One of the biggest impediments to access to justice in personal injury cases today are the escalating costs of expert fees. The cost associated with expert reports and the fees charged to testify at trial have made trial costs prohibitive in too many cases.
—Brian A. Horowitz, Horowitz Injury Law
Witnesses are critical to any case in the personal injury realm. But all witnesses are not created equal. In fact, there are two very different types of witnesses your lawyer will attempt to gather for your claim; it all comes down to experience and expertise. And make no mistake, this can come with a hefty price tag.
In Layman’s Terms
The first type of witness that comes to mind for most is the lay witness. Their experience is simply that they witnessed the incident in question, or observed the plaintiff’s injury. They can, among other things:
- Recall and testify about what they saw
- Help establish exactly what happened
- With certain restrictions, sometimes provide opinion-based evidence taken from their observations. Examples of this might include estimating speed and/or distance of a vehicle; estimating approximate age range; recognizing certain things, like a person’s face, or their handwriting.
There is normally no charge for a lay witness to testify, other than modest conduct money.
An Expert in the Matter
All of this is in direct contrast with the other type of witness — the expert witness. They were not at the scene of the incident in question, and they do not make “estimations”. As professionals, their job is to provide the court with expert insights and knowledge-based opinion evidence drawn from their training, skill and experience that wouldn’t otherwise be available to the court from lay witnesses.
Rule 53 requires an Acknowledgement of Expert’s Duty, to ensure that any insights or opinions given must be completely impartial, unbiased, and based solely on the expert’s specific knowledge and area of expertise, as it pertains to the injury or issues in question.
Expert witnesses can include, but are not limited to:
- Family doctors, medical specialists and other health care professionals
- Mental health professionals
- Pain Management specialists
- Accident reconstructionists/Engineers
- Life care planners
- Accountants and Actuaries
Unfortunately, all of this expert testimony comes with a price tag — and a substantial one, at that. The costs for expert witnesses continue to escalate, to the point that many personal injury victims may be at risk of failing to obtain the justice they deserve.
According to Brian A. Horowitz, who has been handling personal injury cases for nearly 35 years, “In complex medical malpractice cases, it’s not uncommon for expert fees to exceed $100,000.00, or more, which greatly restricts access to justice in so many meritorious claims.”
And while the Simplified Procedure process in Ontario has been extended this year to cases up to $200,000, presumably “making it easier for families, businesses and individuals to resolve their legal issues quickly and affordably”, this doesn’t necessarily apply when expert witnesses are involved:
“With the amendments to the simplified procedure under the Rules, expert fees/disbursements have been capped at $25,000.00. With this monetary cap, practically speaking, the parties are going to be restricted to calling only one expert witness at trial. This reality will greatly reduce the number of cases that can appropriately proceed to trial under the simplified procedure, even though the value of the case might be well under the $200,000.00 monetary limit.”
With the continued escalating costs of expert witnesses, the Court Appeal for Ontario has made some positive steps in recent years, with decisions that have made a clear distinction between participating and non-participating experts under Rule 53; this has reduced the requirement and expense of formal expert reports for treating doctors.
Expert witnesses often play critical and very important roles in the process of litigation in a personal injury case. It’s essential that the province continue to work to make this process more affordable and accessible for personal injury victims, improving access to justice for those who quite often need it the most.
Horowitz Injury Law has nearly 35 years of experience securing the most relevant and experienced expert witnesses to help get the results you need. If you have a personal injury claim, call today for a free consultation: 416-925-4100.
