In a personal injury action arising from an assault, the defendant moved to exclude two plaintiff medical reports proposed to be tendered under s. 52 of the Evidence Act at a contested damages trial.
The court held that both proposed experts were litigation experts within the meaning of Westerhof and that their reports complied with Rule 53.03(2.1) and Rule 4.1.01(1).
However, the court refused leave under s. 52(2) of the Evidence Act to file those reports in lieu of viva voce testimony, holding that litigation experts must attend trial so the judge can perform the gatekeeper function on qualification and scope of opinion evidence.
The motion was therefore granted, with costs in the cause.
