Coady Construction & Excavating Limited Plaintiff And: Town of Conception Bay South Defendant, 2022 NLSC 16

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Coady Construction & Excavating Limited v. Conception Bay South (Town) , 2022 NLSC 16 Date : February 3, 2022 Docket : 201601G3644 Between: Coady Construction & Excavating Limited Plaintiff And: Town of Conception Bay South Defendant Before: Justice Daniel M. Boone Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 24, 2022

Summary: The Plaintiff applied under Rule 38.01(1)(

b) for a ruling on the admissibility of expert evidence, which the Defendant intended to use on damages assessment. The Court decided that Rule 38.01(1)(

b) was not a suitable process for deciding on admissibility in this case, because the record was insufficient and the issue of admissibility could not be compartmentalized from the other issues in the litigation. Appearances: F. Richard Gosse Appearing on behalf of the Plaintiff

Jerome Kennedy, Q.C. and Amanda M. Buis Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: Hryniak v. Mauldin, 2014 SCC 7; Ind-Rec Highway Services Ltd. v. Miawpukek Band (1999), (NL CA), 172 Nfld. & P.E.I.R. 245, 528 A.P.R. 245 (Nfld. C.A.); White Burgess Langille Inman v. Abbott and Haliburton Co.,2015 SCC 23; 10565 Nfld. Inc. v. Canada (Attorney General), 2015 NLTD(G) 168; R. v. Abbey, 2009 ONCA 624; Anderson v. Canada(A.G.), 2015 NLTD(G) 181; Walsh v. TRA Company Limited, 2022 NLSC 6 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] This case is about whether the Court should decide the admissibility of expert evidence as a preliminary question. [2] The Plaintiff submitted the lowest compliant bid to the Defendant for a municipal project. However, the Defendant awardedthe contract to another bidder. Following a

summary trial, Paquette J found the Defendant liable for breach of contract, with damages tobe assessed. Damages are to be determined in a Rule 44 assessment, which has not yet been scheduled (Rules of the Supreme Court,1986, S.N.L. 1986, c. 42, Sch. D). [3] Each party intends to rely on expert opinion to support their respective positions on damages. [4] The Defendant’s expert is accountant David Howe. This application concerns the qualification of Mr. Howe as an expertwitness and the admissibility of his report.

The Plaintiff says that his opinion evidence should not be admitted as evidence at thedamages assessment hearing because his initial report quoted from statements made in a without prejudice compromise settlement offerdelivered by counsel for the Plaintiff.

The Plaintiff argued in its written brief that the report did not meet the test for admissibility ofexpert opinion because it violated the exclusionary rule — sometimes referred to as settlement privilege — that precludes the disclosureor use in evidence of settlement communications. [5] In its written brief in response, the Defendant conceded that the initial Howe report was inadmissible because it containedreference to settlement communications. However, the Defendant intends to utilize Mr. Howe as an expert and to adduce a revised reportby Mr. Howe at the Rule 44 assessment.

The Plaintiff says that any further report by Mr. Howe should also be excluded because he isstill implicitly relying on the settlement communications, and therefore he should not be qualified as an expert. The Plaintiff relies forthat position on Mr. Howe’s conclusions remaining precisely the same notwithstanding the excision of the reference to the settlementcommunications. [6] The Defendant argues that the Court should rule that Mr.

Howe’s revised report is admissible on the Rule 44 assessment. [7] The Plaintiff brings this Application under Rule 38.01(1)(b), and the Defendant relies on the same subrule for its position thatMr. Howe’s report is admissible. That subrule provides that the Court may at any time prior to a trial or hearing determine any questionas to the admissibility of evidence. The Defendant argues in the alternative that application of this subrule is not an appropriate means todecide whether Mr. How’s opinion evidence is admissible. [8] I have decided that qualification of Mr.

