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Editorial: Under pressure

A recent ruling related to independent medical examinations signals tolerance by courts for biased experts may be running short.

This week, Law Times reports on a personal injury case where an expert witness was rejected. In Daggitt v. Campbell, Justice Helen MacLeod-Beliveau dismissed a preliminary motion by the defendant insurance company for an IME of the plaintiff, Steacy Daggitt, by psychiatrist Dr. Monte Bail.

Part of the approach used by Daggitt’s counsel, Joseph Dart, was using the revised Rules of Civil Procedure that require expert witnesses to sign affidavits swearing impartiality. However, the judge spells out in no uncertain terms how the Rules fall short.

“The recent changes to the Rules to require experts to undertake to the court to be fair, objective, and non-partisan has done little if anything to curb the use of certain favoured biased ‘hired guns’ by the parties. The consequences of an expert signing the undertaking and failing to honour their obligation in their expert report or evidence is simply the rebuke of the court. This does nothing to prevent that same expert from being further retained and repeating the process over again in other trials as long as trial counsel are willing to retain them,” said the ruling.

In Daggitt’s case, the fast food manager had been driving near Kingston, Ont. in 2012 when she was rear-ended. Due to the crash, Daggitt has experienced chronic pain and mental health issues. Daggitt was willing to undergo an IME with a psychologist or neuropsychologist, but not a psychiatrist.

The ruling noted “the plaintiff has never been treated or assessed by a psychiatrist,” nor had anyone recommended she see one.

MacLeod-Beliveau does not mince words.

 “When an expert and that expert’s report is notably partisan, acts as judge and jury, advocates for the insurer rather than being impartial, is not credible, and fails to honour the undertaking to the court to be fair, objective, and non-partisan, it directly affects a party’s right to a fair trial,” said the ruling.

I agree. This ruling hints major reform is not only needed but potentially gravely overdue.

  • prior adverse judicial warnings of bias

    Brian Francis
    Well, finally we see a case in which prior negative judicial comments going to bias are used to reign in a rogue expert. The CSME warned five years ago that partisan medico-legal experts might soon become less tolerated withing the Ontario auto accident injury litigation context. It makes no sense that some of the most preferred auto insurance defense medical experts have repeatedly been rebuked for their biased opinion evidence yet each time they are again trotted in to testify for the defense in a subsequent case - they are given a perpetual tabula rasa on the basis that just because they have been found to have been partisan in three of four or more prior cases is not "proof" they will be biased in the next case. When subsequent triers of fact ignore previous judicial findings/warnings of bias - vulnerable litigants are hurt by the wrongful accusations of malingering which are so tediously predicable in the assessments/testimony of the insurers' "hired gun" medical experts.

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