(just a quick synopsis)
Plaintiff’s counsel was allowed to bring a maxillofacial prosthodontist (MP) to the defendant dentist’s examination for discovery. The court declined to rule on whether the MP could also testify as an expert at trial, leaving that decision to the trial judge.
(your key takeaways)
- Specialized experts may help lawyers with specialized issues in an examination for discovery. However, that expert may be subsequently unqualified to testify at trial.
- An expert’s participation in an examination for discovery is not unfettered, and the court provides guidance to preserve fairness to the witness.
- Issues of expert qualification and the admissibility of evidence are properly determined by the trial judge, not in a case conference.
(links to the full judicial reasons)
Facts
In a dental malpractice case, plaintiff’s counsel arranged a case conference to schedule a motion seeking:
- Permission to bring two experts – a general practitioner and maxillofacial prosthodontist – to the examination for discovery of the defendant dentist; and,
- Permission that the experts may subsequently testify as expert witnesses at trial.
Due to the delay in the civil justice system, the proposed motion would not take place for 14-15 months. To address the delay, Justice Morgan found it was appropriate to deal with the merits of the procedural motion in the case conference.
In the request for expert attendance, plaintiff’s counsel relied on Telemax Communications Inc v Canquest Communications (Canada) Inc, 2006 CanLII 7033 in which Justice Dash explained: “a party may be permitted to have the assistance of an expert witness during an examination for discovery ‘to advise and assist examining counsel when the technical complexity of the evidence is of such a nature that the party attempting to justify his or her presence could not proceed or could proceed only with difficulty to a satisfactory examination.”
Counsel for the defendant dentist opposed the motion, arguing that counsel was capable of learning medical issues which were “rather straightforward” and did not need “expert elucidation.”
Issues
Can the two experts attend the defendant dentist’s discovery to assist plaintiff’s counsel? If so, can they subsequently testify at trial as expert witnesses?
Held
Justice Morgan held that plaintiff’s counsel could be accompanied by the expert specialist, but not the general practitioner. He declined to rule on whether that expert could subsequently testify at trial.
REASONS
First, Justice Morgan held he was not in a position to “second guess” plaintiff’s counsel’s needs. He agreed that plaintiff’s counsel could bring the specialist maxillofacial prosthodontist, who had advanced knowledge that may be helpful. However, there was no reason for the general practitioner to also attend; counsel could address these issues with proper preparation.
Justice Morgan directed that the expert be discrete and only intervene where necessary. The expert’s participation should not cause the discovery to be prolonged, bogged down in detail, or oppressive and/or intimidating to the witness. He noted that the more people involved in the questioning, the more prejudicial the effect on the party being examined.
Second, Justice Morgan declined to rule on whether the expert may also testify at trial — trial judges determine expert qualification. However, in obiter dicta he stated: “there is little doubt that the effect of assisting counsel at discoveries is that an expert will not be in a position to testify as an expert witness at trial.” An expert who participates in questioning becomes part of the advocacy team; they are “likely not objective and certainly not non-partisan.”