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Mistrial: Late Disclosure of Material Medical Records Resulting in Late Supplementary Reports

When late disclosure of medical records results in the submission of a last minute supplementary expert report just before trial, who’s to blame?  Is a mistrial in order?

A decision released by the BC Supreme Court on August 29, 2017 (Hilton v Brink, 2017 BCSC 1492) deals with the admissibility of a last minute supplementary expert report.  During the proceedings, on the same day the jury was selected, Plaintiff counsel brought an application to exclude from evidence ICBC’s supplementary orthopaedic expert report from evidence that was served on the Plaintiff just 12 days before trial.

Not surprisingly, both the plaintiff and the defendant blame each other for the situation which had developed.

Plaintiff counsel argued the supplementary report was not admissible on a number of grounds.  Plaintiff counsel also argued that if the supplementary report is admitted into evidence, then the trial should be adjourned in order for the plaintiff to provide a “fulsome response” to the issues raised by the medical expert.  The report was served so hastily on plaintiff counsel that ICBC’s counsel didn’t even review it.  As result, there were obvious deficiencies, including opinions of credibility, in the report which could otherwise been corrected with the guidance of counsel.

ICBC’s counsel argued that they were obliged to produce a supplementary report because the records received from Plaintiff counsel following the production of the first report materially changed the opinions expressed in the first report.  ICBC’s counsel also blamed the lateness of the supplementary report on the plaintiff concealing the additional medical records until after the first report was made.

The question is – who’s to blame? In the view of Justice Abrioux, there is “more than enough of blame to go around”.  His reasons are as follows:

[38]         I will now address the issue regarding the additional records which were provided to Dr. Pisesky well after his First Report.

 [40]         Without reviewing all the correspondence and what occurred between the parties, the plaintiff shares significant responsibility in my view, in light of the allegations of chronic pain, for not having obtained in a timely way documents from prior health care professionals, particularly for the two years or so prior to the Accident.  Had the plaintiff provided an MSP printout commencing two years prior to the Accident, as had been requested as early as the fall of 2015 and on several occasions thereafter, the records obtained after March 31, 2017 would have been produced to the defence much earlier than that….

[41]         But the defence shares a significant part of the blame as well.  When I review the correspondence, the requests made for records, and the plaintiff’s transparent replies, this was a case which cried out for a chambers application well before early July 2017, that is a month before the scheduled trial date.

[42]         There is also the fact that the plaintiff did refer at her examination for discovery in January 2016 to the difficulties she was having pre accident.  It will be up to the trier of fact to determine if she concealed the true nature of her pre accident condition but that is certainly not for me to do on this application,

[44]         The primary relief sought by both parties would have draconian consequences on the other were it to be granted.

[45]          If I were to rule the Supplementary Report inadmissible, then the defence would only be able to rely on Dr. Pisesky’s First Report and the trier of fact would be misled as to Dr. Pisesky’s actual opinions based on the additional documentation provided to him in July 2017…

[46]         On the other hand, if I admit the report into evidence in whole or in part, the plaintiff would not have the opportunity to properly address the opinions in the Supplementary Report which was only received on July 26, 2017.

[48]         The plaintiff’s submission was that if the Supplementary Report were admitted in whole or in part that the trial should be adjourned. That cannot occur. The jury has been selected.

[49]         I appreciate that both the plaintiff and the defendant would prefer this trial to proceed, but in light of the positions they have taken on this application, I see no other alternative to a mistrial.  This, in my view, will provide fairness to both parties.  They will now have the opportunity to put before the trier of fact the evidence they consider necessary based on the recently obtained records.

[50]         A new trial will also provide the defence to address some obvious deficiencies in the Supplementary Report, in particular Dr. Pisesky’s statements regarding the plaintiff’s credibility.

[51]         I declare a mistrial.