Howe as an expert and the admissibility of his revised report are not decisions thatshould be made as preliminary matters under Rule 38.01(1)(b). Those determinations ought to be made by the Court on the hearing ofthe Rule 44 assessment. Therefore, I have confined my decision to the question of the suitability of Rule 38.01(1)(b), and I have notdirectly addressed the qualification of Mr. Howe as an expert or the admissibility of his revised report. ISSUE 1. Is Rule 38.01(1)(

b) a suitable process in this case to determine the qualification of the expert or the admissibility of his revisedreport? ANALYSIS [9] Resolving the issue raised in this case requires consideration of the law governing the application of Rule 38, and of the legalprinciples invoked to determine whether to admit the opinion testimony of an expert. [10] Rule 38 is one of the several civil practice rules that are designed to provide for more efficient and cost-effective means to the

resolution of litigious disputes. The Supreme Court of Canada has encouraged trial courts to utilize these procedures to promote accessto justice and proportionate use of judicial resources: Hryniak v. Mauldin, 2014 SCC 7, at para. 2. [11] Efficiency and cost-effectiveness come at a potential price to the absolute justice and fairness that the common law presumeswill result from a full trial of all issues.

Therefore, it is essential that the court ensure that relative justice can effectively beaccomplished before utilizing any shortcut procedure. [12] The leading case on the application of Rule 38, is that of the Court of Appeal in Ind-Rec Highway Services Ltd. v. MiawpukekBand (1999), (NL CA), 172 Nfld. & P.E.I.R. 245, 528 A.P.R. 245 (Nfld. C.A.). The Court of Appeal said that thechoice as to whether to decide a preliminary question under Rule 38 is a discretionary one that must be approached after consideration ofcertain threshold questions.

Ind-Rec was not dealing with the application of Rule 38.01(1)(b), which allows for determination as to theadmissibility of evidence pre-trial (indeed, counsel did not refer me to any case where that subrule was considered by the court). However, adapting from the threshold questions identified in Ind-Rec, before determining an evidentiary question under Rule 38.01(1)(b), the court should be satisfied both that there is a discernible advantage in the litigation to compartmentalizing the evidentiary questionand that the question can be separated out for consideration.

Is there a discernible advantage in deciding the admissibility of the expert evidence on this Rule 38.01(1)(

b) application? [13] The discernible advantage required by Ind-Rec is measured against the court process as a whole and not from the point of viewof one of the parties. At paragraph 14, the Court of Appeal said that discernible advantage should manifest in either the disposition ofthe entire case or the simplification of the trial (and usually reduction of the time and costs required for it). [14] It would only be a rare case where a decision about the admissibility of evidence would have a discernible advantage in thatsense. In any civil trial the presiding judge may be required to make many evidentiary rulings.

However, most of those rulings will noteffectively end the trial or even considerably shorten it. Only rulings on the admissibility of documents or witness testimony that arecrucial to the proof of facts underlying a party’s case could possibly have that effect. Expert witnesses do not testify to the underlyingfacts of a case but help the judge to understand those facts. An adverse pretrial ruling on the qualification of one expert can beanticipated to result in the substitution of another expert.

No simplification of issues nor saving of trial time or costs will result frompreliminary determination of admissibility. [15] There is no reason to find that the outcome would be any different in this case. If the Court ruled on this application that Mr.Howe’s opinion is not admissible, then there is every reason to expect that the Defendant would seek another expert as this case is onewhere expert evidence is usually a factor in the outcome. The deadlines set by the Court for the production of expert reports to be usedon the damages assessment have passed.

However, no date for the hearing of the assessment has been set and although I have not beenasked to decide this point I would anticipate that as a matter of fairness the Court would extend the deadline. [16] The Plaintiff has therefore not demonstrated a discernible advantage to a pretrial ruling on the admissibility of Mr. Howe’sopinion evidence.

Can the issue of admissibility of the expert opinion be compartmentalized form the other issues in the litigation? [17] The second aspect to the suitability of the process involves consideration as to whether the Court can compartmentalize thequestion posed on the Rule 38 application. [18] The absence of discernible advantage is sufficient reason to dismiss this application.

