you didn't record flexion and extension.
    22             A   Right.   It would be --
    23             Q   You recorded rotation because you thought it was
    24                 significant and it was --
    25             A   Right.   It was the most significant finding.
    26             Q   So if we're five degrees off normal in January
)


                         ROYAL REPORTING SERVICES LTD.
     2 (b) •                       101



y   1                               X-exam of Dr. Hamilton
                                    by Mr. Watson
    2
    3              of 1989 on rotation, then we're somewhat less
    4              than that restricted on rotation and lateral
    5              flexion; isn't that right?    That's a reasonable
     6             assumption based on what you just said?
     7         A   You just said the same thing twice.      You said if
     8             the cervical rotation was limited, then cervical
     9             rotation would be limited.    I'm sorry, could you
    10             repeat that?
    11         Q   You recorded in your January, 1989 report that
    12             cervical rotation was limited by five degrees.
    13             It was 65 out of 70; correct?
    14         A   That is not correct.
    15         Q   Read your report to me.     It says --
    16         A   The normal range of motion in a cervical spine
    17             is from 70 to 90 degrees.
    18         Q   What did you say when you wrote your report?         It
    19             says "normal equals 70".     Is that what it says?
    20         A   The minimum normal range of cervical motion is
    21             70 degrees.
    22         Q   Is that what your report says?     Look at your
    23             report.   Tell me if that's what it says?
    24         A   My report says that 70 degrees    ~s   the minimum
    25             normal range of cervical motion.
    26         Q   And she was at 65 in January when you last saw
)

                     ROYAL REPORTING SERVICES LTD.
     2 (b) •                         102



    1                                 X-exam of Dr. Hamilton
                                      by Mr. Watson
    2

    3              her; correct?
    4          A   That's what my notes say, yes.
    5          Q   And with respect to rotation -- or with respect
     6             to lateral flexion, flexion and hyperextension,
    7              she was better off than she was on rotation
     8             because rotation was the only thing that you
     9             commented about; isn't that right?
    10         A   That's reasonable, yes.
    11         Q   Thank you.     So to sum it up, at the time you
    12             first saw her and saw the x-rays she had
    13             moderate, already existing at the time of the
    14             accident, preexisting changes and a degenerative
    15             condition in her neck; correct?    And at the time
    16             she -- is that correct?
    17         A   Well, she had some degenerative changes at C3
    18             and C4, yes.
    19         Q   That you described as moderate?
    20         A   That's correct.
    21         Q   At the time she left you, she was restricted in
    22             range of motion five degrees on rotation
    23             bilaterally and something less than that in the
    24             other planes; is that correct?
    25         A   I think I've already answered that question.
    26         Q   With a yes?
)


                     ROYAL REPORTING SERVICES LTD.
             2 (b) •                           103



    )   1                                        X-exam of Dr. Hamilton
                                                 by Mr. Watson
        2

        3              A     No~    it is not right.
        4              Q     Well, the record will show what the answer was.
        5                    Thank you, witness.
        6              THE COURT:                Re-exam?
        7              MR.                       No, My Lady.
         8             THE COURT:                Thank you, Dr. Hamilton, you
         9                   may step down, you're free to go.     Members of
        10                   the jury, you're released until 2:00.
        11             (COURT ADJOURNED AT 12:40 P.M.)
        12
        13
    )   14
        15

        16
        17
        18

        19

        20
        21
        22

        23
        24
        25

        26

/
    ~


                                   ROYAL REPORTING SERVICES LTD.
3.            Expert or Consultant?

              (b)     Adverse Inference and Privilege

                      (i)    Adverse In ference

Counsel should be aware of the fact that certain expert evidence may be essential in
establishing a claim. Failure to cal1 medical evidence can in some cases lead to the drawing
of an adverse inference: see: Tracene Hill v. The Saskatchewan Health Care Association,
Q.B. Judgment 96165, an unreported decision of Madam Justice EJ. Gunn dated April 23,
1996.

                      (ii)   Privilege

If an expert is going to be called to give evidence it is highly likely that the "litigation
privilege" that may have once attached to the IIworking product" wil1 be lost.

Attached is a recent Rule 215 Motion, supporting Brief and Order in respect of an application·
I recently made to obtain production of the working product exchanged between opposing
counsel and his expert witnesses. Production of the working product assists greatly in
preparing for trial and in avoiding disclosure problems and problems encountered in cases
where reports are altered along the way. A copy of a recent professional conduct ruling in
respect of medical reports which appeared in the August, 1996 Benchers' Digest is also
annexed.

In order to verify the integrity of the facts that are obtained from non-party sources, counsel
may also wish to consider a Rule 236 application to obtain the relevant documentary evidence
directly from the non-parties to the proceeding.
        3 (b) (ii) •
        CANADA                                       )
        PROVINCE OF SASKATCHEWAN                     )              Q.B. No. 2322 of A.D. 1993

                                   IN THE COURT OF QUEEN'S BENCH
    "                                JUDICIAL CENTRE OF REGINA
        BETWEEN:

                                           RHONDA LEE KAPELL,

                                                                                             PLAINTIFF
                                                     - and -

                                            KATHLEEN L. ABEL.

                                                                                          DEFENDANT

                                            NOTICE OF MOTION

                       TAKE NOTICE that an application will be made to the Presiding Judge in
        Court, at the Court House in Regina, Saskatchewan on 1uesday the 10th day of September,
        1996, at 10:00 o'clock in the forenoon or so soon thereafter as counsel can be heard on behalf
        of the Defendant for an Order pursuant to Rule 215( I)(b) and 215(2) compelling the Plaintiff
        to serve a Supplementary Statement as to Documents which identifies the documents over
        which the Plaintiff asserts a claim for privilege and which sets forth the nature of the pivilege
        claimed and orders the Plaintiff and her solicitors to produce the letters of request,
        correspondence, enclosures, memorandums, draft, amended and revised reports exchanged
        between the Plaintift's solicitors and the Plaintift's expert and/or medical witnesses who will
        be called to testify at the trial together with all other communications passing between the
        Plaintiff and/or her solicitors and these individuals.

                       AND FURTHER TAKE NOTICE that the said application will be made upon
        the following grounds:

                       1.     The Plaintift's Statement as to Documents does not specifically identify
                              by date and description, the documents over which the Plaintiff seeks to
                              maintain a claim for privilege and the nature of the privilege claimed is
                              not specified;

                       2.     The Plaintift's solicitor has advised that he intends to file the various
                              medical reports, which are annexed to the Plaintift's Pre-Trial Brief, as
                              exhibits at trial and if this constitutes a Rule 284C Notice, then the Rule

)
3 (b) (ii) •
                                                     -2-


                             284C Notice operates as a waiver of privilege and the documents that
                             the Defendant now seeks production of should be produced; and

                     3.      This matter is scheduled to proceed to trial on September 24, 1996 and
                             this information is required immediately as the Defendant is in the
                             preparatory stages of the trial.

                     AND FURTHER TAKE NOTICE that in support of the said application will
      be read the Plaintiff's Statement as to Documents, the Pre-Trial Conference Report, the
      Affidavit of Phyllis L. Norrie, the Plaintiff's Pre-Trial Brief, a draft Order, a Brief of Law and
      the pleadings and proceedings had and taken herein.

                     DATED at Regina, Saskatchewan this 4th day of September, 1996.


                                                   BALF~                          C
                                                   per:~ad.~
                                                   Solicitor for the Defendants

      TO:            LOCAL REGISTRAR

      AND TO:        S.G. SEGAL LAW OFFICE
                     Barristers and Solicitors
                     1530 London Life Place
                     1855 Victoria Avenue
                     Regina, Saskatchewan
                     S4P31'2
                     Attention: S.G. Segal

      This document wu denv.ed by:

      BALFOUll MOSS
      Barristers and SoIic:iton
      700·2103 11th AVemae
      Regina, Saskatchewan
      S4P4Gl

      whose address for service is: u above
      Lawyer in charge of file:     Phyllis L. Nonie
                                    Reginald A WatsOn
      Telephone: (306) 347·8300
      File: 497.00.003 PLN
3 (b) (ii) •


      CANADA                                     )
      PROVINCE OF SASKATCHEWAN                   )              Q.B. No. 2322 of A.D. 1993

                                IN THE COURT OF QUEEN'S BENCH
                                  JUDICIAL CENTRE OF REGINA
      BETWEEN:

                                       RHONDA LEE KAPELL,

                                                                                         PLAINTIFF
                                                 - and -

                                         KATIn..EEN L. ABEL.

                                                                                      DEFENDANT

                                  DEFENDANT'S BRIEF OF LAW

     I.             INTRODUcrION

      1.           The trial ofthis action is scheduled to proCeed on September 24, 1996.

     2.              The Defendant seeks an Order pursuant to Rule 215 which compels the
     Plaintiff to produce a Statement as to Documents in the proper fonn. The degree of
     specificity required in a Statement as to Documents where privilege is claimed has been the
     subject of comment in various cases, most notably Schlechte,. v. Schlechte,. (1989) 73 Sask. R.
     13 Sasic Q.B.

     3.             The "boiler plate" description contained in the Second Part of the First
     Schedule ofthe PlaintUfs Statement as to Documents does not identify, in any way, the
     documents over which the Plaind advances a claim for privilege. Neither has the Plaintiff
     identified the nature of the privilege claim claimed.

