How Not to Be an Expert Witness
and not help one’s expert witness consulting practice
One bit of advice young lawyers are given – much easier to follow in the brave new world of reasons for judgment online and so easily searched – is to look for cases in which judges have commented on the expert’s objectivity. The words in square brackets are my interpolations for clarity.
From a trial decision not too long ago, about a witness who testified for the side that ultimately won at trial but lost on appeal.
- Dr. S. called by the Plaintiffs, was qualified as an expert to give opinion evidence in the following areas:
- Dr. S. has the following formal educational background …. [DC: a bunch of degrees including 2 bachelor of science degrees, an LLB, LLM and SJD. I pointed out the last two degrees to a colleague who has them, too, from the same source. ]
- Dr. S struggled to find anything …. [that certain defendants] did that would be complimentary to them….
- I thought it peculiar that, despite curbing his areas of expertise during the qualification process, he insisted on returning to the forbidden areas ..
- He further said, “It’s the personal responsibility of everybody, everybody is engaged in doing health and safety and they know how to think about risks and figure out what the reasonable thing to do is in the circumstances.”
- Dr. S had duties so extensive for each person in the chain, from the CEO down to the workers, that there was little likelihood of any time remaining for production … .
- Dr. S was obsessed with the … X Report … which the Court did not have the benefit of and which on the face of the evidence was a generic model with little or no practical application … [DC to the defendant about whose conduct the expert was testifying] as Dr. S held little knowledge of the mining industry [DC: the industry of the defendant]
- [DC: The experts suggestion as to what might have been done to alleviate some of the problems that led to the incident that resulted in the injuries] … is not even a ripple in a windstorm but rather a theory divorced from reality …
- As I listened to Dr. ’s evidence and latterly studied his report, I was driven to focusing on his lack of objectivity and practicality …
- In the result, Dr. S’s evidence was a collection of anachronisms and clichés; an academic approach with little or no application to [the defendant] at the relevant time, directed solely to criticism of [the defendant’s] operation, all of which demonstrated little value and assistance to the Court because of its utopian viewpoint.
Ouch.
Other than that, the trial judge had no issues with the expert’s evidence.
Bear in mind that this is only one judge’s view about the witnesses evidence in this case. But, if the trial judge was right, and if we’re to assume the problems with the witnesses evidence were that blatent that they ought to have been known before the trial, then why did the very competent plaintiffs’ lawyers call that wtiness?
He might have been all they had on the issue. Sometimes you have to go with the person you take to the dance.
The case is easily found by those of you who know how to look. There is no purpose served by posting the citation.
Mr. Cheifetz writes: “One bit of advice young lawyers are given – much easier to follow in the brave new world of reasons for judgment online and so easily searched – is to look for cases in which judges have commented on the expert’s objectivity.” This raises a question that I’ve often asked – why is it that even a layperson can go online and search this or that medicolegal expert witness proffering expert testimony in this or that Ontario personal injury case – order the hits chronologically – and read prior case after prior case after prior case in which that very expert has been rebuked by the trier of fact for having proffered highly partisan/biased testimony? Surely “young lawyers” (and older lawyers) ought to confront the opposing expert witness with prior adverse judicial comments which go to the issue of objectivity/impartiality? And yet, in the Ontario personal injury context, this is done in only the rarest of cases. Why is that? I’ve often asked this question but have yet to receive an answer. The long-time systemic failure to check for prior adverse judicial commentary aimed toward expert witnesses and adduce it to challenge opposing experts in the qualification phase at trial is arguably part of the reason Justice Osborne mentioned a proliferation of “hired guns” inhabiting the Ontario civil justice system.
Back in 2004 the judge in an Ontario SC personal injury case ruled, without explaining why, that adducing prior adverse judicial comments aimed toward a medicolegal expert witness wasn’t permissible:”…the fact that Dr. ABC has been the subject of negative judicial comment respecting his conduct as an expert witness in other cases is not the proper subject of cross examination in this case…. I do not wish to be understood to say that this line of questioning is impermissible under any circumstances. If a satisfactory evidentiary basis is laid it may become relevant.”
