Focus: Experts’ blanket immunity being challenged

As trial lawyers for some types of litigation are increasingly required to call on expert witnesses to make their cases, the question of an expert’s immunity is being challenged.

The Ontario Court of Appeal has been asked to allow Kingston, Ont. mother, Louise Reynolds - wrongly charged with the second-degree murder of her seven-year-old daughter - to sue pathologist Dr. Charles Smith, whose findings led to the charge.

Peter Wardle, one of Reynolds’s lawyers, told the appeal court last month that damages against the mother “began to flow the moment she was arrested and continued until she was released from custody,” based on Smith’s autopsy findings of the girl’s cause of death, along with his expert testimony in court. (A second autopsy on the girl found she was killed by pit bull bites rather than a knife.)

Lawyers following the bid are split on whether an outcome in Reynolds’s favour could deter expert witnesses from lending their insights in a court of law.
“It’s an interesting issue,” says Greg Monforton of Monforton and Partners in Windsor, and current president of the Ontario Trial Lawyers Association. “There are meritorious arguments on both sides.”

Speaking personally, Monforton says he’s not a supporter of blanket immunity for expert witnesses, which has been a longstanding rule in Canada’s courts.
He points out there’s a significant distinction between exposing expert witnesses to legal action for a basic mistake or erroneous report, as opposed to negligence.

“I don’t agree with the notion of witness immunity and I agree with the fundamental position that’s being taken” by Reynolds’s counsel, says Monforton.

“I don’t quite understand why an expert witness should enjoy immunity that other professionals don’t,” he says.
“Tort law in the most general sense requires professionals act in good faith and compels them to meet standards of reasonable competence and if they fail to do so” he says, “they should be responsible for their negligence or bad faith.”

Smith’s lawyer, Niels Ortved, argued at the appeal court that opening the door to lawsuits would indeed have a chilling effect on experts’ willingness to provide testimony.
Monforton says while Ortved’s position is “superficially appealing,” it’s a premise that doesn’t stand up to scrutiny.

“One has to remember that liability does not automatically arise from making a mistake or an error in judgment. Liability arises from negligence or bad faith and that’s the crucial distinction,” he says.
“That same notion of blanket immunity could also serve to embolden a witness to succumb to external pressures to say what those who’ve retained him [want him] to say without appropriate regard to the truth,” he says.

“If the issue being debated was whether or not an expert witness should be liable any time they make a mistake, no I wouldn’t support that notion,” he continues. “That would be going too far. All that’s really being considered is whether the door should be opened to let the plaintiff into the room to show that this expert witness was negligent or acting in bad faith.”

Monforton says the outcome will be of significant interest since more cases, particularly personal injury matters, are requiring parades of experts to properly litigate.

“In the civil courts, generally there has been an increased reliance on expert witnesses,” he says.
During an injury or motor vehicle trial, more experts are being called on to contribute assessments and reports, requiring other experts to be summoned at court to substantiate or refute those findings, he says.

“So we not only need to call experts to advance our own case, we also need to call on experts to review the case being advanced by our opponents,” he says. “And like anything else it has its positive and negative aspects.”
Trials now can take several weeks compared to the two or three days of court time a decade or so ago, he says.

In turn, there’s more cost to the parties involved, which can render the system too expensive for the average Ontarian to access, he says.
Yet on the other hand, the overriding concern is not to render the process “efficient,” he asserts, “but to arrive at a just result.”

Sandra Forbes, partner at Davies Ward Phillips & Vineberg and an Advocates’ Society director, agrees experts are heavily relied on as some areas of litigation become more protected and complex.
But she disagrees that expert witness immunity should be lifted.

“This whole issue of witness privilege is really not something that Canadian trial lawyers have had to deal with on a day-to-day basis,” says Forbes.
“I think maybe the interest people have in this case stems from what people might generally say has been an attack on privilege per se,” she suggests.

“In order for our adversarial trial process to work, people have to be able to come and testify freely and in a fulsome way. If people are concerned about being sued because of something they say, they would be less forthcoming,” she poses.
Should blanket immunity be lifted, experts might at very least be more selective about the cases they choose to assist.

“If there was a risk of being sued because of the work an expert did with respect to litigation, I think some would think carefully about the cases that they take,” says Forbes. “And I think there would be cases that an expert wouldn’t take, and that certainly doesn’t help people.”

Neil Belmore, a partner at Gowling Lafleur Henderson LLP, has delivered seminars on effective cross-examination of expert witnesses and says lawyers need to be increasingly diligent to ensure the experts they enlist are competent.
Pathologist Smith, in Reynolds’s case, is under review by Ontario’s chief coroner for 44 other cases of alleged homicides and suspicious deaths.

Speaking generally, Belmore reminds counsel to read everything possible about a prospective witness, including past publications, views and opinions, and interview them extensively.
He suggests counsel also retain a consultant “who would not be called as the expert, but who can tell you about the issues at play, where the dangers lie and who best to retain in the matter.”

Belmore, who specializes in patent litigation largely surrounding medical innovations, also acknowledges experts are having a greater role in trials and attributes the trend to interpretation of federal rules.
“The Canada Evidence Act says parties are restricted to five experts and there is a debate as to whether that’s per issue or per case,” he observes. “I take the position that that is per issue.

“So if there is an issue relating to microbiology, then it’s five experts; medicinal chemistry, where you could
have separate issues, you have five experts beyond those for microbiology.”

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