     4.              The Defendant is also seeking an Order which would not only compel the
     Plaintiff to specify the documents over which the Plaindclaims privilege, but to produce the
     documents exchanged between her or her solicitor and the various expert or medical
     witnesses that will be called to testify on the Plaintiffs behalf at trial. These experts and/or
     health care providers include the following:

                    (a)    Dr. S. Thackeray;
3 (b) (ii) •
                                                      -2-


                     (b)      Dr. lG. Michel~
                     (c)      Dr. S. Barber~
                     (d)      Stewart & Stewart Physiotherapy Clinic~
                     (e)      Advanced Therapeutic Massage Inc.~
                     (f)      Dr. E.W. Gherasim~
                     (g)      Dr. M. Fink
                     (h)      Gold Square Physical Therapy Clinic and its staff~
                     (i)      Dr. R.D. Parker

       n.            RULE 215 APPLICATION

       5.            Rule 215 provides as follows:

                     21 S( 1) If any party:
                         (a) neglects, refuses or objects to make discovery of documents as required
                         by Rule 212; or

                           or
                           (c) shall in such statement so filed and served have made a claim to
                           privilege in respect of documents referred to therein;· or

                     then the party so desiring production may apply to the court for an order
                     requiring the other party to make production of documents or for further or
                     better production or for inspection or detennining whether documents in
                     respect of which privilege is claimed are in fact privileged and upon such
                     application the court may make an order for production or inspection in such
                     manner as may be just.

                        (2) If upon such application any privilege is claimed for any document the
                     court may inspect such document for the purpose ofdeciding as to the validity
                     ofthe cllim for privilege and to consider all relevant evidence which may be
                     adduced tending to establish or destroy such claim for privilege.

      6.             In considering this application, the nature ofthe documents the Defendant
       seeks production ofba to be considered.

      7.             The documents to be produced from all ofthese health care providers other,
      than Dr. Parker, fall within the category of documents prepared by "health care providers".
      As trained observers these health care providers possess special knowledge and it is their
      mission to assist persons who have been injured or who suffer from disease. "Hands on"
3 (b) (ii) •
                                                   ·3 -


     health care providers obtain personal histories, listen to subjective complaints, attempt to
     make objective findings through observations and/or testing and then arrive at a diagnosis or
     prognosis while suggesting treatment plans that hopefully assist their patients in regaining
     their health. Treating health care professionals do not usually "work" for lawyers, instead they
     treat their patients and the lawyer becomes a necessary evil in the circumstances. The health
     care providers "dominant purpose" is to treat the patient. In the case at bar, none of the
     communications passed between the Plaintiffs health care providers and her solicitors have
     been produced. The numerous reports that the Plaintiff intends to file in evidence at trial were
     no doubt written in response to letters of request from the PlaintifFs solicitors. The "working
     product" that led up to the final reports, are the focus of the documents that the Defendant
     now seeks production of. The information that these health care providers relied upon in
     preparing their reports is important. The questions posed in the letter of request should be
     read together with the answers given in the medical reports in the Defendant's respective
     VIew.

     8.            The documents prepared by Dr. Parker would appear to fall within a different
     category as Dr. Parker was not a "treating health care provider" but more of an expert witness.

     9.            The documents over which the Plaintiff has not produced upon grounds of
     privilege will no doubt contain information that is relevant and probative to the issues before
     the Court. The validity ofthe Plaintift's claim for privilege should be adjudicated upon on a
     document by document basis. The four step analysis suggested in Wigmore, Evidence in
     Trials at Common Law, Vol. 8, McNaughton Revision, paragraph 2285 is as follows: .

                   (1)    The communications must originate in a confidence that
                   they will not be disclosed.

                   (2)    This element is confidentiality must be essential to the
                   iWl 8ncI satisfactory maintenance of the relation between the
                    parties.

                   (3)  The m1Itism must be one which in the opinion of the
                   community ought to be sedulously fostered.
3 (b) (ii) •                                         -4-


                      (4)     The injury that would inure to the relation by the
                      disclosure of the communications must be greater than the
                    . benefit thereby gained for the correct disposal of litigation.
                      [Emphasis in original.]

      10.             Compliance with these four conditions must be established by the Plaintiff, as
      the Plaintiff asserts privilege and seeks to have the claim of privilege upheld. The documents
      over which the Plaintiff may have validly claimed as privileged at one time, may no longer be
      privileged as a waiver of privilege occurs when a Rule 284C or D Notice is served.

      11.             If an expert report is produced pursuant to a letter of request, it is hard to
      imagine the basis upon the letter requesting the report can be claimed as privileged when the
      report received will be relied upon. The request and the report should be read together. As
      most expert reports are responsive to the letters that requested them, it is difficult if not
      outright dangerous to read and interpret an expert report without knowing what the report is
      responding to. It is also hard to imagine why a party w~iJld refuse production of the letter of
      request, unless it contained something that the party requesting the report did not want to be
      disclosed. As the basis upon which the expert report was written is essential to understanding
      its contents. the letters of request should be ordered produced in this case. The Plaintiff has
      placed her health in issue and all relevant information concerning her post-accident health,
      treatment. prognosis and information related to causal relationships should be produced.

      12.            Claims of privilege that are advanced within the category of litigation privilege
      are generally harder to maintain than claims that fall within the category of solicitor/client
      privilege. The reason for this can be found in the written judgment ofMadam Justice
      L.'Heureux-Dube, inR. Y. Gtwmr. [1991], 3 S.C.R. 263 where it is stated at pp. 296-6:

                            One ofthe primary aims of the adversarial trial process is
                     to find the truth. To assist in that search, all persons must, if
                     request, app. . before the courts to testify about facts and events
                     in the realm oftheir knowledge or expertise. This requirement -
                     some would call it duty - can be traced far back into the history
                     of the common law, and can now be found in statutory fonn in
                     the federal and provincial Evidence Acts. If the aim ofthe trial
                     process is the search for truth, the public and the judicial system,
                     must have the right to any and all relevant information in order
     3 (b) (ii) •
                                                         - 5-


                        that justice be rendered. Accordingly, relevant infonnation is
                        presumptively admissible. Exceptions may be found both in
                        statutory fonn, and in the common law rules of evidence, which
                        have developed in order to exclude evidence that is irrelevant,
                        unreliable, susceptible to fabrication, or which would render the
                        trial unfair. Courts and legislators have also been prepared to
                        restrict the search for truth by excluding probative, trustworthy
                        and relevant evidence to serve some overriding social concern or
                        judicial policy. The latter are the source of privileges for certain
                        private communications. Perhaps the most common example is
                        the solicitor and client privilege. see S%sley v. The Queen,
                        [1980] 1 S.C.R. 821.


                               The categories of privileged communication are,
                        however, very limited· highly probative and reliable evidence is
                        not excluded from scrutiny without compelling reasons. In
                        Sopinka and Lederman, The Law ofEvidence in Civil Cases
                        (1974), the author remark at p. 157:


                                 The extension ofthe doctrine of privilege consequentially
)-                               obstructs the truth-finding process, and, accordingly, the
                                -law has been reluctant to proliferate the areas of privilege
                                 unless an external social policy is demonstrated to be of
                                 such unequivocal importance that it demands protection.


                        See also R. Y. Sinder. [1954] S.C.R. 479, in particular Rand J.'s opinion at pp.
                        482-83, and Wigmore, Evidence in Trials at Common Law, McNaughton
                        RevisiOlll, wI. 8, para. 2192, at p. 73. The American case law takes the same
                        position: Trammel Y. United Stilles, 445 U.S. 40 (1980); University of
                        Pe1I1&fYlwIIIia Y. Equal Employment Opportunity Commission, 110 S.Ct. 577
                        (1990). Por the Australian position, see John Fairj'ax & Sons Ltd. Y. Cojuangco
                        (1988).164 C.L.R. 346 (HC.), and McGuinneu Y. Attomey-General of
                        Victoria (1940),63 C.L.R. 73 (HC.), especially at pp. 102-3.

          13.            Physicians Ire routinely called upon to give opinion evidence in this court. As
          experts, the role ofthe treating physician is to assist the court in understanding the nature and
        . extent ofthe Plaintiff's injuries, together with the particulars ofthe Plaintiffs recovery and
          prognosis. At times, the medical practitioner is called upon to assist the court in respect of
3 (b) (ii) •
                                                      ·6·


       legal concepts such as that of causation. Statements made by the patients to doctors are not
       privileged, nor are the doctors' finding or the information that doctors collect and assimilate in
       respect of the Plaintiffs' condition. If all of this information is producable, why should the
       Plaintiff be able to maintain a claim of privilege over certain portions of the physician's file?
       This is the questions that this Court must grapple with upon this application.

       14.          The rationale for lawyers brief and litigation privilege was referred to in
       Ottawa-Carleton (Regional Municipality) v Consumers' Gas Co. (1990) D.L.R. 4th 942 at
       948:

                      The adversarial system is based on the assumption that if each
                      side presents its case in the strongest light that court will be best
                      able to detennine the truth. Counsel must be free to make the
                      fullest investigation and research without risking disclosure of
                      his opinions, strategies and conclusions t~ opposing counsel.
                      The invasion ofthe privacy of counsel's trial preparation might
                      well lead to counsel postponing research :and other preparation
                      until the eve of or during the trial, so as to avoid early disclosure
                      of harmful infonnation. This result would be counter-productive
                      to the present goal that early settlement ofthe case. Indeed, if
                      counsel knows he must tum over to the other side the fruits of
                      his work, he may be tempted to forgo conscientiously
                      investigating his own case in the hope he will obtain disclosure
                      ofthe research, investigations and thought processes compiled in
                      the trial briefofopposing counsel ...

