Background
The plaintiff, suing by his tutor, alleges that negligent management of his mother’s labour at the Royal Hospital for Women caused a delay in delivery, oxygen deprivation and hypoxic-ischaemic encephalopathy at or around his birth. The defendant contends the injury was instead caused by fetal inflammatory response syndrome arising from chorioamnionitis and funisitis.
The plaintiff had already served reports from neonatologist Dr Andrew McPhee and occupational therapist Ms Avril McElwain. He later sought leave, after applicable deadlines, to serve reports from Professor Simon Mitchell, a neonatologist, and Ms Erika Skibby, an occupational therapist. The application was governed by UCPR rr 31.20 and 31.28, including the requirement for exceptional circumstances for late expert evidence.
The Court’s Holding
Emmett J granted leave for the plaintiff to serve Professor Mitchell’s liability report, but only if the plaintiff did not rely on any of Dr McPhee’s three previously served reports. Although the defendant’s later neonatology evidence on the inflammatory-cause theory had materially changed the forensic landscape, the plaintiff had not shown that Professor Mitchell possessed a relevant sub-specialty or expertise lacking in Dr McPhee. Different opinions from experts in the same discipline did not justify reliance on both.
The Court likewise allowed the plaintiff to serve Ms Skibby’s quantum report only on condition that he not rely on Ms McElwain’s report. The pending autism spectrum disorder assessment and anticipated further expert evidence constituted exceptional circumstances, but fairness, cost and case-management considerations did not permit two overlapping occupational therapy experts. Costs of the motion were costs in the cause, while the plaintiff was ordered to pay the defendant’s costs thrown away by both expert changes.
Key Takeaways
- Late expert evidence may be allowed where exceptional circumstances exist, including a materially altered forensic landscape.
- A party ordinarily cannot retain multiple experts in the same discipline merely because they express different opinions.
- The Court may permit an expert substitution on terms excluding the earlier expert’s evidence and requiring payment of thrown-away costs.
Why It Matters
The decision illustrates the Supreme Court’s active control of expert evidence in medical-negligence litigation. A party seeking a new expert must identify more than a preference for a different opinion; it must justify why multiple experts are necessary or accept that the new expert replaces the old one.