Dr. Michael West

This ruling addresses the plaintiffs' motion for leave to call more than three medical experts in a personal injury trial, as permitted under Section 12 of the Evidence Act.

The court reviewed the proposed experts for both plaintiffs, Kenisha Desmond and Shian Henry, and found significant overlap and duplication in their anticipated testimony, particularly among medical specialists.

Applying the criteria for granting leave and emphasizing the court's gatekeeping function to prevent unnecessary trial length and disproportionate costs, the judge granted leave to call only one expert from each identified group of duplicative specialists for both plaintiffs, while allowing economic and occupational therapy experts.

The plaintiff brought an undefended action for damages following a trip and fall at the side entrance of the defendants' house, which operated as a dental office.

The court accepted expert evidence that the step was negligently constructed and in disrepair, causing the plaintiff to fracture her metatarsal and develop chronic pain syndrome.

The defendants, who were noted in default, were found jointly and severally liable for $67,980 in total damages, plus $20,000 in costs.

The defendants brought a motion seeking an order to compel the plaintiff to attend a further defence orthopedic examination.

The plaintiff opposed the motion.

The court applied the seven-factor test from Bonello v. Taylor, 2010 ONSC 5723, for ordering further examinations.

The court noted that the defendants had previously chosen a physiatrist for examination despite knowing the plaintiff would rely on an orthopedic surgeon's report.

No significant change in the plaintiff's condition was demonstrated, and the defendants' own physiatrist's addendum report confirmed his original opinion remained unaltered, even after new information about a subsequent accident.

The court found that the defendants failed to demonstrate the necessity for a second physical examination and dismissed the motion.