However, as the parties argued the secondthreshold suitability question I will proceed to consider that issue. [19] A question can only be separated and dealt with as a preliminary matter if the record available is sufficient to allow the court toanswer the question and if the preliminary question will not come up and require consideration again during the remaining litigation. [20] The Defendant agrees that Mr. Howe’s report should not have included references to without prejudice correspondence, and itasked Mr. Howe to prepare a revised report without those references to the settlement offer.

He did so, and he prepared an Affidavit inwhich he stated that the information taken from the settlement correspondence could be removed from his opinion without impacting hisconclusions regarding the amount of the Plaintiff’s loss. His Affidavit and revised report also included statements that he understoodthat his duty as an expert was to provide impartial and unbiased opinion that is independent of the exigencies of litigation. [21] The Plaintiff says that Mr.

Howe cannot be qualified as an expert witness because any opinion that he gives will be influencedby the information inappropriately gleaned from the Plaintiff’s compromise offer. His opinion, says the Plaintiff, therefore would not bethe result of his independent work, uninfluenced by the exigencies of the litigation, and is therefore not evidence that the Court shouldconsider relying upon in assessing the Plaintiff’s damages. [22] The Supreme Court of Canada in White Burgess Langille Inman v.

Abbott and Haliburton Co., 2015 SCC 23 (“WBLI”) clarifiedthe proper framework for deciding whether a proposed expert witness should be allowed to testify. The court emphasized that anyconcerns about the qualification of an expert, including concerns about the expert’s impartiality or independence, ought to be tackledprior to admission of the testimony, and not only left to be considered by the trial judge in the process of weighing the evidence at theend of the trial. The WBLI analytic framework was described by Butler J (as she then was) in 10565 Nfld. Inc. v.

Canada (AttorneyGeneral), 2015 NLTD(G) 168, at para. 25, using the following helpful algorithm taken from the case commentary included with theWBLI case report: Expert evidence is admissible when 1) it meets the threshold requirements of admissibility, which are that

a. the evidence must be logically relevant; b. the evidence must be necessary to assist the trier of fact; c. there must be no other exclusionary rule; d. the expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfil the duty to the court to provide evidence that is i. impartial, ii. independent and iii. unbiased; and e. for opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose; and 2) it passes scrutiny at the gatekeeper stage, and the trial judge determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as a. relevance, b. necessity, c. reliability, and d. absence of bias [ 23 ] That analytical framework provides for the consideration of independence, impartiality, and lack of bias at both stages of the admissibility analysis.

Moreover, even if the expert evidence is admitted, those considerations continue to be factors for the trial judge to take into account in assessing the weight to be assigned to the evidence.

Although the concern of the court throughout is that the expert fulfill the requisite duty to the court to provide independent, impartial, and unbiased opinion to help the court understand the facts, the assessment of the expert’s ability and willingness to fulfill that duty is conducted differently at each stage. [ 24 ] At the first stage of the admissibility analysis, the process is described in the Supreme Court decision in WBLI : 47 … While I would not go so far as to hold that the expert's independence and impartiality should be presumed absent challenge, my view is that absent such challenge, the expert's attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that this threshold is met. 48 Once the expert attests or testifies on oath to this effect, the burden is on the party opposing the admission of the evidence to show that there is a realistic concern that the expert's evidence should not be received because the expert is unable and/or unwilling to comply with that duty.

If the opponent does so, the burden to establish on a balance of probabilities this aspect of the admissibility threshold

remains on the party proposing to call the evidence. If this is not done, the evidence, or those parts of it that are tainted by a lack of independence or impartiality, should be excluded. This approach conforms to the general rule under the Mohan framework, and elsewhere in the law of evidence, that the proponent of the evidence has the burden of establishing its admissibility. 49 This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert's evidence would be ruled inadmissible for failing to meet it.

The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible.

In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so. On the other hand, a direct financial interest in the outcome of the litigation will be of more concern. The same can be said in the case of a very close familial relationship with one of the parties or situations in which the proposed expert will probably incur professional liability if his or her opinion is not accepted by the court.

Similarly, an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court. I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence.

Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence. [ 25 ] The first stage of the enquiry into the expert’s duty component of the admissibility analysis is therefore conducted in the following manner: • The expert’s attestation of understanding and willingness to provide independent, impartial, and unbiased opinion is sufficient to meet the threshold for admissibility unless it is challenged; • If the opposing party challenges the expert’s willingness or ability to fulfill the requisite duty, the burden is on that party to demonstrate that there is a realistic concern that the expert is unable and/or unwilling to comply with that duty; • If the opposing party demonstrates a realistic concern, then the burden returns to the party presenting the expert to demonstrate on a balance of probabilities that the expert is able and willing to fulfill the duty; • The judge assesses the expert’s ability and willingness to fulfill the duty by considering the expert’s circumstances (i.e. expertise, interest or relationship with one of the parties) and the substance of the proposed evidence (i.e. advocacy, straying outside expertise, irrelevant considerations); • Although the burden is on the presenting party to establish the threshold requirement on the civil standard, the burden will be met by a showing that there is an absence of a clear unwillingness or inability to meet the duty. • If the presenting party meets that burden, then the threshold is crossed and the admissibility enquiry moves to the second stage. [ 26 ] In setting out the admissibility framework, the Supreme Court in WBLI recognized that the initial threshold might be crossed but with lingering concerns regarding the possibility that the expert might be biased or lack independence or impartiality:

(2) The Gatekeeping Exclusionary Discretion 54 Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan which I have discussed earlier, the judge must still take concerns about the expert's independence and impartiality into account in weighing the evidence at the gatekeeping stage.

At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence.

At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence. [ 27 ] The gatekeeping responsibility does not end with a discrete decision but, rather, continues to be exercised throughout the course of the trial. The result might be that an expert is permitted to provide a report and to testify, but the judge may later determine that the report or testimony ought to be excluded from consideration on the ultimate decision. [ 28 ] As Butler J put it in 10565 Nfld.

Inc. following her decision that an expert opinion was initially admissible: 73 The overall reliability of the records and the Statement of Loss in particular will depend on the evidence as a whole, including Mr. Penney's own evidence and that of other witnesses who generated some of the numbers on which the Statement of Loss relies. Mr. Penney's ability to remain true to his attestation to give impartial, independent and unbiased evidence will continue to be under my watchful eye.

This will determine the overall weight of the Statement of Loss or could conceivably result in it being excluded later. [ 29 ] In the recent decision in Walsh v. TRA Company Limited , 2022 NLSC 6 , Noel J ruled, during the course of a trial, that proposed expert evidence met the threshold first stage admissibility test.

However, on giving his reasons following the conclusion of trial, he found that the report and testimony were unreliable and he excluded the evidence from his considerations in his role as a fact finder. [ 30 ] Even in a case where the judge admits the expert opinion evidence, the reliability of that opinion continues to be a material issue throughout the trial. At the conclusion of the trial, the judge or jury will consider any still-lingering reliability concerns in

assigning weight to the opinion relative to other evidence. [ 31 ] The admissibility framework set out by the Supreme Court in WBLI was adapted from one set out by the Ontario Court of Appeal in R. v. Abbey , 2009 ONCA 624 . In that case, Doherty JA described the difference in the way that reliability is considered at the gatekeeping stage, as opposed to ultimate reliability: 142 In performing the "gatekeeper" function, a trial judge of necessity engages in an evaluation that shares some of the features with the evaluation ultimately performed by the jury if the evidence is admitted.

The trial judge is, however, charged only with the responsibility to decide whether the evidence is sufficiently reliable to merit its consideration by the jury. The integrity of the trial process requires that the trial judge not overstep this function and encroach onto the jury's territory. In assessing threshold reliability, I think trial judges should be concerned with factors that are fundamental to the reliability of the opinion offered and responsive to the specific dangers posed by expert opinion evidence.

