Where an expert's report has not been served in accordance with UCPR r 31.18 by either party, and no leave has been granted under r 31.18(3), the report can only be tendered if the expert attends court, there is consent, or an affidavit is available. A trial judge is not obliged to remind counsel of the possibility of applying for leave under r 31.18(3). Separately, an erroneous finding of fact unsupported by any evidence, where that finding is critical to the rejection of a party's case, constitutes a miscarriage of justice requiring a new trial where the appellate court cannot be satisfied the decision was correct.
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