Skip forward to 2010, shortly after changes to the Rules of Civil Procedure when a trier of fact, without explaining why, allowed prior adverse comments in a personal injury decision lamenting the quality of expert testimony: “…How are long time plaintiffs’ and defendants’ experts to be “trusted” to change their stripes?…”
But for the two excerpts above, in the Ontario personal injury context at least, there is almost no judicial discussion of whether/when to allow prior adverse judicial commentary to be adduced to challenge opposing experts (one Ontario judge said in a ruling that the issue is one that might best be dealt with by the Rules Committee).
As a consequence of the silence on this topic, Ontario’s personal injury context, medicolegal experts have almost never been confronted by prior negative judicial comments regarding partisan and/or unqualified “expert” testimony. But the problem which arises when “young lawyers” fail to check for prior negative judicial commentary is worsened when the (unnoticed) judicial rebukes go to a lack of qualifications rather than “mere” perpetual partisanship/bias. This systemic failure has resulted in unqualified expert witnesses proffering unchallenged “expert” testimony in areas in which previous triers of fact have ruled them unqualified. This has resulted in some “experts” duping triers of fact into giving their expert testimony more weight than is appropriate, when for example, a general practitioner repeatedly masquarades as an orthopaedic surgeon, even after having been warned by a trier of fact in a previous case not to mislead the court in this way. And it is nothing short of stunning to search the prior adverse comments aimed at a prolific medicolegal expert only to find that in a previous case, under aggressive cross-examination, he “conceeded to a lack of training and competence” in the very area in which he was proffering “expert” testimony. How is it possible for an expert witness to confess under oath to being unqualified and then only weeks later show up in cases proffering unchallenged “expert” testimony is the very area he had admitted to lacking training and competence?
The LSUC says lawyers have a duty to thoroughly check opposing expert witnesses and that this includes checking for prior adverse judicial comments and challenging the opposing expert whenever appropriate to do so. And yet clearly this is rarely done. One law professor mused that the reason may be that the system needs its “experts” (they are the “grease” that allows the system to grind along) and that confronting them with prior judicial rebukes would lead to an “expert chill”.
Mr. Cheifetz has raised an very interesting issue – one that has long baffled me.
Here are a few questions which arise from this column on expert witnesses. Do lawyers have a professional duty to check and challenge the qualifications of opposing expert witnesses? Does this duty (if there is a duty) include checking for prior adverse judicial comments and adducing them to challenge opposing experts during the qualification of experts phase? Justice Goudge made much of the failure of criminal defence lawyers to challenge Dr. Charles Smith with Justice Dunn’s prior adverse judicial comments. Why wasn’t this done? Why didn’t criminal defence lawyers check with the Royal College of Physicians and Surgeons of Ontario where they would have found that during the years Dr. Smith was proffering “expert” testimony as a “specialist” in pediatric forensic pathology – the College offered no such specialty training? With respect to the plethora of unchallenged, unqualified “expert” testimony proffered by Dr. Gregory Carter (recently on trial for fraud) in the Ontario family law/child custody context, why didn’t opposing family law lawyers simply check with the College of Psychologists of Ontario where they would have seen that Carter was/is registered as a psychological associate and not as a psychologist (not to mention the clearly-posted practice restriction stating Carter wasn’t to make an unsupervised diagnosis)? And in the Ontario personal injury context Dr. Hemendra Shah was found by the health regulators and Divisional Court to be completely unqualified to proffer “expert” opinion evidence in brain injury cases. And yet he proffered unchallenged “expert” testimony in a long list of FSCO Arbitration Unit brain injury cases. To this day the subjects of his unqualified “expert” testimony have no idea their cases were tainted in this way and may have been wrongfuly decided. How is that possible? One gets the sense that lawyers don’t much care if “expert” witnesses are qualified to proffer opinion evidence. Why is that?
Yes
Yes, if that could be relevant. But prior “adverse judicial comment”, whatever you understand by that, is rarely if ever going to be relevant (any more than your opinion, or mine, might be on the competence of any member of the “Leaf Nation). That’s because of the rules that define what is or isn’t relevant evidence.
