Tips on Maximizing the Three Expert Rule

Case Study: Navigating Expert Restrictions for Strategic Case Development

Under the current rules in British Columbia, a plaintiff lawyer is restricted to having a maximum of three experts per motor vehicle injury case as outlined in Section 12.1(2) of the Evidence Act. This limitation poses a significant challenge for lawyers in ensuring they have access to all the essential evidence required to build a strong case for their clients.

By restricting the number of experts that can be called upon, the rule may hinder the thorough examination of complex issues that often require a diverse range of expertise to ensure that the court has a comprehensive understanding of the issues that can then lead to a fair settlement. This constraint can impact the quality and depth of the evidence necessary, potentially affecting the outcome of their cases.

As such, legal practitioners may often find themselves grappling with the dilemma of strategically selecting the most crucial experts to call upon.

In the following case study, we would like to share our insights on how we have worked with lawyers to work around the three expert rule.

Client Profile: Background, injuries, challenges.

Case study: In the subject head on accident, William, age 38, sustained a head injury which had resulted in chronic headaches and extensive soft tissue injuries. As a result of his serious injuries, and long period of immobility, his activity tolerance was very low, he had significant sleep disturbances, cognitive limitations, chronic pain and he was chronically anxious and depressed.

Following the accident, William was unable to return to his  pre-injury occupation as a restaurant owner and chef. and therefore was no longer working. He could not parent his 18 month toddler, due to his low activity tolerances and intolerance for noise. He was unable to participate in high impact sports, leisure and social activities due to chronic pain, headaches, anxiety, low mood, and fatigue. he had to rely on his wife to do the parenting, complete the housework, and yard work.

Pre-accident, William was able to complete housework, basic home repairs, and yard work, without any limitations. He used to work 10 to 12 hour days as a chef, traveled extensively, participated in high impact sports, enjoyed his relationship with his wife and had a wide circle of friends.

Legal Considerations: Limitations on the number of experts.

In light of William's extensive injuries and limitations, the lawyer was in a difficult position to determine which three medical experts could address client's limitations comprehensively to address Client's significant and diverse set of symptoms and limitations.

The challenges arise due to the limited number of experts allowed and the restricted scope of practice for each practitioner to provide an expert opinion within their scope of practice.

In other words, which experts are essential in bringing to light William’s diagnosis, prognosis, causation, functional and daily limitations? No doubt, this question that would be most prevalent in the lawyer’s mind.

Having worked with William and the lawyer, allow me to share the choice of experts, which made a significant difference and resulted in gaining a favourable settlement for William.

Service Utilization: Strategic selection and coordination of expert services to address key aspects of the case within regulatory constraints.

A key factor and responsibility of the lawyer is to perform a careful and in-depth analysis of your case to determine the type of information needed beforehand in order to choose your three experts.

Once the analysis is completed, it is helpful and crucial to think strategically to utilize the three-expert rule to your advantage that will bring to light the necessary information required and yet manage to stay within the regulatory boundaries and financial constraints.

Expert #1: Neurologist. In William’s case having a neurologist as one of the three experts was essential. The neurologist was able to provide a diagnosis of mild traumatic brain injury, and confirmed the cognitive, sleep and mood difficulties were due to the subject accident (causation). The neurologist was able to provide valuable data on causation, diagnosis and prognosis which laid the foundation for the second and third experts.

Expert #2: Psychiatrist. The psychiatrist provided valuable insight and depth into the mental health aspect of William’s injuries subsequent to the mild traumatic brain injury. William was diagnosed with post traumatic stress disorder (PTSD), adjustment disorder, and a chronic pain disorder by the psychiatrist. These diagnoses provided significant underpinnings in understanding his ongoing and extensive residual difficulties arising since the subject accident. Without these mental health diagnoses, it would be difficult to understand why William’s level of functioning was so profoundly impacted.

Expert #3: occupational therapist. The occupational therapist completed a 3-day in-clinic PsychoEmotional Cognitive Functional Capacity Evaluation and an in-home evaluation for the Cost of Future care Analysis to provide an in depth understanding of William’s overall functioning with respect to work, housework, childcare, social and leisure pursuits and relational abilities.

The findings of the PsychoEmotional Cognitive Functional Capacity Evaluation confirmed

• William’s physical, cognitive and psychoemotional functioning had impacted his ability to work and he was non-employable as a result.

• The findings of the evaluations established his need for ongoing services (medical and non-medical) which were clearly configured and costed.

• Furthermore, William’s mental health difficulties of PTSD, adjustment disorder and chronic pain had profoundly impeded his ability to work, parent his 2-year old son, be an active partner to his spouse, participate in social and recreational activities, socialize and complete household maintenance (cooking, cleaning, repairs, yard work, grocery shop) and drive.

Outcome: Successful case development and resolution despite the limitation on the number of experts allowed.

By choosing the three specific experts strategically, it allowed the case to be fully developed and clearly portrayed. The foundation for each subsequent expert had been carefully constructed by thoughtful and deliberate planning and execution by the lawyer. The timing and sequence of expert evaluations and reports was the secret ingredient to ensuring success. It was essential that each expert was able to complete their independent, separate [and yet interconnected] evaluations with the necessary information required to form robust and objective opinions.

The two medical experts diagnosed underlying and undiagnosed physical and mental health conditions that arose post injury, while the third expert objectively identified and confirmed William’s resulting functional limitations which have impacted his physical, cognitive, emotional, relational and functional capacity. Together the three experts revealed an accurate, objective and complete picture of William’s diagnosis, prognosis, and functioning, which has resulted in a residual and extensive lifelong disability due to the subject accident .

As a result, the personal injury lawyer was able to garner a higher settlement for her client then if the lawyer only had medical evidence relating to his physical injuries. The tiered and layered process of carefully selecting three experts to highlight medical and comprehensive functional limitations resulted in a significantly favourable settlement.

Have a case that needs strategic expert input?

We support lawyers in building strong, defensible cases within the 3-expert rule by offering: PsychoEmotional FCEs, Functional Capacity Evaluations (1-day or 2-day), and Vocational Assessments — all thoughtfully structured to maximize clinical insight and settlement value.

Contact us to book a 15-minute consultation — we’ll help determine the best fit for your client’s needs.→ Contact Us