       IS.             The two conditions for this "working product" or "lawyers brief" privilege to
       attach are as follows:

                      First, such communications with third parties must have been
                      made specifically with existing or contemplated litigation in
                      mind and not just in the context ofgeneral legal professional
                      advice. Secondly, special regard must be had to situations where
                      the creations ofa document or report has a two-fold PurPOse, one
                      of which is to assist counsel in litigation. In such cases, it has
                      been held in England that the privilege will only attach if the
                      dominant purpose for the third.party communication was to
                      assist in possible forthcoming litigation. In Waugh v British
    3 (b) (ii) •
                                                        .7·


)                       Railways Board the House of Lords ordered production of an
                        accident report which has been commissioned for both safety
                        purposes and for the purpose of obtaining litigation advice. In
                        discussing the use of this test, Lord Wilberforce stated:

                           It is clear that the due administration ofjustice strongly
                           requires disclosure and production of this report: it was
                           contemporary~ it contained statements by witnesses on the
                           spot' it would be not merely relevant evidence, but almost
                           certainly the best evidence as to the cause of the accident. If'
                           one accepts that this important public interest can be
                           overriden in order that the defendant may properly prepare
                           his case, how close must the connection be between the
                           preparation of the document and the anticipation of
                           litigation? On principle I would think that the purpose of
                           preparing for litigation ought to be either the sole purpose or
                           at least the dominant purpose of it: to carry the protection
                           further into cases where the purpose was secondary or equal
                           with another purpose would seem to b.e excessive, and
                           unnecessary in the interest of en'couraging truthful revelation.
                           At the lowest such desirability of protection as might exist in
                           such cases is not strong enough to outweigh the need for all
                           relevant documents to be made available.

                        See also: Laxton Holdings Ltd. et al. v. loA. Madell (1988) 72
                        Sask. R. 313 (Sask. C.A.)

         16.            From a policy point ofview it is submitted that the Court has an important role
         to play in ensuring the sanctity of its process. Expert witnesses must understand their role of
         experts and lawyers must wtderstand their role as lawyers and strictly adhere to the Code of
         Professional Con~ It would be improper for a lawyer to place undue pressure upon a
         physician to write a report in a specific way or to provide inaccurate historical information for
         a physician to base a report upon.

         17.             As previously stated, the Defendant submits that the production of an expert
         report operates as a waiver of any claim of privilege that may have attached to the letter of
         request, prior to the disclosure ofthe expert report. The Defendant submits further that if the
         expert report that is eventually produced is an amended version of a report, that the earlier
         versions of the report and the letters of request for amended versi!3ns should also be produced.

)
3 (b) (ii) •
                                                    -8-

                                                                                                          )
      18.             The Defendant submits that the production of a medical report operates as a
      waiver of any claim of pnvilege that may have attached to the letter of request, prior to the
      disclosure of the medical report. The Defendant submits further that if the medical report that
      is eventually produced is an amended version of a report, that the earlier versions of the report
      and the letters of request for amended versions should also be produced.

      19.          The concept of waiver was recently discussed by Mr. Justice Gerein in
      Saskatchewan Economic Development Corp. v. Smith-Roles Ltd and The Royal Bank of
      Canada (1990) 82 Sask. R. 233 where Mr. Justice Gerein states at p. 235:

                     "What constitutes a waiver by implication?

                     Judicial decisions give no clear answer to this question. In
                     deciding it, regard must be had to the double elements that are
                     predicated in every waiver, i.e., not only ttte element of implied
                     intention, but also the element of fairness' and consistency. A
                     privileged person would seldom be found to waive, if his
                     intention not to abandon could alone control the situation. There
                     is always also the objective consideration that when his conduct
                     touches a certain point of disclosure, fairness requires that this
                     privilege shall cease whether he intended that result or not. He
                     cannot be allowed, after disclosing as much as he pleases, to
                     withhold the remainder. He may elect to withhold or to disclose,
                     but after a certain point his election must remain final.

                     see: Wigmore, supra at p. 2327

      20.            The PIainti1Ps disclosure of presumably the final version ofthe expert reports
      and the Plaintifl's intention to call the authors ofthe reports as expert witnesses at trial
      constitutes a waiwr ofprivilege. In J'QlICOIIWr Community College v. Phillips Barratt (1987)
      20 B.C.L.ll2d 289 (B.C.S.C.) where the following rationale was given in support ofthis
      proposition.

                     So long as the expert remains in the role ofa confidential
                     advisor, there are sound reasons for maintaining privilege over
                     documents in his possession. Once he becomes a witness,
                     however, his role is substantially changed. His opinions and

                                                                                 •
    3 (b) (ii) •                                        -9-


)                        their foundation are no longer private advice for the party who
                         retained him. He offers his professional opinion for the
                         assistance of the court in its search for the truth. The witness is
                         no longer in the camp of a partisan. He testifies in an objective
                         way to assist the court in understanding scientific, technical or
                         complex matters within the scope of his professional expertise.
                         He is presented to the court as truthful, reliable, knowledgeable
                         and qualified. It is as thought the party calling him says: "Here
                         is Mr. X, an expert in an area where the court needs assistance.
                         You can rely on his opinion. It is sound. He is prepared to stand
                         by it. My friend can cross-examine him as he will. He won't get
                         anywhere. The witness has nothing to hide."

                         It seems to me that in holding out the witness's opinion as
                         trustworthy, the party calling him impliedly waives any privilege
                         that previously protected the expert's papers from production.
                         He presents his evidence to the court and represents, at least at
                         the outset, that the evidence will withstand even the most
                         rigorous cross-examination. That constitUtes an implied waiver
                         over papers in a witness's possession which are relevant to the
                         preparation or formulation ofthe opinions offered, as well as to
                         his consistency, reliability, qualifications and other matters
                         touching on his credibility.

          21.            Further support for the Defendant's position can be found in Mr. Justice
          Klebuc's decision in Raina v. Riou [1994] S W.W.R. 7S2. At page 7S7, paragraph 13 Mr.
          Justice Klebuc states that all relevant material must be tendered as part ofthe practitioner's
          report and in the Defendant's respectful view the relevant material would include the
          exchange ofcorrespondence with the requesting solicitor.

          22.             The Defendant invites the Court to invoke Rule 21S(3) and review all ofthe
          "letters of request- and non-disclosed expert reports when making its ruling. It is anticipated
          that the Plaintift'i solicitor will make this material available for the court's review if it is
          requested. The Defendant submits that the Court should use its discretion to assist in a just,
          speedy and inexpensive determination ofthe suit and the reliefsought will assist in achieving
          this end.
                                                                                                          \
3 (b) (ii) •
                                                     - 10-

                                                                                                         \
                                                                                                          )
       23.           An Order similar to the order sought was recently granted by Madam Justice
       Hunter in Bateman v. Phoenix Continental Management Inc. et al. and a true copy of her Fiat
       is annexed. Relief similar to that now requested was granted by Mr. Justice Annstrong in
       Turcoane v. Schaffer et al., Q.B. NO. 5708 of 1988. A true copy of that Order is annexed.

       24              The Defendant further suggests that the costs of this motion should be reserved
       for the trial judge.


                       ALL OF WHICH IS RESPECTFULL Y submitted this 6th day of September,
       1996.


                                                    BALFOUR MOSS

                                                        ~ <::
                                                    PerC==s?t0~
                                                    Solic.itor for'the Defendant


       TO:             LOCAL REGISTRAR

       AND TO:         S.G. SEGAL LAW OFFICE
                       Barristers and Soliciton
                       1S30 London Life Place
                       18SS Victoria Avenue
                       Regina, Saskatchewan
                       84P31'2
                       Attention: S.G. Segal
    3 (b) (ii) •
                                                   - 11 -



         This document was delivered by:

         BALFOUR MOSS
         Barristers and Solicitors
         700 - 2103 11th Avenue
         Regin, Saskatchewan
         S4P 401

         whose address for service is: as above
         Lawyer in charge of file:    Phyllis L. Norrie
                                      Reginald A. Watson
         Telephone: (306) 347-8300
         File: 497.00.003 PLN




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    3 (b) (ii) •


          CANADA
          PROVINCE OF SASKATCHEWAN                           Q.B. No. 5708 of 1988.

                                   IN THE QUEEN'S BENCH
                                 JUDICIAL CENTRE OFREGlNA
          BETWEEN:

                       CONSTANTIN TURCOANE and MARUANA TURCOANE,
                                                                 RESPONDENT
                                                                  (pLAINTIFF),

                                           - and-

                                      WADE SCHAFFER.,
                                                                   APPLICANT
                                                                (DEFENDANT).
                                            -and-

                   REGINA SPORTS & PHYSIOTHERAPY CLINIC, GORDON PULLAR,
                     UNIVERSITY PARK MEDICAL CLINIC, DR. MAL NATRASS,
                      DR. ROBERT JOYCE, DR. V GOMES and DR. ALLAN ROSS
                                                      .         RESPONDENTS

          CANADA
          PROVINCE OF SASKATCHEWAN                           Q.B. No. 1956 of 1990.

                                   IN THE QUEEN'S BENCH
                                 JUDICIAL CENTRE OF REGINA
          BETWEEN:

                                    MAlWANA nJRCOANE,
                                                                 RESPONDENT
                                                                   (pLAINTIFF).

                                            - and-

                       LESLIE N. WORRALL and CLASSIC ENTERPRISES INC.,
                                                                    APPUCANT
                                                                (DEFENDANT).
                                            -and-

                     UNIVERSITY PARK MEDICAL CLINIC, DR. MAL NATRASS,
                      Oil ROBERT JOYCE, DR. V GOMES and DR. AU-AN ROSS
                                                                RESPONDENTS
                                                                                               \
3 (b) (ii) •
                                                   ·2·



       CANADA
       PROVINCE OF SASKATCHEWAN                                        Q.B. No. 121 of 1991.

