When is an Expert not an Expert?

by John McKiggan

A recent decision from the Ontario Superior Court had to ask (and answer) this questions.

In Babakar v. Brown the Babakars were injured in a motor vehicle accident. They were insured by State Farm Insurance. They applied for accident benefits under their own automobile policy. Their insurance company sent the Babakars to see a psychologist, an orthopedic surgeon and a physiotherapist for so called “independent” medical examinations.

Plaintiffs Cut Off

Based on the reports of the experts, State Farm cut off the Babakars’ accident benefits. (What a surprise).

The Babakars were forced to sue their own insurance company to try to recover the benefits that they were entitled to receive under their auto insurance policy.

How Were Experts Reports Prepared?

During discoveries the Babakars’ lawyer asked State Farm to ask their experts a number of questions about how their reports were prepared:

1. To ask Dr. Hoath whether pre-accident or other historical records were needed and if he ever made a request to State Farm for the records.

2. If pre-accident records were information Dr. Hoath thought he needed, why didn’t he request it? To ask Mr. McCready, when he had the report, if he ever considered sending such information to Dr. Hoath.

3. To ask Dr. Kadish what use he made of or what possible benefit to him Mr Diaz’ s Functional Ability Evaluation Report was given that Mr. Diaz says in his report he can’t tell you anything without the Functional Demands Analysis.

4. With respect to Farzana, ask Dr. Hoath why he didn’t have the pre-accident records of Dr. Sheikh, whether he thought they were necessary, did he ever ask for them? Did the adjuster, after having reviewed the report, think to send the records to Dr. Hoath or ask Dr. Hoath if the pre-accident reports were important?

5. Ask Dr. Dorman to confirm at page 3 (Tab 127) that his notation about bruising of her legs at the hospital was information that he received from Mrs. Babkar as opposed to otherwise.

6. Refusal – To ask Dr. Dorman if his answer in question no. 2 on page 8 of 9 of his report, if he is referencing Farzana’s right knee problem.

7. To ask Dr. Dorman why he was answering questions that he was not asked by the insurer to address.

Insurer Refuses to Answer Questions

The insurance company refused to ask the questions on the basis that the doctors were expert witnesses and discovery of experts is prohibited under Ontario’s Rules of Court.

State Farm was ordered to make the inquiries on an initial motion. State Farm appealed.

On appeal, Justice Lederer said that:

“An expert is not treated as an expert when his or her opinion is an approximate or immediate cause of the harm, loss or damage.”

In other words, because the experts’ conduct was the reason why the Babakars had been forced to sue, the experts were the cause of the loss that was the subject of the litigation. Therefore, the prohibition against discovery of experts did not apply.

Justice Lederer concluded that:

“These reports are not prepared to assist the court in understanding technical information that is outside the knowledge of the judge or jury. The information in the reports is used by the insurer to assist in determining whether the party claiming the benefit qualifies. If, as here, it is suggested that a determination that a party does not, or no longer qualifies, was made in bad faith, the basis upon which the determination was made is directly pertinent.”

I understand that State Farm has appealed.

What Does it mean to Nova Scotia Accident Victims?

This decision is going to be relevant to claims in Nova Scotia because we have recently implemented new Civil Procedure Rules which eliminates (or severely curtails) the right to discovery of expert witnesses.

I anticipate Nova Scotia courts will interpret the prohibition on discovery of experts in much the same way since our rule is based on the same rule in Ontario.

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