EXPERT EVIDENCE: THE CHANGING LANDSCAPE

Transcription

1 EXPERT EVIDENCE: THE CHANGING LANDSCAPE Richard M. Bogoroch and Pinta J. Maguire BOGOROCH & ASSOCIATES LLP THE ADVOCATES SOCIETY TRICKS OF THE TRADE 2015 JANUARY 30, 2015

2 Page 2 INTRODUCTION In the last twenty-five years, the cost and length of trials has risen dramatically. Where it once took four or five days to try a typical car accident case involving soft tissue injuries, that same trial is now booked for two to three weeks of court time. There are many reasons for the increased length of trials, but perhaps the most salient reason is in the proliferation of expert evidence called by both plaintiffs and defendants. Experts have become the mainstay of personal injury litigation. As a result, the landscape of finding, retaining and calling expert evidence at trial is one with which all litigators must be familiar. One misstep and an entire case can be lost because the expert evidence required to prove the plaintiff s case is deemed inadmissible. Dealing with expert evidence is among the most difficult challenges that the trial lawyer faces. This paper will attempt to provide an overview on the shifting landscape of finding, retaining and calling expert evidence at trial. I. FINDING THE EXPERT Perhaps one of the most difficult duties of a trial lawyer is to locate the appropriate expert willing to review a case or assess a client. Having a wide network of ready and willing experts is a start, but sometimes, particularly in the context of medical malpractice claims, the type of expert required is not one within your usual roster. There are now services that can connect plaintiff s counsel with the appropriate specialty expert, for a fee, although the quality and caliber of the expert and their report is an unknown variable. Posting inquiries on the Ontario Trial Lawyers Association Listserve, and making inquiries

3 Page 3 of colleagues, can also be fruitful sources of both leads for experts, and obtaining viewpoints on past experience with potential experts. Sometimes, however, you have to start from scratch; searching university faculty websites, online legal research services for caselaw where similar experts have testified, and calling professional Colleges to request recommendations. From there, you have to cold call the expert, usually followed up by a request letter. The contents of the letter would form part of the expert s file, producible at trial if called as an expert witness. Care must be taken when drafting request letters as the facts described must be objective, lest you open your expert up to cross-examination on whether his or her view was tainted from the outset of the retainer based on the description of the facts. Of course, the names of the parties should be disclosed to ensure that there are no conflicts. Where the expert is particularly specialized or well known in a particular city or locale, the pool of potential experts is smaller and you may need to venture out of province. Ensure that your expert is properly qualified to offer his or her opinion on the applicable standard of care or causation issues in your particular jurisdiction, either through similarities in governing standards or through his or her body of work.

4 Page 4 II. RETAINING THE EXPERT Once you have located an expert willing to review the material, provide an opinion and testify at any potential trial, you should send the expert a retainer letter to confirm the scope of the retainer and provide the material for review. The retainer letter should clearly set out the issues on which the expert is being asked to opine, provide all material relevant to the issues in the case (whether helpful or harmful), and clearly set out the role and responsibility of the expert as being a neutral and objective advisor to the court. While an experienced expert witness may be fully informed of their duties of objectivity and independence, experts who have not been involved in litigation, or who usually work in another jurisdiction, may not fully appreciate the nature of their duties, or the consequences of a breach thereof. In that regard, whether dealing with an inexperienced or seasoned expert, you should ensure that the expert understands their role and responsibility at the outset of the retainer, and diligently ensure that those duties are complied with throughout the retainer. The ramifications for a perceived breach of the expert s duties of objectivity and independence can be severe. In Carmen Alfano Family Trust (Trustee of) v. Piersanti 1, Justice Ellen MacDonald disqualified the defendants accountant expert after conducting a three day voir dire and reviewing the expert s file, which contained numerous s between the expert and the defendants: 1 Carmen Alfano Family Trust (Trustee of) v. Piersanti,[ 2009] O.J. No (QL) [ Piersanti Trial ], aff d 2012 ONCA 297

5 Page 5 An expert should exercise extreme caution on analyzing the facts that support his or her client s position. In this voir dire, it was very apparent that [the expert] was committed to advancing the theory of the case of his client, thereby assuming the role of an advocate. The content of many of the s exchanged between [the expert] and [the defendant] reveal that [the expert s] role as an independent expert was very much secondary to the role of someone who is trying to their best for their client to counter the other side. [2] After my detailed consideration of the transcripts from the voir dire, I have concluded that these comments correctly describe what took place. [The expert] became a spokesperson for [the defendants] and, in doing so, did not complete independent verification of key issues in accordance with the standards that are expected of an expert. The key issues, crucial to the determination of this case, if determined on the basis of Mr. Anson-Cartwright s reports would be tainted by the lack of impartiality that is clearly apparent from the content of the s. 2 Accordingly, counsel should explain the possible consequences of a breach of the duty of objectivity and impartiality at the outset of the retainer. In that regard, consideration should be given to discussing the indications for a lack of objectivity such as: (1) selective use of material to support a tenuous opinion; (2) expressing opinions beyond the scope of the expert s expertise; (3) using inflammatory or argumentative language in the report or in written communications; or (4) failing to engage in a critical analysis of theories advanced by both parties. The Advocates Society: Principles Governing Communications with Testifying Experts 3 suggests having the expert acknowledge that he or she understands the duties of an expert and undertakes to abide by those duties at or near the outset of the retainer, rather than 2 Piersanti Trial, para Advocates Society: Principles Governing Communications with Testifying Experts, Principles_Governing_Communications_with_Testifying_Experts_3_sep18.pdf [ Advocates Society Principles ]

