BARBE v EVANS, 2020 ABQB 599


5.39: Use of expert’s report at trial without expert
8.15: Notice of persons not intended to be called as witnesses
8.16: Number of experts

Case Summary

The Plaintiff sued his former physician and hospital in negligence, and his former physician for breach of informed consent.

The Plaintiff asked that the Court draw an adverse inference against the Defendant hospital for choosing not to call any evidence as well as for failing to serve a Notice under Rule 8.15. Justice Kendell noted that while Rule 8.15 authorizes the drawing of an adverse inference, it does not require it. Kendell J. found that the drawing of an adverse inference was not appropriate in this case. Her Ladyship stated that it was unclear what adverse inference could possibly be drawn, given that all other evidence led to the conclusion that the Defendant hospital had not breached the standard of care.

The Plaintiff retained two physician experts who had prepared expert reports: Dr. Woods and Dr. Elhilali. Dr. Elhilali passed away after authoring his expert report but prior to the Hearing. The Defendant served a rebuttal expert report prepared by Dr. Zorn, one month after Dr. Elhilali’s passing. The Defendant argued that any mention of Dr. Elhilali’s expert report referred to in other expert reports should be redacted. The Defendant argued that any such references would amount to the introduction of Dr. Elhilali’s evidence through the other reports, contrary to Rules 8.16 and 5.39.

Kendell J. cited Smith v Obuck, 2018 ABQB 849 for the proposition that Rule 8.16 must be guided by its objectives of preventing the unnecessary abuse, expense, and delay that may be caused by the excessive use of experts. These objectives must be balanced against a Plaintiff’s right to fully present their case.

Ultimately, Justice Kendell redacted certain portions of Dr. Woods’ expert report which referred to Dr. Elhilali’s report. Kendell J. did so because of the prejudice that these references may cause to the Defendant physician. With respect to the remaining references to Dr. Elhilali’s report, Kendell J. held that they provided useful context and helped the Court understand the evidence and should therefore not be redacted.

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