Some did. Read the Goudge Report. If you have, read it again.
(Let’s assume you claim to know the “truth” about the current Prime Minister. Better yet, let’s assume you know the “truth” behind the story in “Da Vinci Code” – I mean, other than the fact that Dan Brown can’t write. Is anybody outside of the people who think Mel Gibson is sensible going to listen to you?)
Maybe some don’t. Most do. (See my answer to the first question) Thats why the Goudge Report exists. That’s one of the reasons why the wrongfully convicted are compensated. That’s why some judges burn out.
Most of the legal profession that you’ve tarred never goes to court, never hires experts to testify etc. They make lives easier for people who have to put up with regulatory idiocy, in the same way as a good GP makes lives easier for people who have to put up with the common cold. There’s no cure, but your lives are made easier.
The problem of hired gun experts is far less a problem in this country than it is in the U.S.
That’s all I’m going to say on the subject.
DC
In your first post you write “…look for cases in which judges have commented on the expert’s objectivity”. In your second post you write “…adverse judicial comment”, whatever you understand by that, is rarely if ever going to be relevant…”. I assumed from your first post that prior negative/adverse judicial comments regarding blatant partisanship on the part of an “expert” witness would be relevant. And I further assumed that if prior comments about objectivity are relevant – so too would prior judicial comments regarding a lack of qualifications to proffer the opinion evidence being proffered also be relevant. Now you say such judicial commentary is “rarely relevant”.
Next, I’m not “tarring” all lawyers. For lawyers who never deal with expert witnesses this discussion is a non-issue – in the same way your advice to young lawyers wouldn’t be relevant to those young lawyers who will never confront or call expert witnesses. I’m merely saying that too often highly partisan and/or (under)unqualified medicolegal “expert” witnesses with multiple prior judicial rebukes too often aren’t challenged. I’m merely pointing out that one can search the cases of some very prolific medicolegal expert witnesses who regularly proffer “expert” testimony in the Ontario personal injury context – order the cases chronologically from the most recent – and read case after case in which they weren’t confronted/challenged with prior adverse judicial comments/rebukes for having previously proffered highly partisan expert testimony and/or for having previously proffered medicolegal opinions outside or above their area(s) of competence. I’m merely suggesting it is a problem when, for example, a general practitioner can be the subject of judicial rebuke for attempting to mislead the trier of fact in a personal injury case by masquarading as an orthopaedic surgeon. In that case the trier of fact chronicled in his decision that a break was taken in order to phone the CPSO to find out if the defence “expert” witness was in fact an orthopaedic specialist or not. Turned out he was not. So in that case the plaintiff lawyer did an excellent job of checking/challenging the opposing expert witness. The problem I was trying to bring to your attention, and which appears to offend you, is that in several subsequent cases that very same “expert” witness successfully duped a series of subsequent triers of fact into giving his testimony the weight of an orthopaedic surgeon despite the fact he was a general practitioner and despite the fact a prior decision warns him not to mislead courts in this way. In some of those subsequent cases the triers of fact preferred the unchallenged “orthopaedic” opinion of this generalist over those of properly qualified and duly registered orthopaedic surgeons. In other words, in subsequent cases the subjects of this bogus “orthopaedic surgeon were skewered by unchecked, unchallenged, unqualified, “expert” opinion evidence. This repeatedly happened due to a failure to check for and adduce prior adverse judical comments and adduce them whenever appropriate to do so (and also to check/confirm the specialty area(s) of medicolegal experts at their regulatory College). There are assorted variations/permutations of this problem (eg. psychologists not authorized to practice in the area of neuropsychology proffering unchallenged “expert” testimony in brain injury cases despite a CPO Advisory to its members on this very issue). The problem of rogue medicolegal “experts” tainting the Ontario personal injury litigation landscape with unchallenged partisan and/or unqualified “expert” testimony has been discussed in the Toronto Sun and in Law Times. I’m merely saying that rogue medicolegal experts will never be purged from the personal injury system unless/until they are always(rather than occassionally) confronted with prior negative judicial comments that go to partisanship and/or inadequate qualifications.