Social Justice: Expert witnesses and access to justice

The recently reported decision of Bruff-Murphy v. Gunawardena, 2016 raises important issues concerning the use of civil jury trials and the role of partisan expert witnesses.

The decision arises out of a typical personal injury action. The defendant rear-ended the plaintiff’s vehicle. The plaintiff complained of various injuries that  caused “continuous severe pain.”

The action was held before a judge and jury. 

Of course, the defence served the jury notice. Insurers and defence counsel know that juries raise uncertainty and the prospect of a jury trial drives down the quantum of many settlements. It is all part of the game-playing that takes place in personal injury litigation.

Following the judge’s charge to the jury, defence counsel brought a threshold motion. Under Ontario law, non-pecuniary damages are not recoverable in motor vehicle personal injury litigation unless the injured person has died or has sustained serious disfigurement or permanent serious impairment of an important physical, mental, or psychological function.

Ontario Superior Court Justice Paul Kane dismissed the motion, concluding the plaintiff’s impairments satisfied the threshold. That finding allowed the plaintiff to recover general damages for her substantial injuries. Yet the jury came back with a nominal award of $23,500 for general damages and dismissed all other claims.

How is it that a plaintiff can be found to have suffered permanent serious impairment of an important function and yet only receive a general damages award of $23,500? This plaintiff is married, in her thirties, and has three children. She has a long life expectancy.

The only reasonable explanation I can come up with after reading the judge’s reasons on the threshold motion revolves around the expert evidence introduced by the defence. 

One of the defence’s two expert witnesses was an orthopedic surgeon who testified there was no medical finding to indicate physical impairment, there must be a medical reason to explain pain, pain is a perception, and  it is not evidence-based medicine.

The trial judge rejected this evidence as not being of relevance. More importantly, he criticized the defence choice of a jury trial, stating, “Medical and legal thinking as reflected in jurisprudence, has moved beyond a belief that ‘unless you can see or feel an injury, there is no injury’. Such outdated hypothesis however may be one of the reasons for the current popularity by defendants as in this case to select trial by jury in the hope the jury might accept this outdated argument.”

The second defence expert witness was more problematic. This witness, a psychiatrist, testified that the plaintiff was faking and shouldn’t be believed. To put this evidence into perspective, this expert told the court he had conducted about 5,500 independent medical exams since 1989 at approximately $5,500 per assessment.
All but “a few dozen” were conducted for defendants.

He currently conducts an average of seven to 14 assessments for insurers or defendants per month. These assessments form a large part of the psychiatrist’s practice.These facts alone should have served as a red flag. In three previously reported cases, findings were made that this witness had “become an advocate for the party calling him,” had taken a “partisan approach” or “presented as a notably partisan witness.” 

Yet the court felt compelled to accept the witness as an expert and did not allow the witness to be cross-examined on these prior judicial findings. The judge rejected this expert’s evidence as being not credible for purposes of the threshold motion. In doing so, he stated, the witness “failed to honour his obligation and written undertaking to be fair, objective and non-partisan” and “[T]he vast majority of his report and testimony in chief is not of a psychiatric nature but was presented under the guise of expert medical testimony.”

It seems the defence witnesses had their desired effect on the jury. How else to explain the nominal jury award in a case where the trial judge concluded,
“The evidence of the plaintiff as to her injuries, level of symptoms and limitations are corroborated by her health care providers including some of their testing for veracity. Such evidence is further corroborated by her husband and her friends. In such ways, the plaintiff’s credibility is strongly supported.”

Yes, this is but a single case of injustice. But we are left to speculate on how many deserving plaintiffs have entered into low settlements or suffered low awards due to the evidence of experts of the ilk trotted out by the defence in this case.  Where do we go from here?

I have two suggestions for consideration. First, let’s reconsider the use of civil juries for personal injury litigation. Quebec and the Federal Court of Canada have abolished civil jury trials. England has long since barred the use of juries for personal injury cases. Some states and territories in Australia no longer allow civil jury trials, while others allow civil jury trials but not for motor vehicle litigation. Second, we must do a better job of eliminating partisan experts from participating at any stage of personal injury cases. Efforts to do away with hired gun experts have failed.

The trial judge in the case discussed above declared he would not qualify witnesses as experts in the future if they took a similar approach to that taken by the defence psychiatrist. That’s of small comfort to the plaintiff, Ms. Bruff-McArthur.

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Alan Shanoff was counsel to Sun Media Corp. for 16 years. He is a freelance writer for Sun Media
and teaches media law at Humber College.  His e-mail address is [email protected].