Impartiality and clear, evidence-based testimony enhance settlement chances and trial outcomes
This article was created in partnership with McLeish Orlando LLP
Expert witnesses with credibility and an unbiased opinion are integral to a successful personal injury case, and that’s why it’s critical to select them with care, says Brandon Pedersen, associate at McLeish Orlando LLP.
“The client stating what they’re going through means one thing but supporting it with medical evidence is so important — it gets things across the line,” Pedersen explains. “Think about what the issues are and what you need to prove as that will help you build a more solid case and have a grasp of how strong it is from an earlier point in the litigation.”
As per the Rules of Civil Procedure, expert witnesses have a duty to be impartial and provide opinion evidence to assist the trier of fact in determining the issues in dispute. Rule 53.03 sets out the requirements for the admission of an expert’s testimony at trial, including the content of their expert report and the inclusion of Form 53 which is an acknowledgment of their duty.
If the expert doesn’t comply with that framework, they run the risk of having their evidence excluded at trial. But even if the matter doesn’t get to court, a subjective expert’s testimony won’t do you any favours during settlement discussions either.
“If your expert writes like an advocate, there’s no credibility and the other side will say it’s clearly coming from somebody in the injured person’s corner, and in their corner only,” Pedersen says. “They won’t make it easy to settle because they know if they get the expert on the stand at trial, they’ll be easily cross-examined, and their bias will be revealed. You don’t want somebody coming off as the client’s #1 fan.”
Counsel should step back and determine if the expert’s testimony reads more like a dramatized novel than an informed opinion, Pedersen advises: for example, the difference between “This was a horrific tragedy of epic proportions” versus “The collision caused extensive injuries that will reduce the plaintiff’s ability to function at work.”
Whether they’re the client’s treating practitioner, an occupational therapist, or a specialist such as an orthopedic surgeon, to effectively engage an expert you must utilize them for their strengths. Though it’s a case-by-case scenario, a thorough review of the client’s medical records and ongoing symptoms is critical in identifying the specific expert that’s most qualified — an orthopedic surgeon commenting on a brain bleed is not going to assist the trier of fact.
In addition to making sure the expert witness knows what’s required under the Rules, it’s also important that counsel explains the legal side of things.
“Some experts understand these things through past medical legal reports, but those who haven’t may need education on the onus of proof, for example, or the balance of probability,” Pedersen says. “It’s something health practitioners might not have thought about, but as lawyers we know we need that strong language — if there’s not that strong language, maybe the case isn’t as strong as we thought it was.”
Experts should also understand causation and how critical it is to connect the injury the plaintiff sustained to the event that occurred due to the defendant’s negligence. Again, it’s about the language used in the report: has the injured person suffered a permanent, serious impairment of an important physical, mental, or psychological function? There are different criteria considered, as set out in the Insurance Act, and the expert evidence helps determine whether the plaintiff meets that threshold.
Sometimes an expert opts to leave something out thinking they’ll clarify it later, but once they take the stand, everything they testify to must be within the confines of their report, or the other side will argue it’s not within the witness’ expertise. Overall, it’s imperative experts prepare a detailed and comprehensive report.
Following 2022 amendments to Rule 53.08 that gave judges more discretion over whether to allow late filing of expert reports, there’s been much less leniency. Reluctant to add to the significant backlog or waste court resources, “judges are now saying, you better be ready because we’re going ahead whether you are prepared or not,” Pedersen notes. This is positive as it improves trial readiness on both sides: once the reports are in the parties know the case they must meet and what evidence would be called during trial, and that promotes early resolution by allowing for assessment of the strengths or weaknesses of one’s case.
“The discretionary change helps in several ways, but mainly by forcing the parties to get their act together, not let matters languish, and hopefully resolving cases earlier as opposed to getting in a court room.”
There have also been more decisions cracking down on “hired guns” where judges are exercising their gatekeeper function to keep out experts who are not impartial. Though there is a rule that states an expert’s conduct in previous cases, such as showing bias and being excluded, is separate and apart from future cases and therefore cannot be commented on during new proceedings, the footnotes of a recent Ontario Court of Appeal case noted that it “might be time to revisit” barring “negative judicial commentary.”
Pedersen points to one expert witness who consistently gave bad forensic evidence leading to many wrongful convictions in the criminal context yet escaped scrutiny for years. The recent footnote may indicate that the courts are reconsidering how to apply the rule against raising prior negative judicial comment and there are several situations where relaxing it would enhance the search for truth, Pedersen says, adding that “you don't want to shield specific experts and their testimony, simply because there's this rule that says you can't bring up what they've said in the past.”
Though currently it’s unclear how these issues will unfold, the landscape of expert witnesses is ever-changing — which is ultimately a positive thing for both sides of the table.
“The idea is that the trier of fact needs to be in a position to rule on the issues using evidence that is impartial, and it shouldn't be blown up by way of being dramatic or by having people's personal opinions or biases shown throughout their evidence,” Pedersen says. “I hope this area continues to evolve but only time will tell.”
