In any personal injury file, both the plaintiff and defence will hire experts to help them prove various aspects of their case. Different experts can be hired to comment on, for example, the severity and likely prognosis of the plaintiff’s injuries, how those injuries impact the plaintiff’s ability to work and take care of themselves, and how much money the plaintiff is likely to lose over their lifetime because of the injuries. There is nothing wrong with this, of course, and it happens in almost every case. In fact, without an expert(s) to comment on these various areas, a plaintiff’s case will not be very successful. For the defendant (or, really, the insurance company that pays for their defence and any judgment that might be awarded against them by a jury), experts are required to counter, if possible, any expert opinion hired by the plaintiff.
The credibility of the expert is, therefore, of utmost importance. After all, in a so-called “battle of the experts”, you would prefer it if your expert was more credible and believable before the jury than that of the other party. In fact, the law requires that experts remain completely impartial and recognize in writing that their obligation is to the Court (and not the party hiring them) to provide an independent and unbiased opinion.
In practice, experts are often hired repeatedly by the same party and often fail in their obligation to be independent and impartial. Concerns arise when a particular expert starts tailoring their evidence to fit the theory of the case belonging to the party that hires them. In other words, they become advocates for the party hiring them, as opposed to independent and impartial witnesses whose only obligation is to help the judge and jury understand the issues.
Furthermore, because expert evidence can be very compelling in the eyes of a jury, the dangers arising from the evidence of an “advocate” or “hired gun” expert are compounded if the opposite party cannot properly show to the judge or jury that the expert is just that, a hired gun.
In this vein, you would think that one very persuasive way to show the biases of an expert would be to cross-examine him/her on past court cases where the expert was found to be un-credible because he/she was too biased or partial in favour of the party that hired them.
Unfortunately, and surprisingly to many, the laws of evidence, as they presently stand, prevent this type of cross-examination. In other words, you cannot cross-examine an expert on the fact that he/she was either disbelieved or found to be un-credible by another court.
So – what is a plaintiff to do when the insurance company representing the Defendant hires an expert they feel is more of an advocate than an independent and unbiased witness?
In the recent case of Daggitt v. Campbell, in advance of trial, the defendant wanted to call a particular expert witness (a psychiatrist) and brought a motion before the Court to appoint that witness to do an independent examination of the plaintiff. However, the Plaintiff was able to argue that the expert proposed by the defendant should not be appointed because of the nature of his expertise (he was a psychiatrist when the plaintiff’s expert was a psychologist). Further, the motion judge had trouble with the expert’s history. Numerous previous courts had commented negatively on the proposed’s expert’s credibility. The motions judge expressed reservations that the expert would therefore be able to testify at trial in accordance with his obligations to the court. This is a helpful (and original) decision which, in the future, could prove very useful in weeding out the “hired guns”.