Courts can benefit from limiting unworthy expert witness testimony

By Tony Poland, LegalMatters Staff • The proliferation of professional expert witnesses has become an impediment to Ontario’s justice system, says Barrie-area litigator M. Steven Rastin.

However, he says he is encouraged by an increased willingness of judges to act as gatekeepers to limit unworthy expert testimony.

“Trials in Ontario take longer than most other jurisdictions,” says Rastin, senior counsel at Rastin Gluckstein. “Part of the problem is that we have so many expert witnesses giving testimony and, in too many cases, those experts are acting as advocates for one side or the other rather than as neutral aids to the Court.

“There are significant financial incentives acting as experts for parties in legal disputes,” he tells LegalMattersCanada.ca. “And what has happened, especially in Ontario, is an entire industry has developed of professional witnesses who make more money writing expert reports and evaluating cases than they do from working in a typical or clinical practice.”

That is not to say expert witnesses do not play an important role in the administration of justice, Rastin notes.

Primary loyalty should be to the truth

“It is reasonable to have an expert as long as that expert’s primary loyalty is to the truth,” he says. “Some of these people, even though they testify all the time, are very good, very fair and very balanced. 

“However, some have a reputation for being predisposed,” Rastin adds. “It is interesting because there are judges who roll their eyes when certain people testify because they have had experience with these biased expert witnesses before.”

He explains that under the Rules of Civil Procedure, expert witnesses are expected to sign a form “acknowledging the fact that they are not there for either party in the case but to assist the court and to tell the truth.” 

Rastin says it is not unheard of for an expert witness to give testimony slanted to the side that paid them but it can be difficult weeding out the culprits.

“There is a principle in our legal system stating prior negative judicial comment is generally inadmissible,” he says. “For example, if a judge finds a doctor is completely biased and does not accept their evidence, you would think that doctor would not be called to testify in other cases because his reliability has been questioned.

Prior negative judicial comment

“But that is not the case. The principle of prior negative judicial comment means you cannot cross-examine an expert and ask whether it is true that another judge found that they were not neutral and unbiased.”

That presents a problem in a jury trial since jurors will generally accept that the expert witness is not a “gun for hire,” says Rastin.

“Lawyers know when we are dealing with a professional witness. So does the judge. But the jury would not be aware,” he says. “You can have very distinguished-looking experts, sometimes from very high-profile institutions, giving evidence that is biased or improper. However, jurors are only told they are hearing testimony from an expert and don’t know that this particular expert may have a problematic track record.

“One solution that has been discussed is to eliminate juries but that doesn’t look like it is going to happen,” Rastin adds. “If we are going to keep juries, they should have all the information on expert witnesses that the court does. Who the usual suspects are, if the courts have consistently found someone is unreliable and biased. We should be able to put that in front of the jury.

“If we are going to keep juries in our system and have them make decisions. it would be better if jurors knew what everybody else knows – that the witness is a professional who makes his living writing expert reports and testifying at trial.”

Court rulings provide hope

He says courts must strive to “limit experts who are advocates” for one side, adding two recent Ontario Court of Appeal (ONCA) judgments provide hope that things can change.

In R. v. Hason, Justice Michael H. Tulloch writes “unreliable expert evidence is a serious concern for the justice system.”

“These risks can sometimes exist even in cases involving highly experienced expert witnesses. While all justice system participants have a responsibility to guard against these risks, judges are the last line of defence,” he states. “By carefully scrutinizing expert evidence and issuing decisions concerning its admissibility and weight, they alert everyone in the justice system to concerning red flags regarding particular experts. It is incumbent on all of us to take those red flags seriously to prevent a repeat of past miscarriages of justice involving unreliable expert evidence.”

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In Kolapully v. Myles, Justice Peter Lauwers noted there are “two steps in the test to admit expert evidence.”

“The first is the threshold requirement, and the second engages the judge’s discretionary, gatekeeper function,” he writes. “The threshold requirement has four elements for admissibility: the evidence must be relevant; it must be necessary in assisting the trier of fact; no other evidentiary rule should apply to exclude it; and the expert must be properly qualified.

‘Must weigh the potential risks and benefits’

“At the second, gatekeeping step, the trial judge must weigh the potential risks and benefits of admitting the evidence to decide whether the potential benefits justify the potential harm to the trial process that might flow from the admission of the expert evidence.”

Rastin says he welcomes judges acting as “gatekeepers.”

“If the courts consistently find someone is unreliable and biased, we, as lawyers, should be able to put that in front of the jury,” he says. “If somebody has repeatedly demonstrated they cannot give fair and impartial evidence, perhaps we ought not allow them in the courthouse at all.”

Rastin cited the Ontario Trial Lawyers Association’s (OTLA) report Expert Bias and the Judge’s Role as Gatekeeper, which examined the issue at its Spring Conference in May.

“Expert evidence has long been a staple in medical malpractice and personal injury cases. Expert evidence that lacks impartiality, however, may result in egregious miscarriages of justice,” the report states. “The Legislature and the Court have each progressively tightened the rules and tests regarding the admissibility of expert evidence and enhanced the trial judge’s role as gatekeeper.”

Supreme Court provided clarity and guidance

The OTLA referenced White Burgess Langille Inman v. Abbott and Haliburton Co., the landmark Supreme Court of Canada (SCC) decision that provided clarity and guidance on the admissibility of expert evidence.

“Expert witnesses have a duty to the court to give fair, objective and non-partisan opinion evidence. They must be aware of this duty and able and willing to carry it out,” according to the SCC. “The expert’s opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation.

“It must be unbiased in the sense that it does not unfairly favour one party’s position over another,” the court added. “The acid test is whether the expert’s opinion would not change regardless of which party retained him or her.”

Positive impact on the judicial system

Rastin says the recent ONCA judgments and the Supreme Court decision can have a positive impact on the judicial system.

“This represents a potential unlocking of the door that might allow us to simplify the trial process. The Supreme Court essentially opened the floodgates on the need for judges to act as gatekeepers and it is becoming more common,” he says. “My view is, if judges become more comfortable exercising their gatekeeper function and preventing biased experts from testifying, and if judges accept what the court of appeal says and start allowing negative judicial comment to go into evidence, it would facilitate access to justice.

“It would assist proper outcomes of trials, it would shorten trials, it would simplify trials,” Rastin adds. “It would save judicial resources if we could take steps to limit the reach of hired gun experts on both sides of our system. The squeaky wheels of justice in Ontario would turn much smoother.”