                                     IN THE QUEEN'S BENCH
                                  JUDICIAL CENTRE OF REGINA

       BETWEEN:

                                     MARUANA TIJRCOANE,

                                                                          RESPONDENT
                                                                           (PLAINTIFF)•

                                               • and-

                             Wll..LIAM ERMEL and MARLENE STONE,

                                                                            APPLICANT
                                                                         (DEFENDANT).

                                                   -and-

                   UNIVERSITY PARK MEDICAL CLINIC, DR. MAL NATRASS,
                    DR. ROBERT JOYCE, DR. V GOMES and DR. ALLAN ROSS

                                                                         RESPONDENTS

       BEFORE TIlE HONOURABLE                  )           THURSDAY, TIm 14TH DAY
       Mr. Justice a.H.M. Armstronl            )
       IN CHAMBERS                             )           OF MARCH, 1996.



                     Upon the IppliCltion ofReainaid A Watson, counsel on behalfofthe
       Defendants and upon ~n. counsel on behalf oftile pll'ties and upon havina read the
       pleadings and proceedinas had and taken herein, all filed:

                    IT IS HEREBY ORDERED as follows:
3 (b) (ii)                                           -3-


                      1.    The solicitors for the Plaintiff, Constantin Turcoane, shall. forthwith
                      produce copies of the following documents to the Defendants' solIcitors:

                             166 - August 19, 1988 • Copy of letter from S.G. Segal Law Office to
                             Dr. Loguinoff

                             167 - August 30, 1988· Letter from Dr. G. Loguinoffto S.G. Segal
                             Law Office

                             168· September 8, 1988· Copy oftetter from S.G. Segal Law Office to
                             Dr. B. Bachynski

                             169· February 22, 1989· Copy of letter from S.G. Segal Law Office to
                             Dr. Loguinoff

                             170· March 7~ 1989· Note from Dr. Loguinoffto S.G. Segal Law
                             Office

                             171 • march 13. 1989· Copy ofl~ from S.O. Segal Law Office to
                             Orthopedic Department, Medical and Dental Building

                             173 • October 24. 1989· Copy of letter from S.O. Segal Law Office to
                             Dr. Loguinoff

                             174· November 13, 1989 - Letter from Dr. O. Loguinoffto S.O. Segal
                             Law Office

                             175 - October 3, 1991 • Copy ofletter fiom S.O. Segal Law Qffice to
                             Regina Sports & Physiotherapy Clinic

                             176 - December 9, 1991- Copy ofletter fi'om S.O. Segal Law Office to
                             Dr. Lopinoff

                              177 - March 23, 1992· Letter from Dr. A Verdejo to S.O. Segal Law
                             Office

                              178 - November 27, 1991 - Copy ofletterfiom S.G. Segal Law Office
                              to Regina Sports & Physiotherapy Clinic

                      2.    The soliciton for the Plaintiff, MarijllUl TUI'COIIle, shalt forthwith
                      produce copies ofthe following documents to the Defendants' soliciton:




       (lI92692):UO
3 (b) (ii) •
                                             ·4·


                       250· August 19, 1988 • Copy ofJetter from S.G. Segal Law Office to
                       Dr. Duguid

                       251 • September 9, 1988 • Letter from Dr. D. Duguid to S.G. Segal Law
                       Office

                       252· January 30. 1989· Copy of letter from S.G. Segal Law Office

                       253· April 12. 1989· Copy of letter from S.G. Segal Law Office to Dr.
                       R. Joyce

                       254· November 23. 1989· Copy of letter from S.G. Segal Law Office
                       to Dr. R. Joyce

                       255· December 18.1989· Letter from Dr. Joyce to S.G. Segal Law
                       Office

                       259 - January 19. 1990 - Copy of letter from S.G. Segal Law Office to
                       Dr. R.Joyce

                       260 -January 22,1990 - Copy of letter from S.O. Segal Law Office to
                       Dr. M. Nattrass

                       261 - February 24, 1990· Letter from Dr. Joyce to S.O. Segal Law
                       Office

                       262 - April 2, 1990· Copy of letter from S.O. Segal Law Office to Dr.
                       R.Joyce

                       263 - March IS, 1991 - Copy of letter from S.O. Segal Law Office to
                       Dr. M. Nattrass

                       264 - March IS, 1991 • Copy of letter from S.O. Segal Law Office to
                       Dr. R.Joyce

                       266 - March 21, 1991 • Letter from Dr. Joyce to S.G. Segal Law Office

                       267 - March 22, 1991 • Copy ofletter from S.O. Segal Law Office to
                       Dr. I.. Joyce

                       269· November 15,1993· Copy of letter from S.O. Segal Law Office
                       to Dr. I.. Joyce



        (192692):110
    3 (b) (ii) •
                                                      - 5-


)
                         AND IT IS FURTHER HEREBY ORDERED that the following doctors and
          health care institutions shall produce to Reginald A. Watson of the Balfour Moss law finn, at
          this expense, copies of all radiology and imaging films, radiology reports and other health
          records which are in their possession and pertain to either of Constantin Turcoane and
          Marijana Turcoane:

                                 (a)   Gordon Pullar
                                 (b)   Regina Sports & Physiotherapy Clinic
                                 (c)   Dr. V. Gomes
                                 (d)   Dr. Mal Nattrass
                                 (e)   Dr. Robert Joyce
                                 (f)   University Park Medical Clinic

                           ISSUED AT Regina, Saskatchewan this 14th day of March, 1996.
                                                                  . G. WALKER
                                                                  : AlOY LOCAL
                                                     LOCAL REGISTRAR




           ('92692):1lEO
3 (b) (ii) •




      CANADA                                          )
      PROVINCE OF SASKATCHEWAN                        )              Q.B. No. 2322 of A.D. 1993

                                     . IN THE COURT OF QUEEN'S BENCH
                                         JUDICIAL CENTRE OF REGINA
      BETWEEN:

                                           RHONDA LEE KAPELL,
                                                                                              PLAINTIFF
                                                     - and -

                                             KAnn.EEN L. ABEL.
                                                                                           DEFENDANT

      BEFORE THE HONORABLE                            )      FRIDAY, THE 13TH DAY OF
      Madam Justice C.L. Dawson                       )
      IN CHAMBERS                                     )      SEPTEMBER, 1996.

                                                     ORDER

                    Upon the application of Reginald A. Watson, counsel on behalf of the
      Defendants and upon hearing Reginald A. Watson on behalf of the Defendant and upon
      hearing Sid Segal on behalf of the Plaintiff and having read the pleadings and proceedings
      had and taken herein, all filed:

                        IT IS HEREBY ORDERED:

                        1.      That the Plaintiff shall produce to the Defendant's solicitors, copies of
                        all communications not previously so produced that have passed between her
                        solicitor and the following persons:

                               (a)     Dr. J.G. Michel;
                               (b)     Gold Square Physical Therapy Clinic;
                               (c)     Dr. E.W. Gherasim;
                               (d)     Dr. S. Thackeray;
                               (e)     Dr. R.D. ParkerlHealthserv;
                               (f)     Stewart & Stewart Physiotherapy Clinic;
                               (g)     Advanced Therapeutic Massage Clinic;
                               (h)     Dr. S. Barber;
                               (i)     Dr. M. Fink




      (tit I086'):REO
    3 (b) (ii) •
                                                         ·2·


)                          including copies of all correspondence, enclosures, draft reports, amended
                           reports and final reports and including the documents listed as numbers 226,
                           227,228,229,230,232,234,237,238,240,241,243,245 and 246 in the
                           Plaintiff's Amended Statement as to Documents.

                           2.      That the Plaintiff shall produce such documents to the Defendant's
                           solicitors on or before September 16, 1996.

                           ISSUED at Regina, Saskatchewan this 13th day of September, 1996.

                                                                        . ,. ..
                                                                              .




                                                        LOCAL REGISTRAR




)




)
           (#II086'):REO
               Professional Conduct                         Claim for iOSS of Income. The repon
3 (b) (ii) •                                                stated that the plaintiff did not
               RUlings                                      suffer a loss of income but that
                                                            fluctuations in income were due to
               (A. Kirsten Logan)                           his choice not to accept full-time
               The mandate of the Ethics                    employment at one of his clients.
               Committee is to make rUlings on              The report then said, uThis
               questions of professional ethics for         decision was not a result of the
               the guidance of the profession. The          accident." Lawyer Y asked the
               rulings given by the Ethics                  expert to remove that sentence
               Committee relate to the ethics of            and the expert did so.
               particular situations and are not
               determinations of the legal issues           Lawyer Y complained about
               which arise from those situations.           Lawyer X's conduct. Lawyer X
                                                            responded and indicated that his
                                                            conduct was no different than that
               Advertising· Coupons
                                                            of Lawyer Y.
               The Ethics Committee has ruled
               that providing coupons for a free            Ruling:
               one-half hour initial consultation as
               opposed to coupons for specific              The Committee reviewed the
               services or price reductions is not          decision in the Vancouver
               a violation of the marketing rule.           Community College case, 29
                                                            Construction Law Reports, 268 at
               Changing Experts' Reports                    page 285 (B.C.S.C.) which states
                                                            that it is not improper for an expert
               Facts:                                       to edit or rewrite reports, however,
               Lawyer X acted for the plaintiff in a        it is "Qf the utmost importance in
               personal injury action. Lawyer Y             both the rewriting and consultation
               acted for the defendant. A medical           processes referred to that the
               report was requested by Lawyer X             expert's independence, objectivity
               from the plaintiff's doctor. In the          and integrity not be compromised".
               report that was received, the doctor         Counsel may advise or comment
               stated inter alia, "In conclusion,           on "statements concerning factual
               one must emphasize that the                  hypothesis, their evidentiary
               symptoms that [the plaintiff] is             foundation, the definition of
               experiencing are strictly subjective         issues...". It is the opinion of the
               and that clinically, I have found very       Ethics Committee that Lawyer X's
               little with [the plaintiff) at the time of   request to the doctor to change the
               examination." Lawyer X wrote to              medical report went to the
               the doctor requesting that he
                                                            substance of the doctor's opinion
               remove that paragraph on the
                                                            and therefore was improper. The
               basis that it "would not be helpful to
                                                            Committee would have directed
               our client in terms of SGI's
                                                            that the matter be referred to
               assessment of [the plaintiff's] claim
                                                            Discipline, however, did not do so
               and as such we would appreciate it
               if you could simply delete that              because Lawyer X had raised the
               paragraph from your report."                 matter at trial. With regard to
                                                            Lawyer V's request to the expert to
               At trial, Lawyer X raised with the           change the report, the Committee
               witness the issue of the report              was of the opinion that the
               having been changed. The witness             statement was one that the witness
               testified that he had changed his            was not entitled to make nor was it
               report at X's request.                       key to the report and therefore
               Lawyer Y retained an expert to give          there was nothing wrong with the
               a report regarding the plaintiff's           suggested change.
     4.             Who Should the Expert Be?
')
                    (e)    Balance and Scope

