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Social Justice: Expert witnesses and access to justice

The recently reported decision of Bruff-Murphy v. Gunawardena, 2016 raises important issues concerning the use of civil jury trials and the role of partisan expert witnesses.

Social Justice: Expert witnesses and access to justiceThe decision arises out of a typical personal injury action. The defendant rear-ended the plaintiff’s vehicle. The plaintiff complained of various injuries that  caused “continuous severe pain.”

The action was held before a judge and jury. 

Of course, the defence served the jury notice. Insurers and defence counsel know that juries raise uncertainty and the prospect of a jury trial drives down the quantum of many settlements. It is all part of the game-playing that takes place in personal injury litigation.

Following the judge’s charge to the jury, defence counsel brought a threshold motion. Under Ontario law, non-pecuniary damages are not recoverable in motor vehicle personal injury litigation unless the injured person has died or has sustained serious disfigurement or permanent serious impairment of an important physical, mental, or psychological function.

Ontario Superior Court Justice Paul Kane dismissed the motion, concluding the plaintiff’s impairments satisfied the threshold. That finding allowed the plaintiff to recover general damages for her substantial injuries. Yet the jury came back with a nominal award of $23,500 for general damages and dismissed all other claims.

How is it that a plaintiff can be found to have suffered permanent serious impairment of an important function and yet only receive a general damages award of $23,500? This plaintiff is married, in her thirties, and has three children. She has a long life expectancy.

The only reasonable explanation I can come up with after reading the judge’s reasons on the threshold motion revolves around the expert evidence introduced by the defence. 

One of the defence’s two expert witnesses was an orthopedic surgeon who testified there was no medical finding to indicate physical impairment, there must be a medical reason to explain pain, pain is a perception, and  it is not evidence-based medicine.

The trial judge rejected this evidence as not being of relevance. More importantly, he criticized the defence choice of a jury trial, stating, “Medical and legal thinking as reflected in jurisprudence, has moved beyond a belief that ‘unless you can see or feel an injury, there is no injury’. Such outdated hypothesis however may be one of the reasons for the current popularity by defendants as in this case to select trial by jury in the hope the jury might accept this outdated argument.”

The second defence expert witness was more problematic. This witness, a psychiatrist, testified that the plaintiff was faking and shouldn’t be believed. To put this evidence into perspective, this expert told the court he had conducted about 5,500 independent medical exams since 1989 at approximately $5,500 per assessment.
All but “a few dozen” were conducted for defendants.

He currently conducts an average of seven to 14 assessments for insurers or defendants per month. These assessments form a large part of the psychiatrist’s practice.These facts alone should have served as a red flag. In three previously reported cases, findings were made that this witness had “become an advocate for the party calling him,” had taken a “partisan approach” or “presented as a notably partisan witness.” 

Yet the court felt compelled to accept the witness as an expert and did not allow the witness to be cross-examined on these prior judicial findings. The judge rejected this expert’s evidence as being not credible for purposes of the threshold motion. In doing so, he stated, the witness “failed to honour his obligation and written undertaking to be fair, objective and non-partisan” and “[T]he vast majority of his report and testimony in chief is not of a psychiatric nature but was presented under the guise of expert medical testimony.”

It seems the defence witnesses had their desired effect on the jury. How else to explain the nominal jury award in a case where the trial judge concluded,
“The evidence of the plaintiff as to her injuries, level of symptoms and limitations are corroborated by her health care providers including some of their testing for veracity. Such evidence is further corroborated by her husband and her friends. In such ways, the plaintiff’s credibility is strongly supported.”

Yes, this is but a single case of injustice. But we are left to speculate on how many deserving plaintiffs have entered into low settlements or suffered low awards due to the evidence of experts of the ilk trotted out by the defence in this case.  Where do we go from here?

I have two suggestions for consideration. First, let’s reconsider the use of civil juries for personal injury litigation. Quebec and the Federal Court of Canada have abolished civil jury trials. England has long since barred the use of juries for personal injury cases. Some states and territories in Australia no longer allow civil jury trials, while others allow civil jury trials but not for motor vehicle litigation. Second, we must do a better job of eliminating partisan experts from participating at any stage of personal injury cases. Efforts to do away with hired gun experts have failed.

The trial judge in the case discussed above declared he would not qualify witnesses as experts in the future if they took a similar approach to that taken by the defence psychiatrist. That’s of small comfort to the plaintiff, Ms. Bruff-McArthur.

Alan Shanoff was counsel to Sun Media Corp. for 16 years. He is a freelance writer for Sun Media
and teaches media law at Humber College.  His e-mail address is ashanoff@gmail.com.

