Hearsay in Expert Report Allowed Into Evidence
It is common in personal injury cases for an expert to review extensive clinical records in forming the basis for his or her opinion. In the recent case of MAZUR V. LUCAS, 2010 BCCA 473, the British Columbia Court of Appeal released reasons for judgment addressing expert reports and the use of hearsay evidence. The judgment confirms the common law exception that reliance on hearsay evidence by an expert in forming an opinion does not automatically render that opinion inadmissible.
The plaintiff Ms. Mazur was injured in a car accident in 2006. The contested issue at trial was whether the plaintiff’s disabling condition was her pre-existing psychological symptoms or the chronic pain disorder caused by the accident. The plaintiff relied on the opinion of psychiatrist Dr. O’Shaughnessy who in his report referred to the notes of the plaintiff’s treating psychiatrist Dr. Gibson, and another psychiatrist who had examined her, Dr. Solomons. These doctors were not called as witnesses at the trial and no reports from those doctors were served by either party pursuant to Rule 40A (now Rules 11-6, 11-7). Therefore, their evidence was hearsay. On this basis, the trial judge ruled that the portion of Dr. O’Shaughnessy’s report which referred to the evidence of these doctors was inadmissible and redacted it from the evidence before the jury.
Defence counsel argued that in light of Dr. O’Shaughnessy’s apparent reliance on the opinions of Drs. Gibson and Solomons, she was entitled to cross-examine him on this basis. Plaintiff’s counsel argued that a cross-examination of this nature should not be allowed if the defendant did not intend to call Drs. Gibson or Solomons as expert witnesses as it would be getting the evidence of these doctors in “through the back door”. The trial judge agreed and did not allow cross examination in these crucial areas. The jury awarded the plaintiff a total of $528,400 in damages.
The defendant appealed and argued that the trial judge incorrectly redacted hearsay from the expert reports and unreasonably restricted the cross-examination. The court of appeal agreed and sent the matter for a new trial.
In its analysis, the court examined the various case authorities with respect to expert evidence and hearsay and came to the following conclusions:
1. An expert witness may rely on other sources, including a review of other expert’s observations, in forming his or her opinion.
2. An expert witness may rely on hearsay. A specific example is given of the expert who relies on the observations of a radiologist contained in an x-ray report rather than viewing the x-ray himself or herself.
3. The weight placed on the opinion of the expert may depend on the degree on which the expert has relied on the hearsay evidence as compared to his or her reliance on admissible evidence. It may also depend on the reliability of the hearsay evidence itself.
4. The correct judicial response to the question of the admissibly of hearsay evidence in forming an expert opinion is not to withdraw the evidence but to address the weight of the opinion and the reliability of the hearsay in an appropriate self-instruction or instruction to a jury.
The plaintiff needs to ensure all underlying evidence upon which an expert’s opinion is based is independently proven. However, our province’s highest court has made it quite clear that absent exceptional circumstances, an expert’s reliance on hearsay, particularly hearsay with a high degree of reliability such as another medical opinion, will not be a basis for exclusion of their report or their testimony.
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