IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140717

Docket: M65340

Registry:
Nanaimo

Between:

Jennifer Giacetti

Plaintiff

And

Brandy F. Criss

Defendant

Before:
Master Muir

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: This is an application by the defendant for an order
that the plaintiff submit to an independent medical examination (“IME”) with Ms. Earle
in order to respond to the cost of future care assessment made by the
plaintiff’s expert, Ms. Edwards.

[2]            
The background is that the plaintiff was involved in a motor vehicle
accident on January 16, 2011. It was a head-on collision and both liability and
quantum are in issue. There is a trial scheduled for September 15 of this year.

[3]            
The plaintiff is 34 years old and was an operating room nurse at the
time of the accident. She has been allegedly disabled by the accident, such
that she has been unable to resume this or any other occupation since the
accident.

[4]            
The 84-day deadline has passed. The report sought will be a rebuttal
report, as that is understood in the Supreme Court Civil Rules, B.C.
Reg. 168/2009 (the “Rules”). The applicant refers to the decision in Luedecke
v.Hillman, 2010 BCSC 1538, and particularly acknowledges that the applicant
needs to meet a higher evidentiary basis than would be required under Rule 11-6(3)
of the Rules. She must establish the necessity for an IME in order to
respond to the report of the plaintiff, and the report must be responsive to
the evidence of the plaintiff. That is discussed at length in Luedecke. There
are various definitions of rebuttal and responsive evidence that are considered
in that decision. It was held that a proper response would be a critique of
methodology, but is not limited to that.

[5]            
In that decision at para. 51, the court refers to a different form of
responsive evidence recognized in Stainer v. Plaza, 2001 BCCA 133 and the
judgment quotes from para. 15 of that decision:

The third condition in the order is directed to the third
party calling an independent medical examiner "for rebuttal evidence".
I understand from counsel that this refers not to rebuttal evidence as
generally understood, but to evidence that is purely responsive to
medical evidence which the plaintiff has led as part of her case. It would not
apply to opinion evidence offered by the third party on subject matters not
adduced in the medical evidence adduced by the plaintiff.

[6]            
The defendant has brought evidence from Ms. Earle in which she
deposes to the need for an IME with the plaintiff in order to provide her
responsive report. She distinguishes between a functional capacity assessment
and a comprehensive care assessment. She says the former is more of a
measurement within pre-established clinical parameters, perhaps a more
objective test, in my words, and that a comprehensive care assessment, on the
other hand, is perhaps more subjective, by obtaining information by interview
and observation in real-world settings.

[7]            
Ms. Earle says that:

Mair Edwards conducted a cost of
future care assessment in preparing her reports including interview, physical
assessment, functional assessment, and review of the home environment and
medical equipment.

And that Ms. Edwards’ report is based primarily on
her observations of the plaintiff.

[8]            
Then Ms. Earle concludes:

It is my opinion it is necessary
for me to interview and assess the Plaintiff in her home in order to properly
address the findings and care recommendations as set out in Ms. Edwards’
reports.

[9]            
The plaintiff opposes the application on several grounds. First, she
says it is important to remember that this is a responsive report and there is
no ability of the plaintiff to provide what might be called surreply. It is
argued that the defendant could have obtained this report prior to the 84-day
deadline as a true expert report and chose not to do so, but they did obtain
four other expert reports – from an orthopedic surgeon, a psychiatrist, an
occupational therapist, and a vocational consultant. There is also a rebuttal
report from the orthopedic surgeon, Dr. Dommisse, who responds in part to
the report of Ms. Edwards. Counsel for the plaintiff therefore argues that
the proposed report from Ms. Earle is also duplicative.

[10]        
In Luedecke, part of the consideration was that the medical
condition of the plaintiff had changed dramatically during the course of the
action. Here the plaintiff submits there are no surprises. The defendant knew
of the status of the plaintiff from the outset. The defendant was well aware of
the plaintiff’s complaints. There has been no change and nothing that warrants
an in-person assessment this late in the day. Her needs have not changed since
2011, and that is conceded by the defendants.

[11]        
The plaintiff argues that the parties will not be on an equal footing if
this report is allowed at this late time, that it will indeed give the
defendant a leg up in the sense that is discussed in the decision of Sparacino
v. Transportation Lease Systems Inc. (Vancouver Registry, Action No.
M103587, April 13, 2012) of Mr. Justice Davies where he says in para. 6:

…While it could be left to the
trial judge to determine admissibility of the report as rebuttal evidence if
the report is then determined to be admissible, the plaintiff will be
prejudiced because surreply would not be available.

[12]        
Arguably, surreply would not be appropriate in those circumstances, but
in any event counsel for the defendant argued that the Sparacino decision
was wrong and I make no comment on that, but obviously Sparacino is a
decision of this court that is binding on me.

[13]        
Counsel for the defendant particularly took issue with para. 3 of the Sparacino
decision where Davies J. said:

It seems to me that if Dr. Smith
were to include observations of the witness in his report, those observations
are going to be new observations and will be new opinion evidence. That is not
allowed under the rules for rebuttal evidence relied upon by the defence in
seeking the IME.

[14]        
Counsel for the defendant submitted that this comment had to be wrong or
there would never be an opportunity for an IME for a rebuttal report, and she
argued that in the circumstances here, the observations of the expert, Ms. Earle,
would simply be evidence upon which she would be cross-examined. They would not
be her opinions, but would be used as a foundation for her rebuttal opinions.

[15]        
This is a difficult area and it is up to me, in my discretion, to
attempt to balance appropriately the interests of the defence and the plaintiff
in having a fair trial and bringing proper evidence to bear in all of the
circumstances.

[16]        
I am swayed by the argument of the plaintiff that the report sought may
not be properly in the nature of a rebuttal report, but my decision is, in fact,
founded on the fact that I believe the IME is unnecessary. The defence already
has a report of an occupational therapist, a vocational consultant and an orthopedic
surgeon that have investigated the capacity of the plaintiff. It seems to me
that what Ms. Earle is seeking to do is to again test the capacity of the
plaintiff, but in her standard environment. I do not believe that is a
necessary requirement for a rebuttal report in all of the circumstances, thus
the application is denied.

[17]        
As the plaintiff has been successful, she will have her costs.

__________ “Muir M.”___________
Muir M.