     It is often comforting to retain an expert who has testified "for both sides". It is also
     somewhat re-assuring to retain experts that do not always give you the opinion that you are
     looking for. We should expect to receive unfavorable opinions on occasion as we all act for
     the party likely to lose on occasion.

     The expert's reputation among his or her peers and a review of the expert witness's transcripts
     from earlier proceedings are useful tools in the selection process.

     The issue and scope of a witness's expertise should be discussed and delineated at the earliest
     possible opportunity. Counsel must exercise independent judgment and carefully consider the
     expert's qualifications when determining the scope of the testimony to be presented. This
     decision is of extreme importance as you can be left with a serious hole in your case if the
     scope of the expert's testimony is curtailed in the qualifications phase of the examination. The
     question of scope often arises when dealing with massage therapist, physiotherapists and
     chiropractors. It is common place for lawyers to request these types of individuals to provide
     evidence with respect to causation, prognosis, impairment or disability. Some of these topics
     may be beyond the witnesses expertise.

 )                  (I)    Lawyer Referrals to Treating Physicians

     Lawyers should not be in the business of providing medical advice or treatment to clients. I
     am personally of the view that it is improper for a lawyer to manage the medical care of a
     client. Clients should be at liberty to seek out their own treating physicians and the physicians
     should make appropriate referrals. The intervention of a lawyer into the man~gement of a
     client's medical affairs often leads to embarrassment for the lawyer and prejudice for the
     client.




 )
5.             When Should the Expert be Retained?
                                                                                                      )
               (a)     Sooner or Later?

We have to be able to select and use expert witnesses effectively if we are going to practise in
the courts.

Expert testimony is required to assist the trier of fact in understanding technical and complex
matters that are beyond their ordinary experience. Not all cases require experts.

In appropriate cases, it is a good idea to hire the expert or at least a consultant in the early
phase of the action. We should not assume that we know what facts are important and the
retention of an expert or consultant early in the process will often assist in the investigation
and securing of the evidence in the discovery process.

In professional negligence case you will have to call an expert to establish the standard of
care.

In some US jurisdictions there is a requirement to file a declaration of merits from a
professional in the field which establishes a prima facie breach of the standard of care in
professional negligence actions. Regardless of whether or not this is a requirement, there can
be little doubt that it is a good idea. I would venture to say that in most medical malpractice
cases, the Plaintiffs solicitors do not obtain an opinion with respect to the standard of care
until after the Examinations for Discovery or the Pre-Trial Conference. This often results in
much wasted time, effort and money on everyone's part.

In cases where accident reconstructionists are called to give :evidence, the accident
reconstructionist who has had the opportunity to inspect the damaged vehicles prior to their
destruction and to attend at the scene of the accident at the time of or shortly after the accident
is placed in a superior position to one who has not had this opportunity. Likewise, a medical
expert may have an advantage in actually examining the patient as opposed to rendering an
opinion upon hypothetical facts related to a hypothetical patient.
6.             Foundation

               (b)    Facts - How to Provide Them

In most cases, an expert's opinion is premised upon hypothetical facts. The facts upon which
the opinion is premised must be in evidence for the opinion to be of any value. If the facts
upon which an opinion is based are not in evidence, the opinion evidence should be
considered inadmissible, as it is moot and of no probative value.

Where facts are disputed, the opinion should be based upon a hypothetical question that
assumes hypothetical facts to be true.

In a case where an expert witness wears two hats, such a treating physician, the expert can
give evidence based upon first hand knowledge or based upon a combination of the first hand
knowledge and a hypothetical question. The facts contained within the hypothetical question
will have to be established through a witness other than the physician. It is difficult for
lawyers to know which facts are important for the purposes of the expert witness and it is also
difficult to know the form in which information should be provided to the expert. Is it proper
to provide a prospective expert with a transcript from an Examination for Discovery?

In medical situations, the safest method of providing information to a treating physician is to
have the treating physician obtain the patient history from the patient as opposed to the
lawyer. Lawyers should be weary of providing physicians with patient histories that are
inaccurate or which 'overstate the facts: see: Turcoane v. Schaffir et at. an unreported
decision of Mr. Justice Armstrong dated August 22, 1996, Judicial Centre of Regina, pages
24 to 26 annexed.

If the expert report recites hearsay solely for the purpose of reiterating the Plaintiffs position
and if the hearsay cited is not necessary for the opinion, the hearsay should be deleted from
the report.
    6 (b) •


    Q.B.                                                           A.D. 1988
    No. 5708                                                          J.C. R.


                              IN THE QUEEN'S BENCH

                           JUDICIAL CENTRE OF REGINA


    BETWEEN:

               CONSTANTIN TURCOANE and MARIJANA TURCOANE


                                                                 PLAINTIFFS
                                      - and-


               WADE SCHAFFER

                                                                DEFENDANT
    AND

    Q.B.                                                           A.D. 1990
    No. 1956                                                          J.C. R.


                              IN mE QUEEN'S BENCH

                           JUDICIAL CENTRE OF REGINA


    BETWEEN:

               MARDANA TURCOANE

                                                                  PLAINTIFF
                                      - and-


               LESLIE N. WORRALL and CLASSIC ENTERPRISES INC.

                                                                DEFENDANTS
    AND




\
     6 (b) •
                                                   - 24 -


')        repositioning resulted in the upper and lower teeth not meeting properly (or had they
          never met properly?). So teeth had to be moved. She was fitted with braces which,
          as it turned out, she had to wear for three years all but four months and over which
          period she attended 80 times at Dr. Nattrass's office for checking and adjustments.
          When this was over and the braces removed she was given a new splint which she
          was told to wear overnight, every night, for life. In all, she had 89 visits to Dr.
          Nattrass's office.


                      There was no evidence called to contradict the diagnosis of TMJ although
          the whole idea of there being such a thing was questioned. Neither was there any
         questioning of the treatment such, for example, as whether the problem might not
         have corrected itself if given a little time.   The plaintiff, in her testimony, seemed
         to suggest that there was alternative treatment about Which she had learned from Dr.
         Gherasim sometime after treatment began but for which she would have to go
         someplace else in Saskatchewan and had not been able to find the time. This was not
         gone into.


                      The question then is what caused the TMJ? Dr. Nattrass had given the
         opinion that it was caused by the cumulative effect of the three accidents-May 4,
         1988; May 17, 1989, and January 12, 1990. However, there was nothing in Dr.
         Nattrass's notes to indicate that he even knew the plaintiff had. anything but one
         accident and that being the May 4, 1988, accident-the only one about which the              *
         plaintiff told him apparently before Mr. Segal, counsel for the plaintiff, in a three and
         one-half page letter to Dr. Nattrass under date January 22, 1990, told Dr. Nattrass of
         the three accidents. Mr. segal went into considerable detail reciting (with much
         exaggeration and some absolute errors) what was claimed to be injuries suffered and
         difficulties encountered as a result of these accidents. Then in the same letter he said:


)
6 (b) •

                                                 - 25 -


                  If possible we would request that you include. your
                  professional opinion on which (or perhaps all) of the
                  subsequent .MV A's precipitated the TMJ difficulties. In
                  addition, please include a summary of your treatment plan
                  including its duration and anticipated cost. If causation
                  iflsic] clearly MVA-related we should be able to get S.G.I.
                  to cover your costs directly.
                                                                                                   .....
     As stated, Dr. Nattrass found cause in all three accidents.


                  Dr. Nattrass, in cross-examination, agreed that he really did not know
     which accident caused the TMJ. And he cannot really say if any of them or all of
     them caused the TMJ. He can only say that it was trauma much more likely than not.


                  Counsel seemed concerned to show whether Dr. Nattrass learned of the
     three· accidents   fro~   the plaintiff or Mr. Segal. If the plaintiff told Dr. Nattrass of
     the three accidents, she did not on her first visit which was, as mentioned, just three
     days after the accident which had occurred on January 12, 1990. Regardless of what
     else it may indicate it has to say something about how serious she, at the time,
     thought the accident of January 12, 1990, really was.


                  Much more important to this case than whether Mr. Segal or the plaintiff,
     or both, told Dr. Nattrass about the three accidents is what neither, and more
     particularly Mr. Segal, told Dr. Nattrass. Dr. Nattrass was not told about the first
     four motor vehicle accidents, particularly the two in January, 1988, that the plaintiff
     had experienced.· Nor was Dr. Nattrass told about the fact that the plaintiff had
     always had a bite problem and back in 1983 had been told that to correct the bite
     problem it would be necessary to break her jaw and reset it. This she never did have
     done.




