Judges as Gatekeepers for Necessary Expert Evidence

Expert evidence is often perceived as a necessary evil by many judges. The “evil” of these experts is that they tend to enhance the adversarial nature of litigation, unduly complicate proceedings, and often add unnecessary costs for the parties.

What is the role of the court in excluding or managing this evidence?

Concerns over the excessive use of experts has been identified in several jurisdictions. A 2002 study by Carol Krafka in the US found that judges are becoming more recalcitrant towards accepting expert evidence post-Daubert. The 2009 Jackson Report in the UK accepted the manner in which expert evidence is tendered, but found that it was often done so unnecessarily.

The test for expert evidence in Canada, derived from R. v. Mohan, is as follows:

1. the evidence must be relevant;
2.  it must be necessary to assist the trier of fact;
3. it must not be subject to an exclusionary rule; and
4. the expert must be properly qualified.

The Ontario Court of Appeal recently released a decision in Meady v. Greyhound Canada Transportation Corp which elaborated on the second part of the test, whether the expert is necessary to assist the trier of fact.

The trial judge, Justice Platana, excluded the testimony of two experts brought by the plaintiffs, who were passengers on a Greyhound bus in northern Ontario. An individual with mental health problems had boarded the bus, lunged at the driver, causing the bus to swerve and topple, resulting in one death and 32 injured passengers.

The plaintiffs had sought to sue the mentally ill passenger, but also Greyhound, the bus driver, OPP officers who had encountered the mentally ill passenger prior to boarding, and the Crown who employed the officers. Justice Platana dismissed the action against all the defendants except for this mentally ill passenger, who did not defend the action and was noted in default.

Central to this finding was that he excluded the testimony of two experts, one in police training and the other in bus safety, which the plaintiffs claim would have established negligent behaviour on behalf of the bus drivers and the officers in preventing the incident.

Justice Dickson stated in R. v. Abbey,

An expert’s opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary.
[emphasis added]

This “help” is further defined as information which is “likely to be outside the experience and knowledge of a judge or jury.” Chief Justice Strathy reviewed the trial decision of Justice Platana in Meady and dismissed the appeal.

Chief Justice Strathy referred to a Court of Appeal for British Columbia decision in Zink v. Adrian, which itself relied on the older case of Anderson v. Chasney et al., 57 Man. R. 343, [1949] 2 W.W.R. 337. In Anderson, a surgeon performed a tonsillectomy and adenoidectomy, and left a sponge in the patient, who subsequently suffocated.

Expert evidence in this case can be used to review general or approved practices, especially where they involve particular expertise or technical skill. But where carelessness of whether proper precautions should be taken can be determined by an ordinary person, an expert is not of assistance.

Chief Justice Strathy referred to passages in the Supreme Court’s decision of Masterpiece Inc. v. Alavida Lifestyles Inc. and the Court of Appeal’s decision in Johnson v. Milton (Town), which emphasized the role of the judge as gatekeeper of unnecessary information.

He ruled that technical knowledge or expertise was unnecessary in determining whether the officers should have restrained the mentally ill passenger or prevented him from boarding the bus because police trailing materials were used in trial for cross-examination of the officers.

Judges regularly deal with police powers and did not need an expert to explain these police manuals. The behaviour exhibited by the passenger would not have given rise for alarm or reason for detention under the Mental Health Act.

Similarly, how the driver operated the bus was something routinely examined by courts in motor vehicle negligence cases. The Greyhound manuals were also on hand and used for cross-examination.

The 2008 Gouge Report looked at the role that Dr. Michael Smith played in our legal system. The report stated,

Such an expert can do much damage without effective oversight by those who must provide it and constant vigilance on the part of the participants in the criminal justice system who can protect the system against flawed expert evidence. None of that happened here. The challenge is to ensure that this history does not repeat itself.

The report emphasizes the role that judges play in protecting the legal system from flawed or unnecessary evidence. Although much of the discussion of expert witnesses has focused on criminal law, Chief Justice Strathy noted that this applies equally to civil litigation.

Rule 4.1.01 the Rules of Civil Procedure in Ontario emphasizes that the duty of an expert belongs to the court, not to the party who retained the expert. Although this had already been established at common law prior to the introduction of this rule in 2010, many experts such as Dr. Smith believed their role was to make the case for the party who was paying them.

Other alternatives to our current method of tendering expert evidence does exist. A 2013 paper by Campbell Valuation Partners Limited looked at the role of expert evidence in our courts and canvassed some of the alternatives.

The “hot-tubbing” method has been used in some common law jurisdictions such as Australia for several decades:

1. the experts prepare their own reports
2. the experts review the reports of the other experts and prepare a joint statement of agreements and disagreements
3. each expert testifies at trial on these areas of dispute
4. each expert analyzes the conclusions of other experts
5. experts are then questioned together with cross-examination

Another alternative is jointly-appointed experts, an initiative which has been undertaken under the new Rule 52.1 of the Federal Court Rules.

The Campbell Partners report proposes a third alternative, a hybrid between these other two, and expert conference:

The objective of an expert conference is to foster discussion between the experts, and to narrow the focus of the trial to only the genuinely disputed issues, with a view to ultimately reducing the time and cost of the litigation.
…
Experts meet in advance of trial to discuss their findings, exchange information, and identify areas of agreement and disagreement. If so instructed, experts will draft a joint statement, which is served to the court, to assist in better understanding the basis for the differences of opinion.

In a time of judicial economy, when the court system is already overburdened, the first thing which will probably go are experts who are not deemed necessary, even if properly qualified. The preparation and expense involved with retaining these experts is a savings passed on to clients, but if the necessity of their role is not properly established at the outset many lawyers may bear these costs unnecessarily.