Corralling the Experts: Opinion Containment
By Richard Bogoroch
November, 1997
Introduction
There are a few things as difficult or as dangerous as the cross-examination of the defendant’s expert. While it is often said that a plaintiff’s case is made or lost on the strength and credibility of the plaintiff’s witnesses, one can never underestimate the damage that the defendant’s experts can do to the plaintiff’s case in compelling a less than advantageous settlement offer during the course of the trial or alternatively, setting the stage for a favourable verdict for the defence. Trials in the 90’s have become in many cases a battle of the experts.
Trials today are quite different from the way they were 10 or 15 years ago. The stakes are much higher and the cost to the winners and losers are so much greater. Not too long ago, the average personal injury trial lasted between 5 and 8 days. Today a 5 to 8 day trial is rare.
What is also a departure is that experts themselves have entered into the fray, thus betraying their role as independent objective professionals, and often impeding justice for injured and afflicted people. Today, the defence orthopaedic surgeon holds himself out as not simply an expert in orthopaedics, but also in psychology, psychiatry, rheumatology, chronic pain and fibromyalgia. Today the psychologist is not simply an expert in psychology, but also an expert in rehabilitation medicine. In case after case, the expert once qualified, becomes an expert in everything. Expert witnesses have been accorded wide latitude by the courts and have been permitted to offer opinion evidence on matters clearly outside their area of expertise. Containing the expert is a task which is becoming increasingly difficult, particularly in light of the Supreme Court of Canada’s decision in R. v. Marquard [1993] 4 S.C.R., 223, which will be discussed below. The aim of this paper is to shed some light on this complex and controversial aspect of the law of evidence.
1. The Role of the Expert – A Review of First Principles
In National Justice Compania Naviera S. A. v. Prudential Assurance Co. Ltd. [1993] 2 Lloyd’s Reports 68, also known as “The Ikarian/Reefer”, Mr. Justice Cresswell summarized the duties and responsibilities of the expert (p. 81-82) (as paraphrased):
- 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 exigencies of litigation.
- An expert should provide independent assistance to the court by objective unbiased opinion in relation to matters within his or her expertise. An expert witness should never assume the role of advocate.
- An expert should state the facts or assumptions upon which the opinion is based and should not omit to consider material facts which detract from that opinion.
- An expert witness should make it clear when a particular question or issue falls outside his area of expertise.
- If an expert’s opinion is not properly researched because insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one.
- If after the exchange of reports, an expert changes his or her view in a material matter, having read the other side’s expert report, that fact should be promptly communicated to the other side.
- Where expert evidence refers to photographs, plans, calculations, etc. they must be provided to the opposite party. (underlining mine)
The “Ikarian/Reefer” has been followed by Canadian courts. It is useful to remind the defence expert of his duty and responsibility. Regrettably, not many experts today in the cut and thrust of litigation, adhere to the principals adumbrated by the “Ikarian Reefer.” Portraying the defendant’s expert as an advocate and not as a disinterested expert trying to assist the court will help to weaken the defendant’s case and hopefully cause the trier of fact to accord little weight to the expert’s opinion.
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