Comments   

+1 # LawyerAndrea Girones 2016-02-14 19:07
This case illustrates the need for a stronger gatekeeper function by the Judge. Justice Kane found the defence expert's opinion irrelevant, because of the "lack" of useful evidence on causation. How did the jury get to hear irrelevant evidence? Justice Kane found that the defence psychiatrist was an advocate who unfairly failed to put perceived "inconsistencies" to the plaintiff. But the jury got to hear all the supposed inconsistencies...
The plaintiff's lawyer put up a major attempt to bar the evidence, but it went in anyhow. Maybe we need to do more voir dire type exercises? It will increase the cost and the time of a trial, but what options do plaintiff lawyers have at this point? I'm a big fan of jury trials, but if I cant keep this garbage evidence away from a jury then I will take my chances with a Judge alone trial.
I hope Justice Kane's comments help other Judges see the danger of letting this evidence in.
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+1 # Mr.joshua henderson 2016-02-09 17:54
Plaintiff experts are just as biased and recycled as defence experts. Why not prevent all hired guns and just get the treating doctors to testify on behalf of the plaintiffs.
Also, the obvious reason why juries are punishing whiplash claims is because we all know that 'nothing is tougher than a diamond'. Jurors have little respect for whiplash plaintiffs or their counsel.
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+1 # Senior Partner Flaherty McCarthyLLPTodd McCarthy 2016-02-09 09:05
I invite Mr Shanoff to consider that plaintiffs often file jury notices. He should also read Igbokwe v Price 2005 ONCA affirming 2004 ONSC per Jennings J sitting with a jury. There are alternative explanations for low verdicts. In Igbokwe, a chronic pain case, there were no defence experts called and seven experts called for the plaintiff. The jury clearly rejected the plaintiff's case on the basis that the plaintiff did not establish causation and yet the trial judge dismissed the threshold motion. Damages claimed : $1.3 million dollars. Damages awarded: $5,000.00.
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0 # LawyerAndrea Girones 2016-02-14 19:10
Todd this is different in that Justice Kane finds the defence experts to be "irrelevant" and "advocates". And the jury still got to hear them. That is what troubles me.
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+2 # @ J. Vanderkopbrian francis 2016-02-08 17:14
RE: Yes. It is stunning that it has taken so long for OTLA to become less tolerant of the insurers' (and their defence lawyers') preferred vendors of expert medico-legal opinion evidence - especially since the CSME was wondering in 2011 how long before a "public scandal" might erupt. This issue has been raised repeatedly for years - not just in law journals but also in the mainstream press:

Flushing out bogus experts not rocket science - Toronto Sun

www.torontosun.com/comment/columnists/...shanoff/.../14947196.html


Aug 8, 2010 - We seem to be living in an era of proliferating rogue expert ... ... Shame on all the lawyers and judges who have been fooled by ...
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+2 # The article that captures it allJokelee Vanderkop 2016-02-08 16:31
Shanoff's article says it all. Hopefully, the general public, (which is not even aware that there is a problem until they're in a serious accident themselves), motor vehicle accident victims and all the lawyers, on both sides of the equation, as well as FSCO and the IBC should not only read but re-read this article and think about it. What has happened to ethics? If we can get rid of self-interest and be truly serious about helping legitimate claimants, then in the name of what should be a just society, let's get rid of the corruption and rot in the auto insurance system, with its too often self-serving assessors and expert witnesses and lawyers,and all in the name of money, whether it is to increase profits for insurers or earn more working as an insurance medical assessor or expert witness. And all of it is to the detriment of innocent people whose lives and careers have been lost because of an accident, and then have their lives further ruined by the insurance industry.
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+2 # Get it right the next time?Rhona DesRoches 2016-02-08 15:42
This is why FAIR Association is asking for a public inquiry into the medical evidence used in our courts and tribunals – distorted and downright dishonest expert medical reports and testimony has our courts backlogged and too many claimants going without.

Bruff-Murphy shows how far down the bar is for expert witness integrity. How can this decision reflect any sort of justice when the plaintiff offers the court the examples of prior adverse comments in order to establish bias only to be ignored? It's all dandy to say that in the future this judge wouldn't allow this sort of expert testimony but the damage is done isn't it? And who will listen to his 'adverse' comment anyway? The next judge will do better applying the rules?

That this case culminated in such a low award is the fruit of a court that was unwilling to see a problem and now that victim has been re-victimized by our justice system and is left paying the price.
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-4 # Defence CounselDan Reisler 2016-02-08 14:19
Ok, I'll take the bait. If "the only reasonable explanation (Mr. Shanoff) can come up with" for the disparity between the judge's findings and the jury's is that the defence experts "had the desired effect on the jury"then he didn't try very hard. This was a 5 week trial of which the defence evidence, coming at the very end, took up about 10%. It might occur to someone who is more familiar with personal injury litigation that the jury rejected all of the plaintiff's evidence. Experience tells us that these cases are usually won or lost before the defence doctors take the stand. But worse than that, what arrogance would lead anyone to suggest that the discernment, wisdom and judgment of 6 members of the community, about whom we know very little, is less valid than that of a single member of the community who happens to wear a robe, and about whom we also know little, except that he or she has no more training in discerning the truth than the other 6 judges in the case.
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+4 # prior adverse judicial warningsbrian francis 2016-02-08 11:48
RE:we must do a better job of eliminating partisan experts from participating at any stage of personal injury cases. "

Unless/until OTLA presses the Ontario Civil Justice Rules Committee on the issue of adducing prior adverse/negative judicial comments which go to an experts' lack or qualifications or to an expert's repeated flagrantly biased testimony - the rogue expert problem will continue to plague Ontario's civil justice system and undermine its integrity. How can judges properly exercise their gate-keeping of experts duties if they choose to remain deaf to prior warnings regarding a lack of competency and/or persistent bias issued by their colleagues in previous decisions? Don't the judges trust other judges? It is bizarre.
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