Trial judges, in assessing threshold reliability, should not be concerned with those factors which, while relevant to the ultimate reliability of the evidence, are common with those relevant to the evaluation of evidence provided by witnesses other than experts. For example, I would not think that inconsistencies in an expert's testimony, save perhaps in extreme cases, would ever justify keeping the expert's opinion from the jury. Juries are perfectly able to consider the impact of inconsistencies on the reliability of a witness's testimony. [ 32 ] Stack J in Anderson v.

Canada (A.G.) , 2015 NLTD(G) 181 made that same point: 39 Issues such as alleged bias and whether the prejudicial effect of the expert evidence will outweigh its probative value are to be assessed by the trial judge in his "gate-keeper" role (see White Burgess Langille Inman v. Abbott and Haliburton Co. , 2015 SCC 23 (S.C.C.), per Cromwell, J.). Canada has not identified anything in the proposed testimony of Dr. Enns in the subject areas in which he is qualified to testify that would prohibit him from testifying.

Merely because he was hired by different plaintiffs in respect of Indian Residential Schools in 2004 does not mean that he is unable to discharge his special duty to the court to provide fair, objective and non- partisan assistance ( White at para. 2). Nor is there any basis to the remainder of Canada's complaints at this threshold level. These issues all go to the 40 At the end of the trial the testimony of Dr. Enns and the Report will be assessed in the context of the entirety of the evidence.

To the extent that his opinions are: 1) based upon facts that are not otherwise proven, 2) do not logically follow from the facts upon which he relies; 3) are beyond his competency; or 4) are otherwise defective they will be ascribed little or no weight. [ 33 ] My description of the analytical framework for considering the admissibility of expert evidence is only presented for the purpose of my consideration whether this Rule 38 Application is a suitable vehicle for the conduct of the admissibility exercise in this case. [ 34 ] The Plaintiff argues that the question of bias arising from the expert’s use of the settlement correspondence is material to the determination of admissibility at both the threshold and gatekeeping stage.

In its written brief, the Plaintiff asserts: … there is a logical concern for bias resulting where the proposed expert would be influenced by the privileged information insofar as opinions may be informed by knowledge inappropriately gained. The risk of identifying reasons to fit conclusions already formed, rather than allowing conclusions to result after appropriate analysis, demonstrates sufficient risk of bias to prohibit admissibility of evidence. (

a) At a threshold level, the bias of identifying reasons to fit conclusions, and not vice versa , disqualifies a “properly qualified” expert notwithstanding assertions that the duty to provide fair, objective and non-partisan evidence is recognized. (

b) Assuming that the threshold test is met, to be admissible, the proponent of the expert evidence must still demonstrate that the benefits outweigh the risk of the dangers associated with expert evidence. [ 35 ] The threshold issue framed by the Plaintiff is not accurately based in the WBLI framework. At the threshold stage, the determination will be based on the circumstances of the expert and the substance of the revised report. The Plaintiff’s concerns about

bias only arise through comparison of the revised report with the original. The Plaintiff characterizes the threshold question as a determination whether there is a “risk of bias.” However, risk of bias only describes the initial burden in the WBLI framework on a party opposing admissibility to show that there is a realistic concern that the expert will be unable or unwilling to fulfill the duty to the court.

The decision to be made at the threshold level is whether the expert is able and willing, or is clearly unable or unwilling, to fulfill that duty, not whether there is a risk that the expert might be unable or unwilling. [ 36 ] Even a better-defined threshold decision regarding the admissibility of Mr. Howe’s opinion could not be made on the record on this Application.

A sufficient record for a threshold WBLI assessment of admissibility of expert evidence could conceivably be presented in support of a Rule 38 application, but only in very limited circumstances in which concerns leading to a conclusion of clear admissibility are unanswered by the party presenting the expert evidence. Otherwise, the necessity for cross-examination and the consideration of other material factors in order to apply the burden of proof on the threshold question would not be appropriate in the setting of a Rule 38 application. It is not possible to determine whether Mr.

