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New Facts at Trial May Make Your Expert Report Useless

Nelson v. British Columbia (Provincial Health Services Authority) 2017 BCCA 46 serves as a good reminder to ensure that your witness’s version of events is crystallized before you give that fact scenario to an expert to provide an opinion.

Ms. Nelson alleged that she tore her hip joint while giving birth when a nurse dropped her leg. Both parties retained orthopedic experts to provide opinions as to whether it was possible for the plaintiff to have suffered her injury in the way that she described. Both of the opinions were based on the plaintiff’s pre-trial evidence that her legs were being held by the nurse in a frog-leg position before being dropped. However, at trial, the plaintiff said that her legs were resting on a birthing bar prior to being dropped. Neither of the experts had taken into account the presence of a birthing bar. Despite this discrepancy, the trial judge accepted the opinion of the plaintiff’s expert and found that the dropping of the leg from a birthing bar had caused the hip joint tear.

The Court of Appeal overturned the trial judge’s decision and ordered a new trial. They said that since the trial judge accepted the plaintiff’s evidence that a birthing bar had been in use at the time the leg was dropped, then neither of the expert opinions could be relied on because neither had considered this.

If a witness’s evidence at trial does not match his or her previous evidence, your expert opinions may become useless. It is good practice to be as confident as possible in your witness’s version of events before providing assumed facts to an expert for an opinion.

Case summary by Karen Orr