                                                                                                           /
        6 (b) •
                                                     - 26 -


    )                    The fact that Dr. Nattrass gave his opinion that the plaintiffs TMJ
            problem was caused by the cumulative effect of three accidents can be taken to mean,
            I trust, that a cause of TMJ can be the result of cumulative effects. Accordingly, I
            conclude that the TMJ is the result not of just the three accidents but of the plaintiff
            naturally having an incorrect bite, of all seven accidents that she experienced, and a
            mixture of other things such as clenching and grinding of her teeth which went on at
            one time. In cross-examination as to whether she had been hit in the face with a
            baseball in 1990, she said she could not remember, that she had probably been hit
            many times. By the time of the accident of May 4, 1988, the plaintiffs TMJ situation
            was analogous to a "crumbling skull" with the cause accumulating. The plaintiff said
            on Dr. Nattrass's questionnaire that she was experiencing "clicking and popping"
            occasionally before the January 12, 1990,         accid~nt.   Her condition was not
            asymptomatic. The problem is to quantify the responsibility among the many causes           i
            involved.


                        There is no way to rationally determine the contribution of the first
            accident as compared to the second and so on, nor of the factors other than
            automobile accidents. It is necessary to be fairly arbitrary. But I think it reasonable
        ... to attribute 75 % of the cause of the TMJ to factors other than the three accidents in
            question.   The May 4, 1988, accident is responsible for 15 % and the other two
            accidents 5 % each.                                                                        :¥'.


                        Dr. Joyce said that over the years he treated the plaintiff she, from time
            to time, got temporary relief; from time to time there was improvement noted and
            then from time to time she would revert to previous problems. Something would
            exacerbate things. The course of treatment confirms this scenario. Then he was
            questioned about an examination he had done of the plaintiff on November 22, 1993.


    )
/
7.              Pre-Trial

                (b)     Preparation of Lawyer

Apart from serving the requisite Rule 284C and 284D Notices before the Pre-Trial
Con ference, the party proposing to tender the expert witness should take the time to
understand the report in its entirety. In some cases a glossary containing definitions of
technical terms is of assistance to all concerned.

You should also take the time to understand the reports that are filed against you at this stage
of the action. If you need assistance to understand the reports, you should get it before the
Pre-Trial Conference.

You may also wish to consider the issue of the admissibility of the expert report at this stage
of the proceeding. The expert testimony should be excluded if it is not necessary and the
admissibility of hearsay portions of a report should be carefully considered.

In R. v. Mohan, [1994] 2 S.C.R. 9 the Supreme Court of Canada explained that evidence
which is logically irrelevant may be excluded if its probative value is overborne by its
prejudicial effect, if it involves an inordinate amount of time which is not commensurate with
its value, or if it is misleading in the sense that its effect on the trier of fact, particularly, is out
of proportion to it reliability. The Supreme Court went on to say that "there is danger that
expert evidence will be misused and will distort rather than facilitate the fact finding process",
Ibid. at p. 21.

If you understand the experts' reports and the admissibility issues, you will be weB on the way
to making an effective presentation at trial.
    8.             Qualifications at Trial
)
                   (b)    Jury

    In a jury trial it is of utmost importance that you take the time to show the jury the extent of
    the qualifications of your expert witness in the particular field in which he or she will be
    tendered to give evidence. The scope of the testimony which you intend to elicit upon
    examination-in-chief should determine the focus of the qualifications that you need to lead in
    evidence. Counsel should take the time to have the expert explain what the relevant
    qualifications mean. Counsel should engage the witness and appear interested in the
    qualifications phase of the examination. It is probably a bad idea to simply have your witness
    recite his or her qualifications from start to finish without interruption. The expert should not
    appear rehearsed.

    One should be weary of opposing counsel's consent to admit an expert witness's
    qualifications. Such admissions may be made in order to gain a tactical advantage by having
    the examining counsel move on with. the substance of the expert's testimony.

    The exact scope of the area of expertise should be specifically identified after the
    examination-in-chief of qualifications and this practice will assist in assuring that the cross-
    examination on qualifications is focused upon the specific area in which the expert is
    tendered.
)




)
9.            Foundation at Trial

              (b)     Medical Reports

Section 32 of The Saskatchewan Evidence Act provides as follows:

              32(1) Any professional report purporting to be signed by a duly
              qualified medical or chiropractic practitioner or dental surgeon;
              licensed to practise in any part of Canada is, with leave of the judge or
              court, admissible in evidence in any action without proof of his
              signature or qualifications or of his being licensed.

                (2) Where a duly qualified medical or chiropractic practitioner or
              dental surgeon, has been required to give evidence, viva voce, in an
              action and the judge or court is of opinion that the evidence could have
              been produced as effectively by way of a professional report in writing,
              the judge or court may order the party that required the attendance of
              the medical or chiropractic practitioner or dental surgeon, as the case
              may be, to pay as costs therefor such sum as he or it deems
              appropriate.

The case most often referred to in respect of section 32 and the tendering of medical reports is
Haines v. Riou, [1994] 5 W.W.R. 753 (Sask. Q.B.). Section 32 medical reports require a
Rule 284C Notice to be served. The requirements of section 32 and Rule 284C and Rule
284D should be strictly complied with to avoid problems at trial.

The admissibility of the contents of medical reports should not be taken for granted. The
scope of the contents of a medical report is no greater than the scope of the testimony that
could be given by the report's author in evidence at trial. Medical reports that have been
written by or substantially crafted by lawyers are reports that should be of great concern. You
should be weary of the method and manner in which the report has been obtained.

Medical reports have no personality and if they are filed by one party and if the author is
cross-examined by the other, a tactical advantage may accrue to one side or the other.

The failure of counsel to keep the contents of the report within admissible bounds may
operate to the prejudice of the party that wishes to rely upon the report if the author is not
available to testify.
    10.            Hypothetical Question
)
                   (c)    Failure to use a Hypothetical and Should Have

    Hypothetical questions should be used far more than they are.

    Ten or fifteen years ago hypothetical questions were commonly used whenever expert
    witnesses were called to testify, but there has been an erosion in the usage of hypothetical
    questions over the last several years. It appears that many lawyers have become careless in
    their approach to expert evidence.

    If all of the facts of a particular case are beyond dispute or within the personal knowledge of
    the expert witness, a hypothetical question may not be required but the factual basis of the
    opinion should be clearly stated. A hypothetical question should be used in all cases where
    the facts are unclear or in dispute or where the factual basis of the opinion is in question in
    anyway.

    The use of a hypothetical question also serves to focus the attention of the jury upon the facts
    of the case in the way that the party asking the hypothetical question would like to see the
    facts established. Some counsel tend to use a hypothetical question as a form of summation.

    The failure to use a hypothetical question in the face of conflicting evidence and/or the lack of
)   personal knowledge by the expert of all pertinent facts will render the expert witnesses
    testimony useless.

     If the expert witness has relied upon information that is not before the Court, some if not all
     of his or her testimony may be rendered inadmissible by virtue of the fact that expert
     witnesses could not possibly render an honest opinion based solely upon the evidence before
    .the Court.

    A partial transcript depicting this situation is annexed. Do not let this happen to you.




)
    10 (c) •
                                    68
                                                  X-Exam of DR. FLOTRE
                                                  by MR. WATSON

               A   No, it isn't.                                          1

               Q   Is it even a topic?   Did you do any specific          2

                   directed reads on that that you can remember?          3

               A   Yes.   There was a -- there was a module on            4

                   rehabilitation, which dealt with musculoskeletal       5

                   problems.                                              6

               Q   And this would be just one segment then of one         7

                   module?                                                8

               A   Yes.   Well, it was -- yes.                            9

               Q   You're not an accident reconstructionist?             10

               A   No.                                                   11

               Q   You don't have any training in collision dynamics?    12

               A   No.
               Q   Do you understand that -- in this particular case     14

                   you received information from various sources?        15

               A   Yes.                                                  16
               Q   Some of the information that you received was         17

                   directly from the Plaintiff?                          18
               A   Yes.                                                  19
               Q   And is the totality of the information that you've    20

                   received from the Plaintiff contained on page ten     21

                   and 11 of your report?                                22
               A   No.                                                   23

               Q   You have other sUbjective information that you        24

               A   Yes.   Page five and the top of page six are          25
)                  sUbjective information.



