This was an Application by the Defendants to exclude the Plaintiffs’ third Expert Report, arguing that it contravened Rule 5.35 on expert report sequencing and Rule 8.16, which restricts each party to a single expert per subject. The case involved allegations of medical negligence and standard-of-care issues related to obstetrics. The Defendants contended that any Surrebuttal Report should have been provided by the Plaintiffs’ original expert, Dr. Stamp, rather than a new expert, Dr. Barrett. The Plaintiffs argued that Dr. Barrett’s report was strictly responsive to new issues introduced by the Defendants’ expert, Dr. Birch, thus qualifying as surrebuttal.

Justice Lema found that Rule 5.35 did not require surrebuttal reports to be provided exclusively by the initial expert, and he identified no precedent mandating such a restriction. Upon examining Dr. Barrett’s report, the Court concluded that it responded directly to the new details raised by Dr. Birch, thereby maintaining its surrebuttal character. The Court further reasoned that, since Dr. Barrett’s report was responsive to specific points raised in the Defendants’ rebuttal, it did not violate Rule 8.16 by introducing a second expert on the same subject, as it was essentially clarifying and supplementing Dr. Stamp’s initial findings.

In addition, the Court exercised its discretion under Rule 8.16 to allow any overlapping elements within Dr. Barrett’s report, finding no abuse or undue duplication of evidence. Accordingly, the Defendants' Application was denied, and the Plaintiffs were awarded Schedule C Costs with a multiplier of 2.