Babcock v. Destefano - The Case of the Disappearing Expert

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Article Summary

While a disappearing rabbit in a hat makes for an interesting magic trick, the case of Babcock v Destefano 2016 ONSC 7380 reflects the risks of an expert who disappears after the retainer has been accepted.

We’ve all been there. You carefully select the medical expert, and yet, as the date approaches, your expert witness has suddenly disappeared (or wants to disappear). Such was the case in Babcock v Destefano.

The personal injury action was scheduled for March 27, 2017. In anticipation Wawanesa (the OPCF-44R defendant) brought a motion seeking that the plaintiff be examined by various medical experts. Having failed to seek its defence examinations prior to the two pre-trials, the court granted a sole defence medical by neurologist Dr. Watson and denied the other requests.  

To minimize any prospect of delay of the trial, Wawanesa was ordered to have the report by Dr. Watson served upon the plaintiff by October 8, 2016 or the evidence would not be permitted to be introduced at trial (subject to the judge’s orders).

The plaintiff attended at the assessment by Dr. Watson. However, weeks before the deadline, Dr. Watson informed Wawanesa that he would be unable to provide the report as he was overwhelmed with work, could not work at full capacity, had too much on his plate, this was a complex file, and he could not understand the imposition of the short deadline. 

Attempts by Wawanesa to have Dr. Watson reconsider were unsuccessful.  By way of motion Wawanesa sought an appointment with another neurologist, Dr. Sawa, whose report would be available by January 31, 2017, past the strict timelines previously imposed. 

The plaintiff opposed the motion on the grounds that it was duplicitous.  However, the major concern was that if the examination by Dr. Sawa proceeded, his report would be available just 55 days before the scheduled start of the trial thereby jeopardizing the trial itself. 

The court disagreed with the argument of duplicity, noting that given the circumstances it was appropriate to consider whether Wawanesa should be able to repair the effect of Dr. Watson’s withdrawal by having the plaintiff examined by Dr. Sawa.  

The court recognized that in granting Wawanesa’s motion the plaintiff would have to scramble to obtain a responding report from a neurologist. Moreover, the opinions of one the other experts already retained by the plaintiff could also be affected by the report of Dr. Sawa.

The court balanced the unfairness in requiring Wawanesa to proceed to trial without having any defence medical evidence to put before the jury with the risks that the trial date could be compromised if the plaintiff was not able to effectively respond.

After scolding the parties for having failed to leave the compilation of the medical evidence for trial to the last minute, the court concluded that the plaintiff was required to attend the examination by Dr. Sawa.  

To preserve the trial date the court once again imposed strict timelines on the delivery of the expert report, citing (with knowledge of irony) that if the date was missed, Dr. Sawa’s evidence would not be permitted to be introduced at trial.

Holding off on exercising your right to a medical examination can save costs on a file, but it can also lead to disaster. Disappearing experts are nothing new. From the expert who avoids being summoned to the expert that has an extended two months vacation during the time of trial, we’ve seen it all. Having legal counsel that can manage the unexpected, while making it appear as easy as a magic trick, is key.   


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