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                                   69
                                                   X-Exam of DR. FLOTRE
                                                   by MR. WATSON


               Q   Where am I going, page five?                             1

               A   Page five and the top of page six.    "History of the    2

                   injury and current status."                              3

               Q   Okay.   Is that the totality of that, that you           4

                   received from her?                                       5

               A   Well, if by totality you mean did I put every word       6

                   and every phrase down, no.                               7

               Q   That's as much as --                                     8

               A   It's a history that basically summarizes the             9

                   information that she gave me.                           10

               Q   Okay.   Are there notes then in addition to this?       11

               A   I didn't keep my notes for it, no.                      12

               Q   So this is your only record?                            13

               A   This is my only record.                                 14

               Q   Okay.   Now, you also received information from third   15

                   party sources that are not before the court; is that    16
                   correct?                                                17
               A   That's what I understand, yes.                          18

               Q   Now, you will be called upon      now, I want to talk   19

                   about the methodology of how you do things.      As I   20
                   understand it, and correct me if I am wrong, because    21
                   I probably will be, but the standard routine is that    22
                   we take a thorough history followed by a physical       23
                   examination, then testing, and then arrive at a         24
                   diagnosis?                                              25
\

)              A   Yes.                                                    26




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)                                               X-Exam of DR. FLOTRE
                                                by MR. WATSON

             Q   Is that the standard methodology?                       1

             A   Yes.                                                    2

             Q   You would be in the best position to render a           3

                 diagnosis if you had the fullest possible history?      4

             A   Yes.                                                    5

             Q   You have not reviewed the totality of the medical       6

                 information that's available, have you, on this         7

                 case?                                                   8

             A   I reviewed only what was sent to me, and if there       9

                 was clarification required, which I am not sure        10

                 there was in this case, I would ask for others.        11

             Q   So you have collected information from many sources,   12
                 including the Plaintiff, and you collate all of that         J
                 together with your physical examination and testing    14

                 to arrive at your diagnosis?                           15
             A   Yes.                                                   16
             Q   You will be asked today to embark upon a mission       17

                 that I will suggest to you that you are not in a       18
                 position to complete, and I'd like to discuss that     19
                 with you.   You will be asked to sever from your       20
                 memory all of the information received from all of     21
                 the other physicians that is not before the court,     22
                 and proceeding only with the information that you      23
                 received from Charlotte Bateman in collating that      24
                 with the 'results of your physical examination and     25
                 test results to arrive at a diagnosis.   I am          -<;
                                                                          i




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                                              71
                                                           X-Exam of DR. FLOTRE
         )                                                 by MR. WATSON

                            suggesting to you, firstly, that that is an improper      1
                            way of proceeding compared to the way you usually do      2
                            things; is that correct?                                  3
                        A   Yes.                                                      4

                        Q   And I am suggesting to you further that this is           5

                            something that you cannot fairly do, because having       6
                            reviewed all of that information it's impossible for      7
                            you in your mind to completely disregard it and act       8
                            only on a portion, that portion being what is on          9
                            page five and six and page ten of your report with       10
                            respect to the information you received from her.        11
                            Would you agree with me?     I suggest to you it's an    12
     \
     I.                     exercise in futility, because you have been              13

                            influenced; isn't that correct?                          14

                        A   I am unsure that that information on the other pages     15

                            is going to be a part of the whole, whether I can        16
                            deal with that I can't tell you.                         17
                        Q   You're in substantial doubt, because you're a human      18

                            being, correct?                                          19

                        A   Yes.                                                     20

                            MR. WATSON:            I have no further questions.      21
                            THE COURT:             Mr.         how do you propose    22
                                   to have this witness qualified to testify?        23

                            MR.                    As I indicated, My Lady, an       24

                                   expert in the field of medicine, and in           25
     )

/
    )'                             particular occupational medicine and disability   26




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                                            72



                                 evaluating, as he's outline in the field.                1

                           MR. WATSON:           Number one                               2

                           THE COURT:            Leading to an opinion, I take            3

                                 it, with respect to the Plaintiff's state on             4

                                 disability evaluation in particular you're               5

                                 going to be asking for his opinion?                      6

                           MR.                   Yes                                      7

                           MR. WATSON:           Number one, My Lady, my -- there         8

                                 is no disclosure even of an impairment rating            9
                                 in this case, which is a precondition to             10
                                 disability, so that.would put it beyond the          11
                                 scope of the Rule 284(d) notice.      I would also   12
" ••• ,~t, ••
                                 suggest to the Court that the Court in the           :   )

                                 process has to. be fair to the witness, and a        14
                                 witness should not be called upon to testify         15
                                 contrary to his methodology and contrary to his      16
                                 good conscience.      That is our position.   This   17
                                 is an exercise in futility.                          18
                           THE COURT:            Any further submission you wish      19

                                 to make in that regard, Mr. Jaques?                  20
                           MR.                   Well, My Lady, I am confident        21
                                 that the witness will, if he has any doubt on        22
                                 the answer to a question of his own ability to       23
                                 answer it based on the information he'S allowed      24
                                 to use, surely he'll mention that, and that          25
                                 would become clear in his answer.      He's not      ?,6




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              about to give an answer that he's not                      1

              comfortable with making, and I think we should             2
              approach it during his testimony, and if there             3
              are difficulties, well, then we'll deal with               4
              them then.                                                 5

         MR. WATSON:            My Lady, I'd like to address the         6

              Court in the absence of the witness and the                7

              jury on this one.                                          8

         THE COURT:             Members of the Jury, I am going          9

              to excuse you for a few moments.          In fact, just   10
              a moment.    I am wondering if we shouldn't               11

              adjourn them for lunch.                                   12
         MR. WATSON:            Pardon me?                              13

         THE COURT:             I am going to adjourn them for          14

              lunch I think.                                            15
         MR. WATSON:            Sure.                                   16
         THE COURT:             I am going to let the Jury              17

              members go for lunch.      1:30?   Actually I am          18
              going to let you go for lunch as well witness,            19
              if you would return at 1:30, please.                      20
              (JURY AND WITNESS EXCUSED)                                21
         THE COURT:             Mr. Watson?                             22
         MR. WATSON:            The question is should the Court        23

              allow the lamb to' be led to slaughter when in            24
              his own mind and on his own evidence he doesn't           25
              think he can do it.       I submit not.     My friend     26




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                                   74

                                                                                   \

                     didn't re-examine him on that.       I mean, his         1

                     answer was clear and supports -- now we have             2
                     evidence for our previous arguments.         Well, I     3

                     don't know what kind of a charge you would give          4

                     on this if you did allow him to testify.         You     5

                     have a witness that doesn't think he can                 6

                     testify.                                                 7

                            What is the threshold, I have never really        8

                     thought about it, but what is the threshold to           9

                     allow the opinion evidence when the person             10

                     giving the opinion evidence doesn't even think         11

                     that he's in a position to give it because the         12

                     foundation is not there.       Only half the
                     foundation is there and the house falls down.          14

                     A situation I haven't run into before                  15

               THE COURT:               Nor me.   Mr.                       16

               MR.                      Well, My Lady, I wasn't             17

                     expecting the witness to say that he would have        18
                     substantial doubt, and yet I think the same            19
                     observation is true, that the witness can be           20

                     relied upon plainly to express if he has               21

                     doubt.     He has done so already, and he will be      22

                     able to do so as he testifies.       If he has         23

                     difficulty with the question, he'll say so.            24

               MR. WATSON:              But now we're in a position         25

.J                   where we have to talk about the weight of his          "'e;




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                 opinion.                                              1

           THE COURT:             Just a minute, Mr. Watson, let       2
                 Mr.         finish.                                   3

           MR.                    That was -- I was finished.          4

           THE COURT:             Okay.                                5

           MR. WATSON:            Does the witness say I will          6

                 preface every answer with the weight that I           7

                 give to this next statement?    It's ludicrous.       8
                 Either he testifies as to what his opinion is         9
                 or he doesn't.                                       10
           THE COURT:             Based on what I have heard, he's    11

                 not going to be allowed to give opinion              12
                 evidence, Mr.            It is unfair to put         13

                 before a jury evidence which purports to be out      14
                 of the mouth of an expert which, based on the        15
                 expert's own admission, is going to be of            16
                 little to no probative value, and in this case       17
                 the prejudice, in fact, would out weigh any          18
                 possible probative value that could be given to      19
                 his evidence in terms of an opinion.                 20
                        Now, as to her attendance at his office       21
                 and he performed certain tests, and as a result      22
                 of his test he found certain things, he will be      23
                 able to testify to that limited extent, but no       24
                 opinions will flow from that.     So it will be up   25
                 to you if you want to call him.     He will not be   26
                                                                       /




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                                  76




                      qualified to give an opinion, all he can do          1

                      other than based on the actual testing that he       2

                      performed in his office.                             3

                MR.                    So he will be able to give          4

                      opinions based on the tests that he                  5

                      administered?                                        6

                THE COURT:             He will be able to say what the     7

                      results of those tests are.                          8

                MR.                    And how they should be              9

                      interpreted?                                        10
                THE COURT:             Well, I understood that he did     11

                      certain tests that said she can walk, she can       12

                      carry, she can push?                                :1~

                                                                                )
                MR.                    He also did a number of other      14

                      tests.   He describes the Work Activity             15

                      Assessment, which is sensitive to' a lingering      16

                      magnification.    He did the Maximum Voluntary      17

                      Effort Test, which is sensitive to the same         18

                      things, get your conclusions from those tests.      19

                      He did the --                                       20

                THE COURT:             The only problem is is all of      21

                      that going to be related to the medical history     22

                      he understood?   The only thing he can really       23

                      testify about is the actual physi:cal               24

                      examination that he carried out.                    25
,;              MR.                    Why would that be related to the   26




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            )


                                medical history, My Lady?     I believe it's           1
                                actually a work activity assessment, a card            2
                                test, which is analyzed by computer, and it had        3
                                zero validity errors, and The Maximum Voluntary        4
                                Effort Test is a test, as I understand it,             5
                                which involves the repetition, surreptitious           6
                                repetition of certain tasks and the graphing of        7
                                those tasks to conclude two things.      Number one    8
                                is does it involve maximum effort, and number          9
                                two, is it a conscious or unconscious                 10
                                restriction, if there is a restriction, and           11
                                he'll be expected to say that in the first one,       12
                                the work activity assessment, there were no           13

                                validity errors and in the second one that            14
                                there was some sign of a symptom magnification,       15
                                but not of a conscious symptom magnification,         16
                                and that that leads directly into his                 17
                                conclusions with respect to chronic pain              18
                                syndrome.                                             19
                           THE COURT:             That's right.   Which he can't      20

