Experts disqualified for history of bias?

Expert witnesses who have attracted the ire of the courts for their biased testimony could be disqualified from trial at the preliminary stage — or at least that would be the case if one strongly worded Superior Court decision proves influential.

In Daggitt v. Campbell, a personal-injury case, Justice Helen MacLeod-Beliveau last month dismissed a preliminary motion by the defendant insurance company for an independent psychiatric examination of the plaintiff, Steacy Daggitt, who was rear-ended in an auto collision.

The motion was dismissed due to a lack of evidence. At no point in the plaintiff’s three years of medical consultations had any of her health practitioners referred her to a psychiatrist — although she has been to see a psychologist and neuropsychologist — so the court found such an examination unnecessary.

“The plaintiff has never been treated or assessed by a psychiatrist,” writes MacLeod-Beliveau. “No one who has seen the plaintiff has recommended that she be treated by a psychiatrist. To make the order sought would favour the defense and prejudice the plaintiff ...”

Beyond merely dismissing the motion, however, MacLeod-Beliveau provided additional comment obiter dicta in which she took defence counsel to task for proposing an examination that would delay the trial by two years and require her to hire her own expert witness to counter the testimony of a so-called “hired gun” defence expert — one who had been repeatedly criticized by the courts for bias.

“[T]he plaintiff submits that Dr. Monte Bail, the psychiatrist chosen by the defendants, has demonstrated such clear and definitive defense bias in many previous cases that the court should decline to make any order allowing any independent medical examination by Dr. Monte Bail in particular,” writes MacLeod-Beliveau.

The plaintiff’s argument was one that clearly persuaded the judge, who proceeded to cite six cases in which Dr. Bail is the subject of negative judicial comment.

In one particularly stinging rebuke, in Bruff-Murphy v. Gunawardena, Superior Court Justice Paul Kane criticizes Bail for lacking credibility and expresses his regret for having allowed the witness to testify — given the ultimately unfavourable outcome for the plaintiff. Kane states, furthermore, that he “will not qualify witnesses as experts in the future whose reports present an approach similar to that of Dr. Bail in this case.”

In Daggitt, MacLeod-Beliveau offers a continuation of the findings in Bruff-Murphy while putting forward her own reasons for theoretically rejecting such a witness:

“It could be argued that the court, in the exercise of its discretion, should … consider and determine in appropriate cases whether or not the proposed named health practitioner is biased in favour of a party on the balance of probabilities and therefore fails to qualify as an expert.

“While it would be uncommon to find an expert biased … such an expert so found should not be allowed to have any role in the court process.”

Rhona DesRoches, chairwoman of the Association of Victims for Accident Insurance Reform, calls the decision a “game-changer” for personal-injury claimants, an indication that the courts have “had enough of the manipulations of insurers to delay and deny claimants through the use of biased medical evidence.”

“Ontario’s insurers,” she says, “have used the partisan medical experts as a tool in their toolbox, and it is the most effective method they have to deny claims. If Daggitt is a road map, those days of denial based on bogus medical opinions is coming to an end.”

Joseph Dart, the lawyer at Bergeron Clifford LLP who represented Daggitt, says he relied heavily on the Supreme Court of Canada’s April 2015 decision in White Burgess Langille Inman v. Abbott and Haliburton, wherein the top court grants judges the discretion to disqualify biased reports and expunge the testimony of biased experts.

Dart took the SCC’s guidance in White Burgess and used it, along with recently revised Rules of Civil Procedure that require expert witnesses to sign affidavits swearing impartiality, to convince MacLeod-Beliveau that she had all the discretionary power required to reject an expert witness — prior to trial and prior to seeing any of the testimony itself. In her dismissal of the motion, MacLeod-Beliveau questions the effectiveness of the new Rules of Civil Procedure, which require experts to commit in writing to be fair, objective, and non-partisan.

MacLeod-Beliveau further notes that, while the testimony of biased experts may be expunged at trial, there’s no consequence — aside from the embarrassment resulting from the court’s indignation — that would prevent such hired guns from being welcomed back to court over and over again.

“There’s practically no consequence,” says Dart, “and hopefully what will happen now is, if people like this don’t get appointed to do the examination in the first place, you’ll see them disappear — and that’s a consequence for sure.”

Todd McCarthy, senior partner at Flaherty McCarthy LLP, who is representing the defendant Unifund Assurance in Daggitt, says there’s little chance that this ruling will be followed by other judges. Defence still has time to propose an expert other than Dr. Bail, so McCarthy says there would be no practical purpose in seeking leave to appeal. Still, he strongly suggests that MacLeod-Beliveau’s comments are wrong on principle.

“If this case weren’t so close to trial, and this case wasn’t one where we were going to get a defence psychological opinion anyway, we would probably seek leave to appeal, because with due respect to the court, it may well be, from an appellate perspective, an exercise of discretion on wrong principles to consider negative judicial comment about a chosen expert, because that’s not admissible at trial.”

McCarthy insists, moreover, that it’s not the place of a motions judge to determine — without ever having read a report or listening to testimony — whether an expert witness is biased.

“It seems to me the ultimate gatekeeper is not the motions judge but the trial judge,” says McCarthy. “So the troubling part of this case is that it takes away the choice and makes the decision on a motion stage that the trial judge should make.

“I think that could be seen as an error in principle, so I don’t expect this decision to be widely followed, and if it is, ultimately, an appellate court is going to weigh in at the appropriate time.”

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