6 Page 6 when the report is finalized. 4 Consideration may be given to having the expert execute the certificate of independence and objectivity contained in the applicable procedural rules or Practice Directions at the outset of the retainer, and again when the report is finalized, to ensure that the expert has given due consideration to his or her role as an objective and neutral witness giving evidence for the benefit of the Court. Depending of the type of issue the expert is being asked to opine on, any special instructions about reviewing the material should be set out in the retainer letter providing said material. For example, in a medical malpractice case involving a radiologist, the expert radiologist should be instructed to first review the requisition form and images only without the benefit of the written report or additional medical records. The written report and additional records should be consulted after the expert has formed an independent and impartial opinion on the radiographs at issue, without the benefit of knowing the outcome. Conversely, providing material in piecemeal form, or in a form that predisposes the review to hindsight evaluation, may also form the basis of criticism by the Court. In Livent v. Deloitte 5, Justice Gans was critical of the way in which material was organized for the expert accountant: I was, however, a tad uneasy about the fact that he was not able to reconstruct the audit, as it were, on a year-by-year basis in order to view the evidence in the same way it would have been viewed by the Deloitte engagement or review partners who would have been overseeing the field work by the managers and more junior staffers. In other words, a review by subject matter might have had 4 Ibid. at pg. 5 5 Livent v. Deloitte, [2014] O.J. No (S.C.J.)

7 Page 7 the unintended consequence of skewing the analysis and might have provided [the expert] with a somewhat jaundiced view of the issues which he was later heard to criticize. I am also persuaded that [the expert] was operating from the vantage point of hindsight, if not engaged in the conduct of a forensic investigation as opposed to commenting on the adequacy of an audit, per se. 6 The engagement letter, and the material provided therewith, is a critical communication with your expert and will, most certainly, be the subject of scrutiny by opposing counsel and the trier of fact when considering the reliability of your expert s opinion. Care must be taken to ensure that the expert starts his or her review with the instructions and material required to fulfill his or her duties to provide impartial and objective expert opinion for the benefit of the Court or tribunal. III. COMMUNICATIONS WITH EXPERTS IN ADVANCE OF TRIAL Perhaps the most talked about issue regarding expert evidence in 2014 was the scope and appropriateness of communications with experts in advance of trial. Litigators across the country are anxiously awaiting the Ontario Court of Appeal s determination of the issues raised in Justice Janet Wilson s trial decision in the medical malpractice claim Moore v. Getahun. 7 One of the issues Justice Wilson dealt with was the appropriateness of communications with an expert in advance of trial. Justice Wilson was of the view that 6 Ibid. at paras Moore v. Getahun, 2014 ONSC 237 [Moore]

8 Page 8 counsel s prior practice of reviewing draft reports should stop. 8 Of concern was a notation in the defence expert s file of a lengthy telephone call with defence counsel after the delivery of a report with which the expert was content. After the telephone call, changes were made to the expert s draft report that, in Justice Wilson s view, were shaped by defence counsel s suggestions. In Justice Wilson s view, discussions or meetings between counsel and an expert to review and shape a draft expert report were no longer acceptable. If there is a need for clarification or amplification, any input whatsoever from counsel should be in writing and disclosed to the other side. 9 Predictably, Justice Wilson s decision was a popular item for discussion by the bench and bar and served as the basis for a panel discussion at last year s Advocates Society conference. If accepted by the Court of Appeal, the proposed restraints on pre-trial communications with experts would represent a striking departure from the practice followed by most advocates. As advocates, we have a duty to present expert evidence that is: (1) reliable; (2) relevant to the issues in the proceeding; and (3) clear, comprehensible and persuasive. A fundamental aspect of fulfilling this duty in an adversarial system is the ability to communicate and provide commentary on draft expert reports or affidavits in advance of trial Ibid. at para Ibid. at paras Advocates Society Principles, supra at pg. 3

