IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100603

Docket: M090334

Registry:
Vancouver

Between:

Jodi Evelyn Jones

Plaintiff

And

Chun Wah Ma and
Kin Shu Chau

Defendants

Before:
The Honourable Mr. Justice Ehrcke

Oral Ruling on Voir Dire #2
re:  Admissibility of Expert Report of Gerald Sdoutz

[1]            
THE COURT: In this personal injury trial, the defendant has
tendered an expert report of an accident reconstruction expert. The cover page
of the report is signed by Gerald Sdoutz, Forensic Engineer, and is dated
February 26, 2009, although it appears that that date is in error and should be
February 26, 2010.

[2]            
The plaintiff objects to the admission of the report on the basis that
it does not comply with the requirements of Rule 40A of the Rules of Court.
In particular, the plaintiff submits that the report is not the report of the
particular expert who signed it, but is rather a corporate report which
embodies the observations and opinions of several individuals, without clearly
distinguishing who made the various observations on which the opinions are
based and who engaged in the process of forming the opinions that are expressed
in the report.

[3]            
The plaintiff submits that Rule 40A does not contemplate the admission
of such corporate opinion reports and relies on the decision of Henderson J. in
Heidebrecht v. Fraser-Burrard Hospital Society (1995), 15 B.C.L.R. (3d)
189 (S.C.).

[4]            
The plaintiff points out that although the introduction to the report
states, “The undersigned is responsible for the opinions expressed in this
report,” the remainder of the report never specifies who has made particular
observations or measurements and never specifies who has formed a particular
opinion. The report is replete with sentences that use the word “we” as the
subject of a sentence, without further specifying who the “we” consists of. Moreover,
most of the sentences in the report that express an opinion are written in the
passive voice, so that no individual is identified as the author of the
opinion.

[5]            
A few examples will suffice to illustrate the problem. On page 6 the
report states:

This evidence was then surveyed
using a Sokkia Total Station and a scale diagram of the incident scene was
completed based on these laser measurements. A copy of the scale scene diagram
has been included as Appendix B for reference throughout this discussion. Once
the diagram was created the tire marks were used in order to reconstruct the
rest position of the Honda CRV.

Later on the same page the report continues:

Given that both vehicles were
travelling nominally westbound, it was concluded that impact would have
occurred at the eastern periphery of the debris field…

Again on page 8, referring to a simulation using a
computer software program called “PC-Crash,” the report states:

From these simulations it was
found that at impact the Honda was most likely travelling at 5 to 11 km/h and
the Pontiac Montana at approximately 63 to 68 km/h.

[6]            
Counsel for the defendant submitted that these are only stylistic
defects and that in fact the report in its entirety is the product of Mr. Sdoutz,
and the opinions are all his opinions.

[7]            
In order to resolve whether there was a substantive problem with the
report, or whether it was merely a question of poorly chosen language and
style, a voir dire was held, and Mr. Sdoutz was cross-examined
about the manner in which the report was prepared. From that cross-examination
it is clear that the majority of the work on the report was not done by Mr. Sdoutz,
but rather by other persons in the firm he works for, Forensic Dynamics Inc.

[8]            
An activity log for the file, showing the amount of time various
employees spent working on this report, shows that less than 7% of the time
billed is attributable to Mr. Sdoutz. The vast majority of the work was
performed by Sharlene Puhallo, who was an engineer in training at the time. She
did not obtain her Professional Engineer designation until several months after
the work had been completed. The activity log indicates that she was
responsible for over 80% of the work.

[9]            
More specifically, Mr. Sdoutz admitted in cross-examination that it
was Ms. Puhallo who performed the accident reconstruction. It was she who
prepared the site diagram found at Appendix B and reproduced in the report as
Figure 1. It was Ms. Puhallo who performed the collision simulation using
the PC-Crash software to estimate the speed of the vehicles. Indeed, it was Ms. Puhallo
who actually wrote the initial report, which Mr. Sdoutz later reviewed and
then signed. Nevertheless, Ms. Puhallo’s name does not appear anywhere in
the report. Nothing in the report indicates the work that she performed, in
spite of the fact that, as Mr. Sdoutz testified, “It was Puhallo’s
investigation.”

[10]        
Rule 40A(5) sets out certain requirements that expert reports are
expected to meet. Among them is the requirement that the report set out, “The
name of the person primarily responsible for the content of the statement.”  On
the facts of the present case, it is clear that Ms. Puhallo was the person
primarily responsible for the content of the report. As that fact is not
indicated in the report, the report does not comply with the requirements of
the rule.

[11]        
This is not simply a matter of form. The purpose of the rule is to
ensure fairness to both parties by providing the party on whom the report is
served with adequate notice to enable them to effectively cross-examine the
expert and to properly instruct their own expert if they choose to retain one.

[12]        
The relevant case law was reviewed by Burnyeat J. in Dhaliwal v.
Bassi, 2007 BCSC 548, 73 B.C.L.R. (4th) 170. In that case, the Court was
presented with an expert report of a Dr. Passey who, in forming his
opinions, relied on psychological questionnaires administered by a Dr. Ross. Mr. Justice
Burnyeat wrote at paras. 3 to 10:

[3]        While the Psychological Questionnaires were
administered in the office of Dr. Passey, it came as a considerable
surprise to all counsel that virtually all of the section entitled
“Psychological Questionnaire” had actually been authored by Dr. Ross who
analyzed the three questionnaires. Although Dr. Passey adopted as his own
what had been authored by Dr. Ross, the question which arises is whether
some or all of the report of Dr. Passey should be excluded from evidence
as it does not comply with Rule 40A(5)(c) of the Rules of Court which
provides[:]

(5)        The
statement shall set out or be accompanied by a supplementary statement setting
out the following:

(a)      the qualifications of
the expert;

(b)      the
facts and assumptions on which the opinion is based;

(c)      the
name of the person primarily responsible for the content of the statement.

