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Building a Claim with Expert Evidence

Updated: 4 days ago

An experienced personal injury lawyer practicing in Ontario knows that he or she must invest in the right expert or experts, in order to comprehensively advance a Plaintiff’s damages and/or liability claims. This means that when the time is right, referral of the file to an expert must take place.

The Expert Engineer

In areas of contested liability in a personal injury claim arising from a motor vehicle accident for example, it is important to refer the file to a professional engineer almost the minute the file comes into the office of the personal injury lawyer. The wreckage of the vehicles must be ascertained and then examined (both the Plaintiff’s vehicle and the Defendant’s). This can give the engineer details about the speed of the vehicles (from the amount of intrusion into the body of vehicle for example or from any crash data), and as well about the movement of the vehicles in the crucial moments before a collision. Ultimately the engineer will be hired by the Plaintiff’s counsel to undertake a reconstruction of the accident and to give his or her opinion as to how the collision occurred, in order to assist the Plaintiff in winning any liability argument and in supporting the Plaintiff’s version of events.

The engineer may also assist the Plaintiff’s lawyer in formulating questions prior to discovery so that the answers the engineer needs to hear from the defendant are “on the record”.

All experts are expensive, whether they work for the Plaintiff or for the Defendant.  However, in a serious case where liability is at issue, engineering experts who have a facility for addressing a jury and who have experience and credibility in the field of motor vehicle accidents are worth their weight in gold.

The experienced trial lawyer knows that no expense can be spared in hiring the right engineer at the very earliest opportunity.

The Expert Doctor

There are litigation experts and participant experts.

Litigation Expert:

A medico – legal damages expert would not be hired until many months had passed after the Plaintiff’s accident. The expert will be hired to address the nature and scope of the Plaintiff’s injuries and to provide a diagnosis and prognosis, among other things.  The expert, in agreeing to see the Plaintiff, is telling the personal injury lawyer that he or she will go to Court and give evidence at trial as to the Plaintiff’s medical condition. The expert will address any and all areas or issues within their expertise which the personal injury lawyer has requested be addressed: diagnosis, prognosis, fitness to work, early retirement, physical or psychological dysfunction (or both), and whether the Plaintiff has suffered a serious and permanent impairment of bodily or psychological function as a result of the motor vehicle accident (the threshold test). This type of expert is referred to as a “litigation expert” whose evidence must comply with Rule 53 of the Ontario Rules of Civil Procedure. A litigation expert is not a treating practitioner of the Plaintiff but only becomes involved when retained by the Plaintiff’s lawyer to provide an opinion on the case. A litigation expert’s opinions are contained in a medical-legal report and they may not testify or provide opinion evidence unless it is contained in that report.

Participant Expert

The Plaintiff’s own treating doctors (referred to as “participant experts” and distinguishable from “litigation experts”) may also give evidence at trial as to their opinion of the Plaintiff’s injuries and as to the course of treatment they have administered. However, a participant expert’s evidence will be limited to their observations of the Plaintiff and any other opinions that they formed as part of their ordinary exercise of their skill, knowledge, training, and experience while observing the Plaintiff (ie… a treating psychologist providing their opinion as to the diagnosis of the Plaintiff’s condition). Typically, their opinions and observations of the Plaintiff are contained in clinical notes. The evidence of a participant expert will also be crucial in establishing the underlying facts relied upon by the Litigation Expert in drawing certain conclusions.

The Malpractice Expert

In a medical malpractice case or in a case of professional negligence it will likely be necessary to retain more than one expert. One expert will be of the same specialty as the specialist whose conduct is at issue; this expert will give an opinion as to whether the Defendant’s conduct was beneath the standard of care expected by the profession at the relevant time. 

If the medical care was substandard, a second expert will be required to address another vital aspect of the medical malpractice claim:  whether the negligence or breach of the   standard of care caused or contributed to the damages of which the Plaintiff complains. This is called Causation.

Both a breach of the standard of care and causation must be addressed by experts, possibly even before the issuance of a statement of claim by the personal injury lawyer.

The lawyer will then retain other specialists (litigation experts) to opine on how the Plaintiff’s injuries may impact their ability to work, return to their recreational activities, and any medical care requirements the Plaintiff may have.

Life Care Planners/Accounting/Actuarial

Further experts may be required to address the nature of the damages suffered and the cost of those damages to the Plaintiff, past, present and future.  These may include vocational experts, forensic accountants, economic loss evaluators, occupational therapists and life care planners.

An experienced personal injury / medical malpractice lawyer will know that retaining the right expert will be key to the ultimate success of the Plaintiff’s case and will spare no expense in doing so.

The lawyers at Hillier & Hillier are experts at choosing experts. If you have been injured as a result of the negligence of another party, call Hillier & Hillier at 905 453 8636.

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