9 Page 9 Appropriate dialogue between counsel and experts is one that does not persuade, or may be seen to have persuaded, an expert to express an opinion that the expert does not genuinely hold or believe. 11 That said, the ability to communicate and consult with experts on draft reports is essential to ensure that the expert s evidence will ultimately be useful to the court or tribunal, and adduced in an effective and efficient manner. A disorganized report, replete with spelling and factual errors would be of no use to the trier of fact, nor benefit to your client. In many cases, counsel must inform themselves of complex scientific, economic or medical subjects and relate it to the Court or tribunal in a persuasive manner. The expert must also learn about the legal process and burdens of proof, as well as understand what issues should be addressed. Some experts may have more experience in preparing reports and testifying than others, and some may be more capable in preparing well organized and cogent reports or affidavits. In many cases, the expert will not have previously given expert evidence in litigation, with little to no experience with the legal process. For these reasons, expert witnesses will often require consultation with and instructions from the advocate before finalizing their expert report. Although some judges may attach little significance to the failure to retain previous drafts 12, it is possible that the failure to keep previous drafts and/or communication with counsel may become an issue in a voir dire on the admissibility of expert evidence. For that reason, it is prudent to advise the expert to retain previous drafts, any notes regarding 11 See Mendlowitz v. Chiang (Berenblut), 2011 ONSC 2341 at para. 23 [Mendlowitz] 12 See for example Ibid. at paras

10 Page 10 analysis of the findings, and communications with counsel or the client, or risk adverse findings of credibility, drawing adverse inferences or exclusion of expert evidence in toto. 13 IV. ADMISSIBILITY OF EXPERT EVIDENCE The admission of expert evidence is an exception to the general principle that witnesses testify to what they saw, heard, felt, and did, and the trier of fact determines issues of credibility and reliability to make findings of fact. Expert witnesses, on the other hand, take their own education, work, and experience, apply it to the evidence, and present an opinion as to factual or legal inferences that should be drawn. The trier of fact then accepts or rejects that expert s opinion as to the appropriate inference to be drawn. As a result, expert evidence has the ability to usurp the fact finding role of the Court. That said, expert evidence has proliferated in civil litigation and has become the lifeblood of the civil litigation process. Put simply, many cases, particularly medical malpractice cases, cannot be tried without the benefit of expert support. The judiciary s role, one which they are increasingly following with strict compliance, is to act as a gatekeeper, properly controlling the admissibility of expert evidence, the manner in which it is presented to the trier of fact, and the use the trier of fact makes of that evidence. 14 The seminal case on the admissibility of expert evidence is R. v. Mohan, wherein Justice Sopinka defined the test for admissibility through four criteria: 13 Advacates Society Principles, supra at pg R. v. Abbey, 2009 ONCA 624 at paras [ Abbey ]

11 Page 11 (1) Relevance cost benefit analysis or whether the value of the evidence is worth the potential harm to the trial process; (2) Necessity of assisting the trier of fact is the information likely to be out of the knowledge held by a judge or jury; (3) The absence of any exclusionary rule; and (4) A properly qualified expert has the expert acquired special or particular knowledge through study or experience in respect of the matters on which they are testifying 15. In R. v. Abbey, the Ontario Court of Appeal attempted to clarify the Mohan principles, refining it to two phases. At the first phase, the advocate must establish four preconditions to admissibility: (1) The proposed opinion must relate to a subject matter that is properly the subject of expert opinion evidence; (2) The witness must be qualified to give the opinion; (3) The proposed opinion must not run afoul of any exclusionary rule apart from the expert opinion rule; and (4) The proposed opinion must be logically relevant to a material issue R. v. Mohan, [1994] S.C.J. No. 36 at paras [ Mohan ] 16 Abbey, supra at para. 80.

12 Page 12 In Abbey, Justice Doherty distinguishes logical relevance from legal relevance as follows: Relevance can have two very different meaning in the evidentiary context. Relevance can refer to logical relevance, a requirement that the evidence have a tendency as a matter of human experience and logic to make the existence or non-existence of a fact in issue more or less likely than it would be without that evidence: [R. v.] J-L.J. [[2000] 2 S.C.R. 600] at para. 47. Given this meaning, relevance sets a low threshold for admissibility and reflects the inclusionary bias of our evidentiary rule: see R. v. Clark (1999), 129 C.C.C. (3d) 1 (Ont. C.A.), at p. 12. Relevance can also refer to a requirement that evidence be not only logically relevant to a fact in issue, but also sufficiently probative to justify its admission despite the prejudice that may flow from its admission. This meaning of relevance is described as legal relevance and involves a limited weighing of the costs and benefits associated with admitting evidence that is undoubtedly logically relevant 17 At the second phase of the admissibility analysis, the Court must focus on its gatekeeper function, where the probative value can be assessed as part of a holistic consideration of the costs and benefits of admitting the evidence. 18 The benefit side of the cost-benefit evaluation requires a consideration of the probative potential of the evidence and the significance of the issue to which the evidence is directed. When one looks to potential probative value, one must consider the reliability of the evidence. Reliability concerns reach not only the subject matter of the evidence, but also the methodology used by the proposed expert in arriving at his or her opinion, the expert s expertise and the extent to which the expert is shown to be impartial and objective The cost side of the ledger addresses the various risks inherent in the admissibility of expert opinion evidence, described succinctly by Binnie J. in J.- L.J. at para. 47 as consumption of time, prejudice and confusion. Clearly the most important risk is the danger that a jury will be unable to make an effective and critical assessment of the evidence. The complexity of the material 17 Abbey, supra at para Ibid. at para. 84