                                give.    That's exactly what it's based on, you       21
                                see, and he's not qualified to give that              22
                                opinion with respect to chronic pain syndrome.        23
                           MR. WATSON:            All he can say is I gave a test,    24

                                here's the result, and he can't interpret the         25

    I
                                results.                                              26
/




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                                                                            )
           THE COURT:              He can't interpret.   He can       1

                 simply these are the tests I gave, this is the       2

                 physical examination and these are the test          3
                 results, and that would be the extent of the         4
                 evidence he can give if you wish to call him.        5

                 This Court has a duty to professional witnesses      6

                 as well, we cannot allow them to be abused in        7
                 the stand once he's made an admission that he        8

                 really -- he really wouldn't be able to carry        9

                 out the task that was going to be asked of          10

                 him.    It's not fair to him in his professional    11

                 capacity.                                           12
                        So if you wish to call him, he can report    - ~)
                                                                       /


                 on her attendance at his office, the physical       14

                 testing that he did, the physical examination,      15
                 and his -- what the results of those were, and      16

                 he will not be allowed to go on and give            17

                 interpretive data or diagnostic evidence or         18

                 opinion evidence.       All right.                  19

                        We'll adjourn to 1:30.                       20
                 (COURT ADJOURNED AT 12:05 P.M.)                     21
                 (COURT RECONVENED AT 1:30 P.M.)                     22

           THE COURT:              Mr.           are you ready for   23

                 the jury?                                           24

           MR.                     Yes, I am.                        25
           THE COURT:              Are you going to call Dr.         ?6




           ROYAL REPORTING SERVICE LTD.
')
         12.             Effective Cross-examination of Expert Witnesses
     1
/

         As with any cross-examination, the key to success is preparation and a thorough knowledge of
         the facts. The cross-examination of an expert is sometimes an onerous and intimidating task,
         although it need not be. The cross-examination of an expert can be a most pleasurable
         experience if you take the time to develop and execute a cross-examination strategy.

         If you intend to be effective in cross-examination it is absolutely imperative that you gain a
         thorough understanding of the substance of the testimony to be tendered. You will have to
         learn alot about a small area of a new subject with which you are likely unfamiliar. I
         encourage you to rise to the challenge.

         The following possible strategies should be considered when preparing the cross-
         examination:

                         1.    Is the expert's opinion based upon facts that are in evidence?

                         2.    If there are two versions of the facts in evidence and the second version
                               of the facts will lead to an expert opinion that is favorable to your case,
                               should it be elicited on cross-examination or should you call your own
                               expert?

                         3.    Is the expert's opinion consistent with the expert's prior testimony in this
                               or other cases?

                         4.    Is the expert's testimony consistent with the literature and leading texts
                               in the area?                                     .

                         5.    Is the expert biased?

                         6.    Is the opinion offered beyond the scope of the established expertise?

                         7.    How much money is the expert being paid for his testimony?

                         8.    How regularly does the solicitor calling the expert retain that expert's
                               services? If the answer is frequently you may question the expert's
                               independence.

                         9.    Has the expert been less than candid        In   rendering his opinIOn by
                               ignoring crucial known facts?

                         10.   Was the expert unduly influenced by the method and manner in which
                               the foundation facts were presented to him?




         (#112563):REG
                11.      Is the expert flexible in his or her opinion when the hypothetical facts
                         change?

All of these questions   sho~ld   come to mind when preparing for cross-examination.

Strategies for cross-examination will vary between expert witnesses.

At the very least, the cross-examination of expert witnesses will provide you with an
interesting challenge.

              ALL OF WHICH IS RESPECTFULLY submitted to my peers this 20th day
of September, 1996.



                                               Reginald A. Watson
                                               Balfour Moss
                                               (Regina Office)




                                                                                                    )




                                                                                                    )



(#112563):REG
                                                             · . --... I




Question 1 - you want ot sue the Town of La Loche in     dal~ges
for the broken leg ... limitation?

!h~ Northern Municipa11ties Act - s. 267.1(1)(a) - one year
ana you have to serve the Statement of Claim within that one
year.
                                - and per 267.1(1)(b), you
have to give written notice of claim and injury to mayor or
clerk within 30 days of date of occurrence.




Question 2   - you screwed up ... are them saving provisions?

Yes .. section 267.1(2) (a) if you can convince trial judge that
there is reasonable excuse for failure to give notice and the
Town in not prejudiced in its defence     (but you'll probably
lose the case anyway because 113(10) relieves. town unless
there is "gross negl igence" )


Question 3 - A judge determines under section 100.02(1)(c)
that "Fluffy" is a dangerous dog and under 100.02(7) that it
has to be destroyed.  Joan comes to see you.  How long to
appeal order?

100.02(11) - 7 days,   or Fluffy goes to doggie heaven


Question 4 - it has been determmined that Buffalo Narrows had
the duty to maintain the road you bUddy was on when he slid
through the guard rail; how long to sue?

s. 113(6) (a) gives you three months to issue and serve the
claim and 113(6)(b) says you have to give notice by
registered mail to the mayor or clerk within 7 days of the
happening of the injury...   113(7) contains saving provisions
similar to 267.1 ... but note you have a tough case for a
number of reasons, among which:
1.  can't do a thing even if the guard rail was incredibly
flimsy [113 (1. 1]
2.  better establish that your broken leg got a lot worse due
to the slide down the bank [113(4)J
3.  better establish that the town knew or should have known
of the state of disrepair [113(3)]


As a general note, I think it probably goes beyond the scope
of the seminar to get into issues of causation re:the roll
down the embankment (bad guardrail or pothole) but I leave it
to the Purveyor of Perfect Knowledge (aka the host) to decide.
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Lisbility issues are not dealt with here;    a series of short
snappers on whom to sue:


Question 1 - How long to sue the City?

The Urban Municipality Act, 1984 gives one year to issue and
serve the Statement of Claim - s. 314(1) (a) ... and the notice
requirement is 14 days per s. 314(1) (b) with saving
provisions in 314(2).


Question 2 - How long to sue Joe Duffer ?

The Limitation Qf Actions Act give you two years for injury
to the person caused through negligence - s. 3(1) (d) (i)


Question 3 - How long to sue the dentist?

The Dental Profession Act, 1978 gives you one year from date
of termination of services in a action based on malpractice
or negligence - s. 57


Question 4 - How long to sue the hospital in negligence?

,The Hospital Standards Act gives you three months from the
 date the damages are sustained - s. 15

If you miss this, you can, within one year and upon seven
days notice, ask a judge for an extension - s. 15


Question 5 - How long to sue the hospital for loss of your
job?

See   nu~er   4 above (thanks to Tom Schonhoffer)
                                                                ~   •• '-"-I' \ Or/-




Question 0 - How long to sue the doctor?

The Medical Profession Act, 1981 gives you two years from the
date services terminated - s. 72
(And if you want to argue that the technicians screwed up the
X-rays, you have 12 months from the date of cessation of
service to sue a licensed medical radiation technologist in
malpractice or negligence - s. 25, The Medical Radiation
Technologists Act. )




Question 7 - how long to sue the opthamologist ... and what
Act?
Not The Optometry Act .. an optometrist prescribes corrective
lenses.
Not the Ophthalmic Dispensers Act ... that Act deals with
people grinding the lenses.
Section 2(j) of the latter Act defines an opthamologist as
one who is lkegally qualified under The Medical Profession
Act, and recognized by the College of Physicians and Surgeons
as a specialist in opthamology. So see question 5 above.


Question 8 - Don't forget to sue the lawyer (who knew all
these limitation periods, but left all the issued Statements
of Claim in his file and forgot all about serving any of
them... he was getting ready to go on a holiday)

Tom says six years under_The Limitation of Actions Act
residual catch-all phrase [so 3(1) (j]
                                                                ._-,   "'Vv~   J




question 1 - the owner of the land wants to cancel the
Agreement for Salei limitation?

The Limitation of Actions Act, s.   13 - 10 years


Question 2 - the contractor wants to start an action to
enforce the owner's trust for the projecti limitation?

The Builder's Lien Act, s. 19(1)(b) - one year from
completion or abandonment of project


Question 3 - there are,   of course, a number of lienholders;
1 imitation?

The Builder's Lien Act - s. 55(1) says it expires if it has
not been set down for trial withih two years of the date the
action was commenced.

Question 4 - The bank decides to apply to the court for an
order compelling Bud Black to pay back the monies he tooki
limitation?

The Business Corporations Act - s. 36(5) gives the creditors
two years from the date of the act complained of


Question 5 - if you can establish fraud,   does that extend any
time limitations?

The Limitation of Actions Act s. 4 says that that cause of
action, in cases of fraud, arises when the fraud was first
known or discovered ... so probably dosen't apply.
Question 6 - Suppose the contractor left an abandoned
refrigerator with the door still on it at the work site and
some kid crawled in and suffered brain damage when the door
slammed shut on him... how long to sue?

The Limitation of Actions Act s. 6 extends the running of
time for an infant until he reaches majority, or if there is
brain damamge, as long as he is unable to manage his affairs
 (assuming no personal guardian or propert::y guardian is
appointed)

The Abandoned Refigerators Act is repealed ... probably sue in
negligence and use 3'(1) (d) The Limitation of Actions Act for
two year limitation period, subject to section 4.



Question 7 - O.K .... you are going to sue the accountant.
How long do you have .. and what Act?

 The Chartered Accountants and The Certified Chartered
.Accountants Act are both repealed and replaced by ~
Chartered Accountants Act. 1986 ... who knows what the former
two Acts said; the new Act is silent.    Therefore, probably go
 under the residual 3(1)(j) in The Limitations of ~ctions Act
 (s.3(1)(j) - 6 years]

								
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