How much trial preparation is reasonable? Will I recover for the expenses related to this additional preparation?
In this week’s case of Perron v. Catalano 2016 BCSC 1285, the case settled a week ahead of trial. After settlement, “costs and disbursements” (the expenses and efforts that your lawyer has incurred) are negotiated – with the at-fault party reimbursing some or sometimes all of the expenses incurred. Here, the parties could not agree on a number of items, and the matter went to a hearing before a Master to decide which expenses would be allowed.
While I recommend a detailed read of the decision for the details, I have summarized the arguments and the decision of Master Scarth:
Item 2 – correspondences, conferences, instructions, investigations or negotiations by a party after the start of the proceeding… 1-30 units available.
The plaintiff sought 22 units, 15 submitted by defence. 15 awarded for a case of that nature, where units in the mid-range were appropriate.
Item 17 – retaining and consulting experts. 1-10 units available.
Item 18 – contacting, interviewing, and issuing subpoenas to all witnesses. 1-10 units available for each.
Plaintiff sought 7 units for each, defence submitted that 5 units was appropriate, and that there were too many expert reports. 5 awarded for a case of this nature.
Item 34 – preparation for trial, if proceeding set down for each day of trial. 5 units available.
The plaintiff claimed 5 units. The third party argued that units only available if the case settles no earlier than the Friday prior to the Monday trial date. 5 units awarded, as the Master was satisfied that trial preparation was undertaken in the weeks leading up to trial.
Dr. Etheridge (treating pain specialist) report – $3,000.00. Plaintiff submission that the expense was in accord with the billing practices of other pain specialists. It was the third party’s position that the plaintiff should have restricted the request for a report on the injection therapy provided to the plaintiff, as no need for diagnosis and causation opinions given the existing opinions from Van Heerden, McCann, and Sahjpaul – with the Van Heerden report having been commissioned only 7 weeks prior. The third party argued that the Etheridge opinion for a report covering the same ground should not be allowed. The Master agreed that the report should have been “more focussed on the pain therapy provided, and that a broader report was not necessary or proper in the circumstances” and allowed $1,800.00 for this report.
Dr. McCann (expert physiatrist) report – $3,692.00. This doctor provided four reports, and the third party only objected to one. The objection related to four hours of record review, billed at $500/hr and it was the third party’s position that two hours of review should have been sufficient. Plaintiff argued that the third party was doing “litigation by hindsight”, which was accepted by the Master. The Master could not conclude that an additional two hours resulted in an “excessive bill” as alleged.
Dr. Sahjpaul’s (neurosurgeon) reports – $6,352.50 (report) and $630.00 (report on MRI and CT scan). The third party argued that the report of this neurosurgeon should have been restricted to a narrow issue identified by Dr. McCann – namely whether the plaintiff would benefit from further lumbar surgery and a full report should not have been commissioned – as the issues of causation were already addressed by Dr. McCann. The Master accepted that the report should have been limited, and it was not proper for plaintiff counsel to rely on her own assessment of the plaitiff’s condition without support from treating physicians. $4,800.00 allowed on the first report and the full MRI/CT review allowed.
Dr. Tater’s (treating chiropractor) report $1,137.50 (report) and $234.37 (clinical record production). It was the third party’s argument that the report request of the treating chiropractor was made after the plaintiff already had medical/legal reports on diagnosis, causation, and functional impacts of the plaintiff’s injuries from four experts. Dr. Tater gave an opinion on causation which was beyond his expertise. $500.00 was allowed for the report, and $106.67 for the records production.
Spectrum Rehabilitation Services Addendum Report – $200.00 – Prepared after review of Dr. Etheridge’s report to supplement the existing functional capacity evaluation and cost of future care report. The Master deemed the $200.00 charge to be reasonable.
Vocational Consultant Report – $4,080.00 (including a quick turnaround fee). The third party sought a reduction in the amount, saying that much of it was boilerplate and summary of the records, saying it should be reduced to $2,040.00. There was no further breakdown from the author about how he arrived at his fee. $2,400 was awarded, with the Master not satisfied that there was justification for the high price of the report or the need for a quick turnaround.
Trial preparation meetings with experts were allowed as claimed.
A private MRI was not allowed because the plaintiff failed to establish that there was urgency requiring a private MRI as trial was 16 months away, and he was on the cancellation list and would have gotten an MRI in the public system with ample time to prepare for trial.
Economist Report on wage loss – $1,625.00 claimed, $725.00 allowed because the preparer kept no record of how much time was spent and could not establish the reasonableness of the charge.
Investigator expense of $143.00 for witness interviewing of a name erroneously given to plaintiff by defence, not allowed because a call from the plaintiff counsel’s assistant would have resulting in the same information – i.e. you have the wrong person. Therefore the disbursement was not a proper expense.