13 Page 13 underlying the opinion, the expert s impressive credentials, the impenetrable jargon in which the opinion is wrapped and the cross-examiner s inability to expose the opinion s shortcomings may prevent an effective evaluation of the evidence by the jury. There is a risk that a jury faced with a well presented firm opinion may abdicate its fact-finding role on the understandable assumption that a person labeled as an expert by the trial judge knows more about his or her area of expertise than do the individual members of the jury: J.-L.J at para. 25. In addition to the risk that the jury will yield its fact finding function, expert opinion evidence can also compromise the trial process by unduly protracting and complicating proceedings. Unnecessary and excessive resort to expert evidence can also give a distinct advantage to the party with the resources to hire the most and best experts 19 Both Mohan and Abbey were applied in the recent decision of the Ontario Court of Appeal in Meady v. Greyhound Canada Transportation Corp. 20. The action concerned claims for personal injury damages relating to a bus crash that killed one person and injured many of the 32 passengers on the bus. The crash was caused by an unstable passenger, Shaun Davis, who lunged at the driver and grabbed the steering wheel, causing the bus to veer off the road and topple on its side. A number of passengers sued Davis, Greyhound, the bus driver, two OPP officers who had contact with Davis before he boarded the bus, and their employer the Crown. 21 At trial, the claim was dismissed against all Defendants except Davis. At issue on the appeal was the trial judge s decision to exclude two experts one a specialist in police training and the other an expert in bus safety. 19 Ibid. at paras. 87, Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6 [ Meady ] released January 6, Ibid. at para. 5.

14 Page 14 In dismissing the appeal, Justice Strathy, writing for the unanimous panel, enunciated the principles governing the admissibility of expert evidence and clarified the gatekeeper role of the judiciary: There has been a growing recognition of the responsibility of the trial judge to exercise a more robust gatekeeper role in the admission of expert evidence This observation holds true for both civil and criminal contexts. Although much of the discussion has focused on increasing scrutiny of threshold reliability at the gatekeeper stage, it is equally important to ensure the evidence is genuinely necessary. There are compelling rationales underlying this approach. Unnecessary expert evidence distracts the trier of fact from the issues at hand, complicates the proceeding, prolongs the trial and increases the cost of litigation [ ] In one of his rulings, the trial judge referred to Bryant, Lederman and Fuerst, The Law of Evidence in Canada, 3 rd ed. (Markham: LexisNexis, 2009) at pp , where the authors observe that there is no bright line to determine whether the subject matter of expert evidence falls within the normal experience of a particular trier of fact [ ] For these reasons, deference is owed to the exercise of the trial judge s gatekeeper function in excluding unnecessary evidence. The trial judge is best equipped to appreciate the issues in the context of the evidence as it unfolds and to determine the extent to which, if at all, expert evidence is required to assist the trier of fact in the disposition of the issues 22 The Court found that the trial judge made no error in excluding the proposed expert evidence on police training as the exercise of police powers of investigation, arrest and detention and police interactions with the public were part of the daily diet of judges of the 22 Ibid. at paras , 41-42

15 Page 15 Superior Court. 23 Similarly, the Court found that the trial judge made no error in finding that the proposed expert in bus safety was unnecessary to resolve the allegations of negligence. Those allegations were issues frequently decided in motor vehicle negligence cases without the assistance of expert evidence. 24 In the recent decision of Imelda DeBruge v. Diana Arnold 25, Justice Edwards considered the admissibility of testimony of an orthopedic surgeon who proffered expert evidence with respect to the permanence and seriousness of the plaintiff s chronic shoulder pain. The jury awarded the plaintiff $75,000 for general damages, nothing for past wages, $8,300 for future housekeeping and $5,000 for future medical rehabilitation expenses. The defence, at the completion of the trial, brought a threshold motion requesting the trial judge s determination of whether the plaintiff s injuries met the threshold of being a serious and permanent injury. The defence impugned the qualifications of the plaintiff s expert to opine on the nature and permanence of the impairment given that the expert had not been qualified as an expert in chronic pain. 26 In concluding that the plaintiff s injuries did not meet the threshold, Justice Edwards found that the expert had not been qualified to offer an opinion on the nature and extent of the plaintiff s chronic pain and so, accordingly, the plaintiff did not meet her obligation to lead evidence as to the serious and permanent nature of her injury. Additionally, Justice 23 Ibid. at para Ibid. at paras Imelda DeBruge v. Diana Arnold, 2014 ONSC 7044 [ DeBruge ] 26 Ibid. at para. 1, 8 and 46