Howe’s opinion continues to be influenced by the excluded settlement communications without testing his revised opinion against the process used to develop it and the facts relevant to the calculation of damages. [ 37 ] However, even if there could be a sufficient record developed to consider an alleged case of clear admissibility, it would still not be appropriate for the threshold question to be carved out from the rest of the decision on admissibility and from the trial judge’s ultimate consideration of the evidence if it is admitted.

The WBLI framework contemplates a continuum of consideration of reliability informed by the judge’s assessment of the expert and the expert’s report, for impartiality, independence, and lack of bias. Further, a full answer to the threshold question includes consideration whether the expert opinion can be characterized as advocacy, or strays outside the expert’s field or qualifications, or is based on irrelevant considerations. These questions cannot be answered by looking only at the initial expert opinion and the revised opinion, or even through comparison of the two versions.

Answering these questions requires full appreciation of the issues in the case. [ 38 ] Therefore, the Plaintiff has not identified a threshold admissibility question that could or should be decided on this Rule 38 application. [ 39 ] This conclusion is even clearer at the gatekeeping stage than it is in respect of the threshold issue.

In order to conduct the gatekeeping analysis, the court must consider not only the circumstances of the expert and the substance of the expert’s report but also the bigger picture of the litigation in order to decide whether on consideration of reliability, relevance, and necessity there is a net gain to the litigation in admitting the evidence.

This assessment ought to be conducted by the trial judge and really can’t be accomplished by a judge hearing a Rule 38 application. [ 40 ] This point was recognized by the Supreme Court in WBLI: 55 I must say a brief word about the procedural context in which this case originates — a

summary judgment motion. (I note that these comments relate to the

summary judgment regime under the Nova Scotia rules and that different considerations may arise under different rules.) It is common ground that the court hearing the motion can consider only admissible evidence. However, under the Nova Scotia jurisprudence, which is not questioned on this appeal, it is not the role of a judge hearing a

summary judgment motion in Nova Scotia to weigh the evidence, draw reasonable inferences from evidence or settle matters of credibility: Coady v. Burton Canada Co. , 2013 NSCA 95 , 333 N.S.R. (2d) 348 (N.S. C.A.), at paras. 42-44 , 87 and 98; Fougere v. Blunden Construction Ltd. , 2014 NSCA 52 , 345 N.S.R. (2d) 385 (N.S. C.A.), at paras. 6 and 12 . Taking these two principles together, the result in my view is this. A motions judge hearing a

summary judgment application under the Nova Scotia rules must be satisfied that proposed expert evidence meets the threshold requirements for admissibility at the first step of the analysis, but should generally not engage in the second step cost-benefit analysis.

That cost-benefit analysis, in anything other than the most obvious cases of inadmissibility, inevitably involves assigning weight — or at least potential weight — to the evidence. [ 41 ] Finally, of course, residual concerns about bias, partiality, or lack of independence can still be considered by the judge in utilizing the expert testimony to weigh and assess the evidence at trial. The assessment of the reliability of expert evidence is a continuous process that threads through both stages of the admissibility analysis and the ultimate finding of fact. [ 42 ] The threshold reliability of Mr.

Howe’s opinion ought to be considered by the same judge who will consider whether there is a net gain to the litigation in admitting it, and the same judge who will ultimately decide whether and how much to rely on it. CONCLUSION and DISPOSITION [ 43 ] The Plaintiff has not demonstrated that the issue of admissibility of the evidence of Mr. Howe is one that is appropriate for determination on a Rule 38 application. The Plaintiff’s Application is dismissed.

Although the Defendant is successful on this Application, the Application would not have been taken at all had Plaintiff’s expert not referred to the without prejudice correspondence, which the Defendant concedes occurred through a mistake of both counsel and the expert. The Plaintiff’s initial Application to determine the admissibility of the original report with references to material clearly subject to an exclusionary rule may well have presented a threshold admissibility issue amenable to determination pursuant to Rule 38.

The Defendant’s concession occurred only following the filing of the Plaintiff’s Rule 38 Application and brief. Although costs would ordinarily have been awarded to the successful party, in these circumstances, I make no order as to costs. _____________________________ Daniel M. Boone Justice