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Personal injury bar divided on videotaping

|Written By Jennifer McPhee

The personal injury bar is “deeply split” over the value of videotaping defence medical examinations, says one lawyer involved in the debate.

If the videotaping applied equally to both sides, it could be a “win-win” for everyone, says Kelly Tranquilli.

The plaintiff side of the equation has been increasingly asking for, and receiving, court orders to videotape the independent examinations, says Kelly Tranquilli, a member of the insurance defence and health law practice groups in the London, Ont., office of Lerners LLP. But the defence bar has “very valid” concerns about the prejudicial effect of these recordings, she tells Law Times.

“The plaintiff’s lawyers maintain that it will assist in keeping the defence experts honest, while the defence sees it as a tactical ploy that gives the plaintiff an unfair advantage,” says Tranquilli, adding the bars are “deeply split on the value of the recordings.”

In 1992’s Bellamy v. Johnson, the Court of Appeal declined a plaintiff’s request to audiotape a defence psychiatric examination, but recognized that the court does have jurisdiction to order such recordings in appropriate circumstances, says Tranquilli.

The issue of taping defence medical examinations then seemed to “wither on the vine” for more than a decade, says Tranquilli.

“Certainly the plaintiff’s counsel were asking for it, but the courts were only awarding it in the rarest of circumstances,” she says.

But, in 2003, the plaintiff bar began a much more concerted, aggressive, and successful effort on this front, and cases are starting to line up on both sides, she says.

“It started in the area of psychiatric and psychological assessments, but now it is starting to migrate into all types of assessments,” says Tranquilli.

Over the last two years, a number of decisions have emerged, which are developing a set of principles and factors for a court to weigh and consider when deciding whether to order videotaping, she says.

The plaintiff’s bar argues videotaping assessments makes the process fairer for plaintiffs by encouraging the defence assessor to conduct a proper, objective examination and to produce an accurate report.

Without these recordings, some plaintiffs are at a disadvantage when asked to rebut evidence about what the defence experts say transpired during an exam, says personal injury plaintiff lawyer Maia Bent from Lerners LLP.

“The plaintiff may be brain-injured, they may be unsophisticated, they may be emotionally traumatized,” she says. “This makes them poor historians.” She adds that juries tend to find doctors inherently credible, but a plaintiff’s credibility often comes under attack as part of a standard defence strategy.

“So if there are different accounts of what occurred in an independent examination, the plaintiff is often at a disadvantage, especially if they are perceived as having something to gain,” she says.

“I think basic fairness would suggest [videotaping] would be something that should be considered,” says Bent.

“I have trouble seeing why anybody would object to objective evidence of what occurred at the [independent medical examination],” she says. “It only hurts those who are inaccurate or unfair.”

Tranquilli says she sees both sides of the issue, but argues defence lawyers have “very legitimate” concerns about the prejudicial effect of allowing these recordings, especially since the plaintiff’s own medical examinations are not typically videotaped.

It’s extremely prejudicial for a jury to see that the defence expert’s assessment was recorded to ensure accuracy and integrity, but that the plaintiff’s expert was not subjected to the same conditions, says Tranquilli.

 “It may mislead the jury into preferring one expert’s opinion over the other,” she says. “And it wouldn’t be based on their actual findings on the evidence; it would just be based on the impression of the existence of the video or the recording itself,” she says.

Tranquilli also questions whether the purpose of these recordings is really to ensure objectivity and fairness, or whether the recordings will become another tactical tool used by plaintiffs’ lawyers to bolster their clients’ credibility.

She adds that many medical experts feel this process undermines their integrity, and simply refuse to participate, which leaves the defence bar with a limited pool of willing experts to call upon, and sometimes they can’t find anyone.

She says that in order to resist the videotaping, defence counsel are having to file affidavits from experts explaining why they object, and then the defence expert has to be produced for cross-examination.

“That’s just not happening on the plaintiff side, so it’s making it more and more onerous and difficult for the defence to have access to the discovery process and to fairly respond to the case,” says Tranquilli.

“If the plaintiff bar truly wants to sell this as a fair process, then what’s good for the defence bar has to be equally applicable to the plaintiff expert,” she says. “And we have to have a clear understanding about the conditions under which these recordings are going to be made, and the best way to do it is through an amendment to the Rules [of Civil Procedure].”

The rules committee could set minimum standards for making sure tapes haven’t been tampered with or edited, and create guidelines for where in a room the recording equipment should be placed, so that it’s as unobtrusive as possible, says Tranquilli.

“And then who gets a copy of the recording and when do they get a copy of the recording?” says Tranquilli.

Bent agrees that guidance on these issues would be helpful.

“I don’t think it necessarily has to be encapsulated in the rules, although it could be,” she says.

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