16 Page 16 Edwards held in obiter that even had the expert been properly qualified, he would not have accepted the opinion evidence, as the expert opinion was neither fair, objective nor nonpartisan. [The expert], unfortunately, like so many other experts that this court sees both in court and in reports filed in pre-trial memorandums, completely failed to understand the role of an expert, that being to assist the court in an unbiased objective manner. 27 Justice Edwards placed emphasis on the lack of contemporaneous complaints found in the notes of the plaintiff s treating family physician and was critical of the failure to lead expert evidence of the treating physicians that would be compliant with the requirements of Rule Where a medical legal expert is retained to provide the only opinion evidence on the threshold it will, in my opinion, be a rare case where that opinion evidence will carry the day on a threshold motion. This is particularly so where there is evidence of treating doctors that conflict with the evidence of the expert who many might call a hired gun. Trial judges are constantly reminded about the gate-keeper function which we must perform when dealing with the evidence of expert. We are also constantly reminded about how experts have, in many respects, become the life-blood of personal injury litigation [ ] However, where there are treating doctors, many of whom are more than qualified to give opinion evidence (provided the provisions of rule are complied with), it is difficult to understand why a medical legal expert is required as well. The gatekeeper function of the judiciary with respect to the admissibility of expert evidence is one that engages a robust and critical analysis of the evidence necessary to prove 27 Ibid. at para Ibid. at para. 54

17 Page 17 legally relevant facts, through the most appropriate experts properly qualified in their area of proposed testimony. Even when those criteria are met, expert opinion evidence may still be excluded if the expert fails to fully appreciate their role to the court to provide objective and neutral evidence. DeBruge is of critical importance to plaintiff s counsel: relying on a medical legal expert in the absence of compelling, persuasive, and admissible expert evidence from the plaintiff s treating physicians is a risky trial strategy, which, in this case, resulted in the action being dismissed. V. SCOPE OF EXPERT TESTIMONY As a precondition to calling an expert, a copy of the expert report setting out the expert s qualifications and the substance of the proposed testimony must be served on every other party within the time limits prescribed by Rule New subrule 53.03(2.1) sets out in detail what is to be included in the report, and subrule 53.03(3) provides that an expert witness may not testify with respect to an issue, except with leave from the trial judge, unless the substance of the testimony with respect to that issue is set out in a report or supplementary report. Subrule 53.03(2.2) requires the parties to agree to a schedule setting out the dates for the exchange of expert reports within sixty days of setting an action down for trial.

18 Page 18 In Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham 29, the Ontario Court of Appeal considered the meaning of the substance requirement of Rule 53.03: In our view, these cases indicate that the substance requirement of Rule 53.03(1) must be determined in light of the purpose of the Rule, which is to facilitate orderly trial preparation by providing opposing parties with adequate notice of opinion evidence to be adduced at trial. Accordingly, an expert report cannot merely state a conclusion. The report must set out the expert s opinion, and the basis for that opinion. Further, while testifying, an expert may explain and amplify what is in his or her report but only on matters that are latent and touched on by the report. An expert may not testify about matters that open up a new field not mentioned in the report. The trial judge must be accorded a certain amount of discretion in applying Rule with a view to ensuring that a party is not unfairly taken by surprise. 30 In Marchand, the plaintiffs appealed the trial decision on a number of issues, one of which included the trial judge s decision to limit one of the expert witnesses in testifying as to the meaning of bradycardia, oxygen deprivation and fetal reserve. In this medical malpractice compromised baby case, the plaintiff argued at trial that because the expert report dealt with the standard of care in treating an overdue mother, questions dealing with signs of fetal distress in the hours before delivery were latent in the report. The Court of Appeal upheld the trial judge s ruling that the expert was not permitted to testify about bradycardia, as those 29 Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham), [2000] O.J. No (C.A.), leave to appeal to S.C.C. dismissed [ Marchand ] 30 Ibid. at para. 38

19 Page 19 were issues going to causation and the proposed expert had only been qualified to offer evidence on the standard of care. 31 Marchand s analysis was strictly followed by Justice Darla Wilson in Hoang v. Vicentini 32, an action for personal injury damages flowing from a motor vehicle accident. During the course of the trial, issues arose about the ambit of testimony of an expert engineer retained by the plaintiff. The plaintiff sought to qualify the engineer as an accident reconstruction expert, entitled to provide the Court with opinion evidence in a number of areas, specifically the performance of the brakes and human factors evidence related to perception/reaction times. In refusing to permit the engineer to testify on the performance of the brakes, Justice Wilson provided some useful direction on the content and requirement of Rule reports: Rule 53 of the Rules of Civil Procedure, R.R.O 1990, reg. 194 ( the Rules ) specifically requires an expert to set out his or her opinion including the factual basis upon which it rests. It is not the job of the Court to search around the body of an expert report and try and ascertain all of the implicit opinions contained in it. One of the purposes of the amendments to Rule 53 was to ensure that the expert clearly sets out the opinion, the basis for it and the documentation that was relied upon in arriving at that opinion, so that opposing counsel can easily understand the opinion of the expert and how it was arrived at. The [expert] report cannot, by any stretch of the imagination, be seen to contain the opinion that the condition of the brakes caused or contributed to the motor vehicle accident. This is not a situation where a new document was produced that arguably modified the expert s opinion; it is clear that the police investigation file including the 31 Ibid. at paras 30-31, Hoang v. Vicentini, 2012 ONSC 1358 [ Hoang ]