[4]        The purposes of Rule 40A are clear:  (a) neither
side should be taken by surprise by expert evidence (Sterritt v. McLeod
(2000), 74 B.C.L.R. (3d) 371 (B.C.C.A.) at para. 33) and neither side
should be ambushed or surprised at trial; (b) to ensure fairness to the
parties and to promote the orderly progression of the trial (C.A. v.
Critchley (1996), 4 C.P.C. (4th) 269 (B.C.S.C.) at para. 15). The
burden on Mr. Bassi to show that I should exercise my discretion to allow
the report to be introduced has been described as a:  “… relatively heavy
burden ….”: McKay v. Passmore, [2005] B.C.J. (Q.L.) No. 1232
(B.C.S.C.), at para. 26. The question which arises is whether there is “…
substantial and irremediable prejudice ….” so as to justify the exclusion of
the report on the basis that the statement does not comply with Rule 40A(5)(c)
of the Rules of Court: C.A. v. Critchley, supra, at para. 12.

[5]        In Emil Anderson Construction Co. Ltd. et al.
v. British Columbia Railway Company (1987), 15 B.C.L.R. (2d) 28 (B.S.C.S.),
Macdonald J. dealt with a report where there was no indication as to which
author wrote which part of the report. Macdonald J. described one of the
difficulties in this regard as being:  “The fact that the report has three
authors not only presents problems in cross-examination, it leaves uncertainty
as to which author is responsible for which opinion and may have the effect of
one author leading the direct evidence of another.”  A further difficulty was
described as:

While it is permissible for an
expert witness to express an opinion on hearsay information, provided it
relates to specific matters of which admissible evidence will be given by
another witness, the situation here is complicated by the fact that two of the
authors of the Report in particular were directly involved in the supervision
of … work. The Report itself does not differentiate between facts which are
within the personal knowledge of one or the other of the authors and those
which have been reported to them. (at p. 33)

[6]        Macdonald J. decided that the report would not be
admissible but that this would not bar the defendant from introducing through the
testimony of its authors those facts which were within the personal knowledge
of each of them and those admissible opinions which they were respectively
qualified to express.

[7]        In Heidebrecht v. Fraser-Burrard Hospital
Society (1995), 15 B.C.L.R. (3d) 189, (B.C.S.C.), Henderson J. dealt with
an opinion which stated on its face that it was prepared by a named expert but
which contained several statements of observations and conclusions by a team of
experts in addition to those made by the named experts so that it was
impossible to determine whose opinions were being expressed. In ruling that the
report was inadmissible, Henderson J. stated:

In my view, a document is not a
written statement setting out the opinion of an expert unless it appears
clearly from the face of that document that the opinions in it are those of the
individual expert who prepared and signed the statement. Our rules make no
provision for the entry in evidence of joint or corporate opinions. The opinion
must be that of an individual expert and it must fall, of course, within the
scope of her own expertise. The opinion cannot simply be a reporting of the
opinions of others. The statement, to be admissible, must show clearly that
this is the case.

I find some support for this view
in the decision of my brother Judge Macdonald in Emil Anderson Construction
Co. Ltd. … As that case points out, there is a real possibility of
procedural prejudice to cross-examining counsel if he or she cannot tell from
the report which of the opinions are truly those held by the witness giving
evidence and which are simply opinions of other team members reported to her
and asserted by her in the written report. (at paras. 11-12)

[8]        Similar conclusions were reached in: Jeff
(Guardian ad litem of) v. Kozak, [2002] B.C.J. (Q.L.) No. 179
(B.C.S.C.) (at para. 10) and Strachan v. Brownbridge, [2002] B.C.J.
(Q.L.) No. 382 (B.C.S.C.) (at para. 17).

[9]        While I can conclude that Dr. Passey was
“primarily responsible” for the content of his February 2, 2007 opinion, that
is not enough. In accordance with the authorities reviewed above, Rule 40A(5)
makes no provision for entry into evidence of opinions where there is merely a
reporting of the opinion of others or, where, if the opinion of a number of
experts is included within one letter, it is not clear which part of the
opinion is authored by which expert and the qualifications of each expert and
the facts and assumptions upon which their opinion is based are set out in
separate statements as is required by Rule 40A(5)(a) and in (b). Despite the
inclusion of the words “primarily responsible” in Rule 40A(5)(c) of the Rules
of Court, I am satisfied that it was not the intention of the Legislature
to allow an expert opinion to be provided without particularizing which expert
was providing which portion of an opinion if the opinion was authored by more
than one expert.

[10]      Unless the authors of
all parts of an opinion are known, unless the qualifications of each person
contributing to the opinion are known, and unless the facts upon which each of
the persons contributing to an opinion are set out, the cross-examination of an
expert witness regarding the opinion that had been provided would be
impossible.

[13]        
In my view, the report tendered by the defendant in the present case does
not comply with the requirements of Rule 40A(5), and it would cause irreparable
prejudice to the plaintiff if the report were admitted.

[14]        
The report is excluded from evidence.

The Honourable Mr. Justice
W. F. Ehrcke