COURT FILE NO.: 3740/18 DATE: 20230523 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
LISA MAJERCZYK Plaintiff – and – RODOLFO MANALO Defendant
Counsel: D. Wright and A. Samuel, for the Plaintiff M. Kennedy and S. Souffront, for the Defendant
HEARD: May 19, 2023
S. J. WOODLEY
RULING: LEAVE TO CALL MORE THAN THREE EXPERT WITNESSES AT TRIAL
FACTS AND OVERVIEW
[1] This ruling relates to the request by the defendant to call more than three experts at the trial of this action.
[2] The issue arises in the early stages of a motor vehicle accident trial before a jury.
[3] The facts giving rise to this trial are as follows: a. On January 10, 2017, at approximately 5:30 pm, the plaintiff Lisa Majerczyk, was driving from her employment in Brooklyn, Ontario to her home in Courtice, Ontario, travelling east on Taunton Road. b. At the same time the defendant Rodolfo Manalo was travelling west on Taunton Road. As the defendant’s vehicle approached the intersection of Taunton Road and Fices Road, the defendant’s car went out of control, crossed the centre line, and struck the plaintiff’s vehicle head on in the plaintiff’s lane of traffic. c. As a result of this accident, the plaintiff, Ms. Majerczyk claims that she suffered a permanent serious impairment of an important physical, mental, or psychological function and has incurred damages. d. The injuries claimed by the plaintiff are as follows: tear to the muscles in the right shoulder; whiplash; chronic headaches; severe back pain including two bulging discs; insomnia; mood disorders; post-traumatic stress disorder; chronic pain; cognitive deficiencies including poor memory, poor attention, and impairment of mental functioning. e. The defendant, Mr. Manalo, admits liability but denies that the accident caused the injuries as claimed and further denies that the plaintiff suffered the damages as alleged. In the event causation is proven, the defendant alleges that the plaintiff is contributorily negligent for the damages suffered alleging a failure to mitigate. f. The issues to be determined are causation, contributory negligence, and damages.
[4] The jury trial of this action commenced on May 16, 2023.
[5] At the commencement of trial, the defendant by motion sought: a. production of Accident Benefit (“AB”) surveillance videos in the possession of the plaintiff and permission to introduce such videos at trial; and b. leave to call more than three expert witnesses at trial, and more particularly, leave to call Dr. D. Berbrayer, physiatrist in addition to Dr. Lee, orthopaedic surgeon.
[6] The plaintiff objected to the disclosure of the AB surveillance videos and objected to the defendant calling Dr. Berbrayer in addition to Dr. Lee on the grounds of duplication and disadvantage.
[7] For oral reasons delivered on May 18, 2023, I determined that the surveillance video was producible to the defendant with the issue of admissibility to be determined by a voir dire or other means following review of the surveillance video.
[8] These reasons relate to the defendant’s request for leave to call more than three experts at trial, and more specifically, for leave to call Dr. D. Berbrayer, physiatrist, in addition to calling Dr. Lee, orthopaedic surgeon.
[9] These reasons pertain only to the request for leave to call more than three experts.
[10] In the present case, the Defendant seeks to call: a. Dr. Albert Yee, orthopaedic surgeon; b. Gary Phelps, chartered professional accountant; c. Matthew Rose, occupational therapist and certified life planner; d. Dr. Zohar Waisman, psychiatrist; and e. Dr. David Berbrayer, physiatrist.
[11] The defendant submits that the experts are all providing opinion evidence on unique and distinct issues as they all have different areas of specialty. The defendant submits that the proposed expert evidence is necessary for the proper adjudication of the trial, an accurate assessment of the damages, and to provide the defendant with a full opportunity to make their case.
[12] The plaintiff intends to call three experts, in addition to four participant experts.
[13] The plaintiff submits that there is duplication between the expert reports and proposed expert evidence of Dr. Berbrayer and Dr. Yee, and further that leave to allow the defendant to call more than three experts (particularly Dr. Berbrayer) would disadvantage the plaintiff.
ISSUE
[14] The sole issue to be determined is whether the defendant should be granted leave to call more than three experts (particularly Dr. Berbrayer) at this trial.
[15] Admissibility of any proposed expert testimony is not the subject of this motion and will be determined in the usual course after the expert witness has been sworn/affirmed and provided a summary of their expertise and experience for the purpose of being qualified as an expert at trial.
THE LAW AND ANALYSIS
[16] Section 12 of the Evidence Act, R.S.O. 1990, c. E. 23, provides that where it is intended by a party to examine as witnesses -persons entitled to the law or practice, to give opinion evidence, not more than three of such witnesses may be called by either side without the leave of the judge.
