In what might be the first case to address the new Rule 53.03, the Court made it clear that late filing of expert reports will no longer be tolerated. The case involves an accident that occurred in 2013, with the pretrial having taken place in August of 2018. An Order was made at the pretrial that expert reports were to be served by January 2019, with responding reports to be served by April 2019. The jury was selected on April 4, 2022. At that time, Edwards J. inquired into the absence of any expert reports to substantiate the plaintiff’s claim for income loss, med-rehab and housekeeping needs. The plaintiff initially stated that she could not afford the cost of expert reports; then decided that expert reports could be obtained but their late admission would necessitate the adjournment of the trial. The defendant opposed the plaintiff’s request for late filing of expert reports.
The failure to serve expert reports in time cost the plaintiff in this case dearly. Not only was she not allowed to call any experts, but Edward J. would not allow any questions regarding loss of income, med-rehab needs and housekeeping expenses to go to the jury.
With regard to expert reports, Edward J. noted that the new Rule 53.03, which came into effect on March 30, 2022 removed the previous “escape clause” in Rule 53.08 which basically made granting leave for the late filing of expert reports almost mandatory. Whereas under the previous Rule 53.08, “leave shall be granted”, the new Rule 53.08 states that “leave may be granted”, a significant change in wording signalling that the days of nonchalant non-compliance are a thing of the past.
Under the new Rule 53.08, the onus is on the party seeking leave to provide a reasonable explanation why an expert report could not be filed in time. In this case, the plaintiff’s financial inability to fund the reports was not considered a “reasonable explanation”. Edwards J. took judicial notice of the fact that most plaintiffs in personal injury matters retain a lawyer under a Contingency Fee agreement that sees the lawyer funding all or most of the expert evidence required to prove the various heads of damages. Additionally, since the request came after the jury had been empanelled, granting leave would have led to a lengthy adjournment and would have caused “an undue delay in the conduct of the trial”. Edwards J.’s comments on the new Rule 53.03 signal a new and welcomed approach to dealing with late service of expert reports:
“The purpose of the new rule is, in my view, clear and obvious. The first purpose is to send a very loud and clear message to all sides of the Bar, that expert reports are to be served in a timely manner and in accordance with the provisions of Rule 53.03(1) and (2)…
Lawyers and litigants need to adapt to the new rule immediately. The late delivery of expert reports simply will not be rubber-stamped by the court.”
Since the plaintiff was not permitted to file late expert reports, and as such was unable to call any expert evidence on the issue of past and future loss of income, loss of competitive advantage, past and future medical and rehabilitation expenses, or past and future housekeeping, the only question allowed to go to the jury was that of general damages. To do otherwise would, in Edwards J’s opinion, have put the jury in a position to have to speculate. The decision ends with somber advice for the plaintiff Bar:
“The outcome in this case might cause all members of the personal injury Bar to perhaps consider having this type of case tried under the Simplified Rules…”.
While many of us will applaud the Court’s willingness to enforce its own Rules, we must take heed of the fact that as plaintiffs, our clients bear the burden of proof and in personal injury matters, that requires us to fund the litigation or risk losing the case.
