Law Times

Law Times • apriL 10, 2017 Page 13 www.lawtimesnews.com Insurance defence lawyers look closely at experts BY MICHAEL MCKIERNAN For Law Times I nsurance defence lawyers are investigating their own ex- perts for signs of bias to pro- tect their lawsuits from col- lateral damage when a witness' impartiality is questioned. A string of recent court deci- sions has highlighted the issue of alleged "hired guns" while at the same time blowing holes in the cases of the parties that re- tained them. In an attempt to minimize the chance that her clients will lose out, Debbie Orth, a part- ner at Ottawa boutique Bertschi Orth Solicitors and Barristers LLP, says she isn't afraid to do a little homework on her pre- ferred expert witness before for- mally retaining them. After satisfying herself that an expert is qualified to give an opinion on the particular mat- ter at issue in her case, Orth says her next port of call is a reposito- ry of recorded judicial decisions, such as CanLII or Westlaw to run a search of their name. "I want to see if they have ever testified before in court and, if so, whether the judge has accepted their evidence. "If they didn't, then you want to know the reasons why," she says. "Even though less than three per cent of cases are going to trial, I need to know that if this one does, I've got an expert who is going to do the job and not be challenged because of extrane- ous bias." Morgan Martin, a lawyer with the Toronto office of national insurance defence boutique Dolden Wallace Folick LLP, says he has on occasion cancelled a planned retainer after a similar search turned up unimpressive results for the expert. "I try to retain an expert with trial experience. "Being able to read reported decisions is a great equalizer, because a judge will say whether they found them credible," Mar- tin says. "Expert witnesses are not there just to meet my client's ob- jectives. "They're supposed to be ob- jective, fair and non-partisan. Their job is to assist the court; there is no point in retaining someone who can't do that." If defence lawyers fail to do their due diligence on experts, there's a good chance those on the opposing side will do it for them. In the 2016 case of Daggitt v. Campbell, the plaintiff in a mo- tor vehicle accident case fought off a request for an independent medical examination in part by bringing the judge's attention to at least six previous decisions in which critical findings were made about the defendant in- surer's preferred choice of psy- chiatrist to conduct the exam. "The recent changes to the Rules to require experts to un- dertake to the court to be fair, objective, and non-partisan has done little if anything to curb the use of certain favoured bi- ased 'hired guns' by the parties. The consequences of an expert signing the undertaking and failing to honour their obliga- tion in their expert report or evi- dence is simply the rebuke of the court," said the ruling by Justice Helen MacLeod-Beliveau. "This does nothing to pre- vent that same expert from be- ing further retained and repeat- ing the process over again in other trials as long as trial coun- sel are willing to retain them." Even with cases such as Dag- gitt, David Boghosian, manag- ing partner at Toronto defence INSURANCE DEFENCE WHEN YOU HIRE ONE OF US, YOU HIRE ALL OF US TORONTO | WHITBY | OT TAWA | FML AW.CA HONOURED TO BE ONE OF CANADA'S TOP 10 INSURANCE DEFENCE LITIGATION BOUTIQUE FIRMS As Voted By Canadian L awyer Magazine Forward Thinking Strategic Litigators CHOSEN AGAIN Untitled-5 1 2017-01-10 1:56 PM Debbie Orth says she will research expert witnesses before formally retaining them. Key decisions I n February, the Supreme Court of Canada further clarified the rules around whether expert opinion is admissible evi- dence in R. v. Bingley, 2017 SCC 12, in particular around evidence submitted by a drug recognition expert in a crimin- al trial. While the SCC ruled that a police officer who had com- pleted the specialized training and experience would provide admissible evidence, it reaffirmed the modern legal framework in the process. This included these cases: R. v. Mohan, 1994 2 S.C.R. 9 and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 The framework was first set out in 1994 with R. v. Mohan, 1994 2 S.C.R. 9, and clarified in 2015 with White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23, and is in- tended to guard against the danger of a trial devolving into a "trial by expert." It provides for a trial judge to act as a gatekeeper to ensure that expert evidence enhances rather than distorts the fact-finding process. While Mohan established four factors for expert analysis — relevance, necessity, absence of an exclusionary rule and spe- cial expertise — White Burgess added a second discretionary gatekeeping step, where the trial judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. The expert admissibility analysis dates back to 2009 in R. v. Abbey, 2009 ONCA 624, where the Ontario Court of Appeal ruled that it could not be conducted in a vacuum and that a trial judge has to determine the scope and nature of the proposed expert evidence to set both the boundaries of the proposed evi- dence and also the language in which the expert opinion may be proffered in order to minimize any potential harms to the trial process. "The case law demonstrates that overreaching by expert wit- nesses is probably the most common fault leading to reversals on appeal," wrote Justice David Doherty for the court. The major change with regard to expert witnesses in Ontario came about with the 2010 amendments to the Rules of Civil Procedure, where rule 4.1.01 set out an overriding duty of an expert "engaged by or on behalf of a party" to provide opinion evidence "in relation to a proceeding" that is fair, neutral and non-partisan within the expert's area of expertise. Moore v Getahun, 2014 ONSC 237 (2014) Further refinements to rules around expert witnesses have come in cases such as: Moore v. Getahun, 2014 ONSC 237 in 2014, where the trial judge took issue with defence counsel reviewing an expert re- port over an hour-and-a-half conference call. "The expert's primary duty is to the court," wrote Justice Janet Wilson of the Ontario Superior Court. "In light of this change in the role of the expert witness under the new rule, I conclude that counsel's practice of reviewing draft reports should stop." Westerhof v. Gee Estate, 2015 ONCA 206 (2015) In 2015, the Ontario Court of Appeal ruled in Westerhof v. Gee Estate, 2015 ONCA 206 that the Divisional Court had erred in its rulings by not applying any pre-2010 jurisprudence when it comes to opinion evidence given by participant experts. "I see nothing in rule 53.03 ref lecting an intention on the part of the Civil Rules Committee to change the status quo," wrote Justice Janet Simmons for the court. "Had the Civil Rules Committee intended to make a change to the jurisprudential status quo, I am confident it would have made that intention clear." Simmons also agreed with the submissions of the parties and interveners that the Divisional Court's ruling would exacerbate the problems of expense and delays that they were attempting to alleviate. Daggitt v Campbell, 2016 ONSC 2742 (2016) In 2016, the use of biased expert witnesses was rebuked by the Ontario Superior Court in Daggitt v. Campbell, 2016 ONSC 2742, where Justice Helen MacLeod-Beliveau noted that the 2010 changes to the Rules of Civil Procedure had done little to curb the use of certain biased "hired guns" because the consequence of failing to honour their obligation to provide non-partisan expert advice was simply the rebuke of the court. "Considering the highly intrusive nature of these independ- ent medical assessments, and the serious issue of ensuring a fair trial, the plaintiff 's argument to deny the right to have an expert that has been found to be biased conduct the assessment in the first place is worthy of consideration in appropriate circum- stances considering the potential for a miscarriage of justice that can be caused by such an expert biased in favour of one party, particularly in front of a jury," wrote MacLeod-Beliveau, as she ruled against the defendants. By Dale Smith, for Law Times See Judges, page 14

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