20 Page 20 mechanical inspection was available and sent to [the expert] after his retainer and many months prior to the completion of his initial report. I do not accept the argument that what counsel wishes [the expert] to do is to amplify or expand on his opinion as set out in the report. [The expert s] report clearly lists nine conclusions that he arrives at in this file and the operation of the brakes in not identified as one of the conclusions. To permit him to now offer this opinion to the Court would be a contravention of the requirements of Rule 53. While the Court clearly has discretion to admit evidence that does not strictly comply with Rule 53, there is no basis on which to do so on the facts of the case before me. 33 One cannot leave the discussion about the scope of expert testimony without reviewing the decision of the Divisional Court in Westerhof v. Gee (Estate) 34, currently under appeal. In Westerhof, the plaintiff appealed the trial judge s dismissal of his claim for damages arising from a car accident. While the jury awarded general and loss of income damages, the claim was dismissed on the subsequent determination, by the trial judge, that the claim for non-pecuniary damages did not meet the threshold. At issue on the appeal was the trial judge s ruling as to the admissibility of evidence of a number of witnesses called on behalf of the plaintiff at trial, most of whom had not filed a report compliant with the requirements of Rule Justice Lederer, writing for the unanimous panel, reviewed the cases dealing with the application of Rule 53.03, some of which attempted to distinguish between treating physicians and experts retained for litigation. In concluding that there was no reason to distinguish between treating doctors and other expert evidence, Justice Lederer 33 Ibid. at paras Westerhof v. Gee (Estate), 2013 ONSC 2093 [ Westerhof ]

21 Page 21 clarified that an expert report compliant with Rule is a precondition to any witness seeking to offer opinion evidence: The important distinction is not in the role or involvement of the witness, but in the type of evidence sought to be admitted. If it is opinion evidence, compliance with rule is required; if it is factual evidence, it is not. Based on this distinction, it is not difficult to see that, where the expert has not been qualified to give opinions to be tendered or where the report relied on to advance the opinion does not comply with rule 53.03, it is correct for the trial judge to refuse to admit the evidence [ ] Treating professionals do not stand apart. They are present during the progress of any injury suffered by a plaintiff. They may give evidence as to their observations of the plaintiff and their description of the treatment provided. This is factual and not opinion evidence. Simply put, a treating physician or other treating professional who limits his or her evidence in this way does not need to be qualified and is not treated as an expert. It is when the witnesses seeks to offer opinions as to the cause of the injury, it s pathology or prognosis that the evidence enters into the area of expert opinion requiring compliance with rule [ ] A diagnosis is not always a fact. In the law of evidence, an opinion is an inference from observed facts (see R v. Abbey, supra at 409, as quoted in R. v. Collins, supra, at para. 17). A diagnosis begins as an inference a doctor, relying on his or her expertise and experience, makes from observations and other information to identify an injury or disease. It may, as a result of further observation or the response to treatment, prove to be correct. It may also turn out to be wrong. Having said this, there are situations where evidence of a diagnosis may be treated as a fact. It depends on the purpose to which the evidence is put. If a physician gives evidence of his or her diagnosis to explain the treatment provided, it is a fact that the diagnosis was the catalyst for the treatment. The diagnosis may still have been wrong. The statement of the witness does not establish as a fact that it correctly diagnosis the injury or illness. It is only relevant and admissible to understand the basis of the treatment chosen. It may be that the inference to be drawn seems irrefutable as a result of the observations

22 Page 22 that can be made, for example, by use of an x-ray. Even so, for the purposes of evidence, it remains an opinion. X-rays can be misread. In this case, it is opinion of the treating professionals that the judge required to be supported by reports that complied with rule He was correct in doing so. 35 Westerhof was applied by Justice Janet Wilson in Moore to exclude the evidence regarding standard of care and causation issues addressed by treating emergency physician as he had not served a report in compliance with rule Until we receive the decision of the Court of Appeal in Westerhof, it remains binding law in Ontario. VI. CROSS-EXAMINATION Cross examining an expert witness is as much as a science as an art. You must carefully scrutinize the expert s CV and publications to discern any potential areas of crossexamination. It is good practice to have the expert admit that their CV is complete and accurate, and that they knew it would be used in a Court proceeding. After you have tied them to their CV, you can then hone in on any deficiencies (i.e. no publications on relevant issues, not a practising physician for many years, only complete medical legal reports for one side, etc.). You are entitled to cross-examine the expert on any issue that is logically relevant to the matters at issue. What is not the subject of proper cross-examination of an expert is prior negative judicial commentary on that expert s testimony in a different case Ibid. at paras See Regina v. Ghorvei, [1999] O.J. No (C.A.); R. v. Karaibrahimovic, [220] A.J. No. 527 (C.A.); Desbiens v. Mordini, [2004] O.J. No (S.C.J.)

