The Plaintiff had sued (on her own behalf and as her child’s litigation representative) the physicians and the hospital at which she gave birth to her child.

The physicians retained an expert to complete a future care costs report, and later, counsel for the hospital requested access to the child in order to have a similar expert report completed. Counsel for the Plaintiffs refused on the grounds that the physicians and hospital were not adverse in interest and thus should be required to rely on the expert report prepared for the physicians’ counsel.

The hospital made a successful Application pursuant to Rule 5.41(4) requiring the child to be observed in the preparation of its own expert report regarding future care costs. The Plaintiffs appealed that Order. The Plaintiffs argued that the hospital should not have been permitted to obtain its own expert report because any such report might not be usable in evidence at Trial in any event, pursuant to Rule 8.16(1) which prohibits more than one expert from giving opinion evidence on any one subject on behalf of a party.

The Court disagreed, finding instead that Rule 8.16 limits each Defendant from calling more than one future care costs occupational therapist expert without permission. However, the fact that one party calls an expert witness in a given area does not impose a leave requirement on any other party.

The Court further noted that there are more uses made of expert reports than as evidence at Trial, including in settlement negotiations which, the Court stated, was an important element of Rule 1.2.