EXPERT LIMITS PREJUDICE ACCIDENT VICTIMS: FORD
(Originally published at AdvocateDaily.com, March 2019) New rules limiting the use of experts in litigation related to motor vehicle accidents will unfairly prejudice injured plaintiffs, Kamloops personal injury lawyer Matthew Ford tells AdvocateDaily.com.
According to a Canadian Press (CP) report, parties in fast-tracked litigation for claims worth less than $100,000 will be entitled to the use of just one expert opinion, while those outside that limit would be allowed to call on three experts. “I see a lot of problems with limiting the number of experts,” says Ford, partner with Cates Ford Soll & Epp LLP. “To me, it’s unfair to the plaintiffs because they are the ones who bear the burden of proof in these cases, not the defendant. If they can’t meet that burden, then there won’t be any money for particular heads of damages.” According to CP, B.C. Attorney General David Eby claims the amendments will curb overuse of experts, which he says shares the blame for the ballooning cost of litigation involving the Insurance Corporation of B.C. (ICBC), which is on track to run a deficit of $1.2 billion this year, in addition to the $1.3 billion it lost in 2017. The public insurer has seen a 43 per-cent rise in claims over the past five years and a 20 per-cent increase in the cost of settlements in the last year alone, said Eby, who expects more court-appointed experts to offer opinions following the changes. “It all seems to be part of a larger plan to cut costs at ICBC,” Ford says. “We’ve already got a cap coming on damages for minor injuries, and while I understand the need to reduce expenses, it puts plaintiffs in a difficult position.” He explains that even relatively minor cases require a variety of experts, depending on the nature of the litigation. “You’re going to need expert evidence from doctors, orthopedic surgeons and physiatrists to prove causation of their injuries and to make a case for what the person’s life will look like in future.” In addition, he says plaintiffs frequently hire multiple experts in anticipation of a defence claim that they are malingering. “A physiatrist will examine the patient and listen to how the injuries affect them, relying on the truth of their statements. That’s where you might bring in a functional capacity evaluator, who will spend all day with the plaintiff and test their physical abilities, so you’re no longer relying on what the individual is saying,” Ford says. “The defendant can always make the pitch that the plaintiff shouldn’t be believed, and if you limit the number of experts they can use, I’m not sure how they can get around that.” When it comes to claims involving long-term injuries, he says an expert economist may be needed to testify as to a plaintiff’s future earnings losses, he says. “I can only imagine going to court without that, and the judge accepts there’s some degree of impairment but doesn’t know what that means in terms of dollar and cents because the plaintiff has run out of experts,” Ford adds.