23 Page 23 The cross-examination of an expert is fraught with peril. Yet, when done well, it reminds one of what Churchill once wrote of his days of a cavalry officer in Africa: Nothing in life is so exhilarating as to be shot at without result. Few areas have engendered as many textbooks, legal articles, and commentary as has the topic of cross-examination. It is beyond the scope of this paper to offer more than passing references and hopeful suggestions regarding cross-examination. We have offered a few salient points, which we hope will be of assistance. Advocacy: Views From The Bench written by Justices Robert Reid and Richard Holland is a book that should be in every advocate s library. It provides a succinct primer on advocacy. There are many wise and helpful passages on cross-examination that are worth mentioning. Justices Reid and Holland remind us that The purpose of crossexamination is, first, to weaken or discredit the testimony of the witness given in chief and, second, to elicit those parts of the witness s evidence favourable to your case Reid, Robert F. and Holland, Richard E., Advocacy: Views from the Bench, 1984, Macmillan Publishing Co. Inc., page 134

24 Page 24 Further, Reid and Holland state You will try to show the witness to be unworthy of credit by reason of inconsistent statements, inconsistency with proven facts, faulty memory, lack of opportunity to see or hear and the inherent improbability of his evidence. 38 The learned authors tell us to tailor your cross-examination to the witness and never to bully or to use sarcasm and never to be unfair. Otherwise, you will risk creating sympathy for the witness you seek to discredit. They tell us that the worst possible type of cross-examination is the tedious review in a loud voice of the evidence of the witness given in chief in the vain hope that he or she will change his or her testimony. By doing so, one reinforces your opponent s case and the favourable evidence is repeated for the judge and jury. There are only a few essential points on which one should cross-examine and Justices Reid and Holland adumbrate three rules that are essential to any good crossexamination. 39 We have repeated the list. Primary rules: 1. Prepare your cross-examination carefully. 2. Always lead. Ask closed questions; never ask an open question. 3. Make your point and switch to another or stop. 38 Ibid. Reid and Holland, page Ibid, Reid and Holland, page 137.

25 Page 25 Secondary rules: 1. Try to start well and end well. 2. Use simple language with short questions. 3. Do not ask a question unless you have a very good idea of the answer. 4. Do not get into arguments with the witness: keep your temper. 5. Be aware of the value of the surprise question. 6. Do not pass a witness. 40 Passing a witness, of course, refers to Brown and Dunn (1893), 6 R. 67 (H.L.) and the requirement to put to a witness in cross-examination that part of the evidence one expects to lead in chief. Failure to do so may prevent the evidence from being adduced. Cross-examination of the Expert There are few things as difficult to do yet are vitally important to your case as is the cross-examination of the expert. Justices Reid and Holland offer the following helpful suggestions in the cross-examination of the expert. 1. Is the expert you are cross-examining really an expert in this field as your own expert? If not, bring out the lack of expertise in your crossexamination. 2. Is the expert s opinion contrary to that of recognized authority, and possibly contrary to the writings of the very expert you are crossexamining? 40 Ibid, Reid and Holland, page 136.

26 Page Most experts opinions are based on certain factual assumptions. If these factual assumptions can be successfully attacked then the opinion will fail. 4. Bias. 41 It is beyond the scope of this paper to elaborate more fully with respect to the crossexamination of the expert, however, it would be helpful to recall the words of Mr. Justice Moore in Frazer v. Haukioja, [2008] CanLii (Ont. Sup. Ct.) affirmed (2010) 101 (O.R. (3d) 528 Ont. Ct. App., in which he said the following with respect to the role of the expert. [137] This is a difficult case and it has been made all the more so by the evidence and attitude of four of the experts who attended and who gave evidence at trial. It is generally understood that an expert stands in a position of privilege when compared to lay witnesses for an expert is allowed to offer opinions on matters within the expert s area of expertise. A party seeking to call expert evidence must show that the subject matter of the expert's opinion falls outside the likely range of knowledge and experience of the trier of fact[1]. [138] Whatever role the expert may have undertaken during the course of the litigation in assisting counsel to a fuller appreciation of the facts in dispute and the inferences that might be drawn from them, the expert must set aside that role upon entering the witness box at trial. From the witness box the expert speaks only to assist the court. [139] At trial the expert must be and appear to be independent of the party or counsel who retained the services of the expert and must demonstrate objectivity and impartiality in the analyses and opinions that she or he is 41 Ibid, Reid and Holland, page 148.

27 allowed to give. Because the opinions stated by an expert are predicated upon expertise that the court does not possess, the court must be confident in relying upon the expert to provide a thorough, balanced and technically sound analysis. Independence and impartiality; the court expects nothing more and it will accept nothing less. [140] The court endeavors to adjudicate each matter coming before it fairly and free from bias. To the extent that the court must receive and rely upon the expert opinions of others and to the extent that those opinions are tainted, the administration of justice is imperiled. [141] In England[2] and also in Canada[3], courts have identified and applied several factors relevant to the receipt of expert evidence including: 1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his [or her] expertise... An expert witness... should never assume the role of an advocate. 3. An expert witness should state the facts or assumptions upon which his [or her] opinion is based. He [or she] should not omit to consider material facts which could detract from his [or her] concluded opinion An expert witness should make it clear when a particular question or issue falls outside his [or her] expertise. 5. If an expert's opinion is not properly researched because he [or she] considers [there to be]... insufficient data... available, then this must be stated with an indication that the opinion is no more than a provisional one... In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report... Page 27