[17] On a motion for leave under s. 12 of the Evidence Act to call more than three expert witnesses, the court should consider (a) any objection by the opposite party; (b) the number of expert subjects in issue; (c) the number of experts each party proposes to call on each issue; (d) the number of experts customarily called in similar cases; (e ) whether leave would disadvantage the opposing party; (f) the necessity of calling more than three experts; (g) any duplication of the opinions; and (h) whether the time and costs are disproportionate. See Kulyk v. Cramp, 2014 ONSC 5354 (S.C.J.) and K.N.B v. Wu.
[18] The defendant intends to call five experts. The plaintiff intends to call three experts in addition to four participant experts (who are not subject to s. 12).
[19] The plaintiff objects to Dr. Berbrayer being allowed to testify on the basis that his report is substantially similar to Dr. Yee, orthopaedic surgeon, such that it is duplicitous. The plaintiff further submits that allowing Dr. Berbrayer to testify will disadvantage the plaintiff.
[20] In McNamee v. Oickle, 2002 ONSC 432, Beaudoin, J. recognized that in cases where chronic pain is alleged “it is not unusual to have more than one expert – each with different expertise – to comment on the issue of causation”. I accept this observation as being an accurate reflection of the current usual practice in chronic pain cases.
[21] In the present case, Dr. Berbrayer is the only physiatrist being called to provide evidence at trial by the defendant and his expertise and evidence is substantially different than that provided by Dr. Yee, who is an orthopaedic surgeon.
[22] While I acknowledge that the reports prepared by Dr. Berbrayer and Dr. Yee, are strikingly similar, the underpinning of the expert reports is strikingly different: a. Dr. Berbrayer is a physiatrist; b. Dr. Yee is an orthopaedic surgeon; c. Dr. Berbrayer examined the plaintiff “virtually” through his computer; d. Dr. Yee conducted an in-person examination of the plaintiff; e. Dr. Yee, if qualified at trial, will be qualified as an orthopaedic surgeon trained in examining the musculoskeletal system (only) with his expertise being narrowly defined by the defendant as a specialization in acute injuries to the back who (according to the defendant) “can opine on whether the plaintiff reasonably requires back surgery”; f. Dr. Berbrayer, if qualified at trial, will be qualified as a physiatrist, who (subject to any limitations cause by his “virtual examination” and the four corners and the content of his expert report) provides evidence on whether the plaintiff’s post-concussive symptoms impact her function (Dr. Yee cannot), provides evidence on rehabilitation (Dr. Yee cannot), and on the plaintiff’s ability to return to normal activities (Dr. Yee cannot).
[23] Dr. Berbrayer is the only physiatrist intended to be called by the defendant. His area of specialty is separate and distinct to that of Dr. Yee, who is an orthopaedic surgeon. The simple fact that the expert reports filed by Dr. Berbrayer and Dr. Yee contain similar observations and conclusions does not automatically result in duplication of the sort that warrants exclusion.
[24] There is no prohibition against duplication. The case law prohibits undue duplication.
[25] With respect to the claim that the plaintiff is disadvantaged if the court grants leave to allow the defendants more than three experts to testify, such claim has not been made out.
[26] Dr. Berbrayer’s report is dated January 20, 2022, and has been in the possession of the plaintiff for some time. The plaintiff has been treated by a physiatrist for some time (Dr. John) and if counsel has considered it appropriate could have arranged for the treating physiatrist (Dr. John) or a separate Rule 53 expert to attend trial to address Dr Berbrayer’s report.
[27] Further, given that the plaintiff has the opportunity to call treating physicians as participant experts, and has provided a list of approximately four such experts to appear at trial, I see no disadvantage to allowing the defendant to call five expert witnesses at trial given that each expert represents a different specialty and (if qualified as experts and their evidence allowed) will provide differing perspectives on the critical issues to be determined by the jury.
[28] Finally, as noted in Davies v. The Corporation of the Municipality of Clarington, disadvantage may occur when there is a “piling on” of experts. This is not the case here. The defendant seeks to call only five experts, each with a different specialty.
CONCLUSION AND DISPOSITION
[29] For the foregoing reasons, I order as follows: a. Leave is granted to the defendant pursuant to Rule 48.04 to bring the within motion and pursuant to Rule 3.02 to abridge any time limits to serve and file the motion; and b. Leave is granted to the defendant pursuant to s. 12 of the Evidence Act to allow the defendant to call more than three expert witnesses at trial.
Justice S. J. Woodley Date: May 23, 2023