Excluding expert evidence rare, but 'not completely uncommon,' says McLeish Orlando's Brandon Pedersen
An expert’s duty under the Rule 4.1.01 of the Rules of Civil Procedure is well known to not only the experts hired for litigation but also the parties hiring them. Although it’s a rare occurrence that an expert is excluded — only in a very clear case where the expert is unwilling or unable to provide fair, objective, nonpartisan evidence — “it’s not completely uncommon,” says Brandon Pedersen, associate at McLeish Orlando LLP.
In 2015, the Supreme Court of Canada in White Burgess held an expert should be excluded if they are not able and willing to provide the court with fair, objective, and non-partisan evidence. Allowing an expert to testify in these circumstances could potentially influence the entire body of evidence and ultimately, the final outcome of a case. The court’s gatekeeper function in admitting an expert — and assigning weight to their evidence — or choosing not to admit them is a critical one, as is the role of personal injury lawyers who aid and educate the court in why they should not allow an expert to testify.
“In personal injury litigation specifically, experts essentially are how the plaintiff (or defendant) gets to an end result — the experts get us past that finish line,” says Pedersen. “When something so essential to proving (or disproving) a case is tainted, it effects everything.”
Denman v. Radovanovic involved the admissibility of a vascular neurosurgeon’s testimony. The plaintiffs suggested the expert was not impartial and pushed for exclusion. The court went through a list of factors to be considered when determining bias or impartiality including the nature of the stated expertise or special knowledge of the expert; statements publicly or in publications regarding the prosecution itself or evidencing philosophical hostility towards a particular subject; a history of retainer exclusively or nearly so by the prosecution or the defence; long and/or association with one lawyer or party; and whether a significant percentage of their extra income is derived from court appearances, among other factors. The plaintiffs’ lawyer argued the majority of these factors were at play and the court agreed, with the judge inserting a comment in her decision stating it was the first time Her Honour had to exclude an expert at the admissibility stage since being appointed 20 years ago.
“Because of the existence of those factors, the evidence of that doctor should not be allowed in because it’s tainted,” Pedersen says. “The role of the expert is to inform the parties and the trier of fact and not act as an advocate for one side or the other.”
Earlier this year in Moustakis v. Agbuya, a voir dire was held to determine whether or not the evidence of an orthopaedic surgeon should be introduced to the jury. The judge found that the orthopedic surgeon went beyond their expertise in their report by opining that “the injured party’s complaints and ongoing disability cannot be explained on any basis other than a psychiatric conversion disorder,” and as such, the orthopaedic surgeon was not qualified as an expert. The surgeon was not permitted to take the stand in front of the jury because they were not qualified to give a psychological opinion and it could have a potential prejudicial effect.
If the orthopaedic surgeon was allowed to present their evidence and the plaintiffs were to lose, the plaintiff-side lawyer will argue it’s a result of the tainted evidence, appeal, and drag out the litigation, and rightfully so, Pedersen notes. Especially with jury trials, the admissibility stage is even more critical as “those people sitting on the jury are the ones making the decision, and if an expert says something out of line and the judge instructs the jury not to consider it in reaching their decision, often it’s too late — jury members are regular people and it’s difficult for them to wipe from their memory what they have already heard.”
Another decision from 2022, Morris v. Prince, saw plaintiff’s counsel object to a lifecare planner’s testimony quantifying future care costs because the planner did not have any formal education in the area. Plaintiff’s counsel argued their evidence shouldn’t be admitted because of the lack of training. On top of that, in going through the lifecare planner’s report the court found they were acting as an advocate for the party who hired them rather than an officer of the court. The evidence in this case was also not admitted.
“This is another instance of what is colloquially referred to as ‘a hired gun’ — an expert selected primarily by either defence or plaintiff counsel only, and the opposing counsel knows exactly what that report is going to say even before it lands on their desk,” Pedersen says. These bias reports often act as a barrier to settlement.
Although prior negative judicial commentary cannot be used in subsequent cases when qualifying an expert, there are times Pedersen has a report come across his desk where he recognizes the expert’s name and “the first thing through my mind is I know exactly what this will read like, and it sets the tone for the litigation.” Though unable to go into court and denounce the expert, he mitigates the situation by keeping the knowledge “in his back pocket.” At mediation, for example, he can let opposing counsel know that he’s aware of the expert’s history and won’t be giving the testimony much weight or consideration, given the expert’s history.
In his own practice, Pedersen is vigilant when it comes to his own retained experts’ reports. “You want them to be prepared to testify by making sure you’ve done a thorough review and preparation to ensure they’re not stepping outside their bounds.”
“Even if it’s something small and the rest of the report has some merit, it’s enough to taint their evidence. If you’re at trial and your expert is thrown out, you have no way to prove your case. It’s important to think of these considerations from the beginning when selecting which experts to go with, and how each of them will play a part in proving the case.”
Ultimately, the recent decisions underscore the seriousness with which expert testimony is dealt with by the courts and highlight for all involved that it’s not to be taken lightly.
“When it comes down to how essential it is to the case, making sure that the expert is impartial and fulfilling their duty is of utmost importance and concern,” Pedersen says. “If it is an issue, it’s the role of the lawyers and the court to ensure it’s reeled in, remedied, and doesn’t taint the whole body of evidence.”