28 Page 28 [142] The independence of Dr. Neal rises to a level of concern for the court since the doctor has chosen to include reference in his C.V. (trial exhibit 37) to the fact that he is a medical expert for the law firm that retained him in this case and, as well, by his agreement to provide a formal opinion to counsel in writing only after discussing his views with counsel orally. [143] Dr. Neal s impartiality is called into question by his having had several hours of telephone conversations and a meeting with counsel before preparing his reports and by having read transcripts of evidence containing facts clearly different from the facts upon which his opinions were based and without stating that he had done so, let alone explaining why. [144] Dr. Neal appeared very red faced, coy and defensive during his cross examination upon these matters. He prefaced his remarks repeatedly with the words: truth is; honestly; I ve given this considerable thought; or, I m being frank. The appearance of impartiality faded dramatically as the cross examination proceeded. [145] The cross examination of Dr. Reznek brought his objectivity into the limelight. It began with a review of the doctor s stated aspiration to assist the court with objective and impartial evidence but in the context of a practice profile that he admits involves about 80% of his medical legal work being done for defendants and that involves more like 25% of his professional time being devoted to medical legal matters from which he earns probably twice as much income as he does from his clinical practice. [146] That an expert is paid for services rendered in a case is not, of itself, a concern but the profile elicited from Dr. Reznek is a red flag, the sight of which focuses the court s attention upon the need for impartiality to be demonstrated in the evidence the proposed to give. The demonstration of that impartiality was found wanting. [154] Cherry picking facts that support a diagnosis that just happens to support the cause of the client that retained the expert and failing to include the facts that hurt the cause, whether those latter facts are capable of explanation

29 and elimination in the course of the development of the expert s analysis and opinion or not smacks of partiality. [155] Dr. Reznek s evidence in chief appeared to be balanced, to be thoroughly and professionally developed. Appearances can be deceiving. This evidence has been shown not to be in tune with either the spirit or the letter of the applicable rules. In the result, this evidence is of precious little help to the court. [156] Cross examination on Dr. Reznek s evidence turned this case around. The many contributing causes for Grant s anxiety have been demonstrated to include several that are inextricably interwoven with Dr. Haukioja s professional relationship with Grant and the extent that Grant perceives that the doctor has let him down and caused him pain and discomfort and disability thereby. [157] Doctors Sadavoy and Reznek share the view that Grant s psychiatric disorder is serious and disabling. Both endorse treatment options but neither predicts early, lasting or meaningful success in returning Grant thereby to what had been the norm for Grant. [158] By ignoring the alleged malpractice, Dr. Reznek gave up his opportunity to address the nature and significance of the doctor patient relationship, its breakdown and the implications therefrom to the decline in Grant s mental health and his ability to cope and to function. His evidence in cross examination clearly supports the conclusion that Dr. Haukioja s conduct materially contributed to Grant s psychiatric illness. Further, Dr. Reznek stopped short of saying that any of the contributing factors associated with Dr. Haukioja s conduct played a de minimus role, individually or collectively in producing Grant s disability. 42 Page 29 VII. CALLING MORE THAN THREE EXPERT WITNESSES Section 12 of the Evidence Act, R.S.O c. E23 precludes either side from calling more than three expert witnesses, without leave of the judge or presiding tribunal. The 42 Frazer v. Haukioja, [2008] Can Lii (Ont Sup. Ct.) aff d. 101 O.R. (3d) 528 Ont. Ct. of App., paragraphs 137 to 146 and 154 to 158.

30 Page 30 seminal case on this issue is the decision of Justice Ferguson in Burgess (Litigation Guardian of) v. Wu 43, where each party sought leave to call more than three expert witnesses. Counsel for the plaintiff sought a declaration that Section 12 should be interpreted as requiring leave only where there are more than three experts called by a party on a particular issue. Justice Ferguson did not accept that interpretation of Section 12 and held that leave will be required whenever a party intended to call more than three witnesses, regardless of the number of issues. He also enunciated a number of factors to consider when deciding whether or not to grant leave: A decision on motions like this will necessarily be fact driven and consequently it is not possible to identify a fixed list of relevant factors. However, I conclude the following are relevant factors in this case taking into account the caselaw and the circumstances of this case: a. Whether the opposing party objects to leave being granted. While I can imagine situations where both parties are overkilling the evidence, I think that if both parties have agreed on certain numbers of experts or on filing reports from some experts in addition to calling others then this is a significant factor. While there is certainly public expense involved, in civil cases the parties bear a very substantial portion of the costs of trial which is the crux of the rule. I believe contested motions on the issue of granting leave are rare. I think that where there is no opposition then leave is usually granted. b. The number of expert subjects in issue. c. The number of experts each side proposes to have opine on each subject. d. How many experts are customarily called in cases with similar issues? e. Will the opposing party be disadvantaged if leave is granted because the applying party will have more experts than the opposing party? 43 Burgess (Litigation Guardian of) v. Wu, [2005] O.J. No. 929 (S.C.J.) [ Burgess ]