Experts at Trial Must Be Independent, Fair, Objective and Non-Partisan - Bruff-Murphy v. Gunawardena, 2017 ONCA 502 (CanLII)

March 16, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Bruff-Murphy v. Gunawardena, 2017 ONCA 502 (CanLII)

COURT OF APPEAL

Date of Decision: June 6, 2017
Heard Before: Hourigan J.A.

INTRODUCTION

The law regarding expert witnesses has evolved considerably over the last 20 years. Gone are the days when an expert served as a hired gun or advocate for the party that retained her. Today, expert witnesses are required to be independent, and their function is to provide the trier of fact with expert opinion evidence that is fair, objective and non-partisan.

The role of the trial judge in relation to expert witnesses has also evolved. Appellate courts have repeatedly instructed trial judges that they serve as gatekeepers when it comes to the admissibility of expert opinion evidence. They are required to carefully scrutinize, among other things, an expert witness’s training and professional experience, along with the necessity of their testimony in assisting the trier of fact, before the expert is qualified to give evidence in our courts. This gatekeeper role is especially important in cases, such as this one, where there is a jury who may inappropriately defer to the expert’s opinion rather than evaluate the expert evidence on their own.

In the present case, the trial judge qualified an expert to testify on behalf of the defence despite some very serious reservations about the expert’s methodology and independence. It became apparent to the trial judge during the expert’s testimony that he crossed the line from an objective witness to an advocate for the defence. Despite his concerns, the trial judge did nothing to exclude the opinion evidence or alert the jury about the problems with the expert’s testimony.

On appeal, the appellants advance several arguments to the effect that trial fairness was breached, such that a new trial is necessitated. All of these arguments focus on the impugned expert. In my view, the appeal must be allowed, and a new trial ordered. I reach this conclusion because the trial judge failed to properly discharge his gatekeeper duty at the qualification stage. Had he done so, he would have concluded that the risks of permitting the expert to testify far outweighed any potential benefit from the proposed testimony. In addition, the trial judge’s concerns about the expert’s testimony were substantially correct; the witness crossed the boundary of acceptable conduct and descended into the fray as a partisan advocate. In these circumstances, the trial judge was required to fulfill his ongoing gatekeeper function and exclude in whole or in part the expert’s unacceptable testimony. Instead, the trial judge did nothing, resulting in trial fairness being irreparably compromised.

BACKGROUND FACTS

Liese Bruff-McArthur was hit from behind by the respondent while stopped in her car. She suffered multiple soft tissue damages in her neck, lower back and right shoulder, and has left her in an apparent chronic pain condition with attendant anxiety and depression. She says that she is unable to work and that her enjoyment of life has been substantially diminished.

Ms. Bruff-McArthur commenced an action against the respondent, who admitted liability. The sole issue in the 23-day jury trial was what damages, if any, she suffered. In support of her case, Ms. Bruff-McArthur called a number of physicians who had either treated or examined her, two of whom were retained by insurers to conduct independent medical examinations. The consensus among these witnesses was that she suffered in the manner complained of and that the cause of her suffering was the motor vehicle accident.

The defence called two witnesses, both of them medical expert witnesses who had been retained by the defence to conduct independent medical examinations. The first, an orthopedic specialist, testified that he found nothing wrong with Ms. Bruff-McArthur from a musculosketal standpoint. This conclusion was not surprising given that she was complaining of soft tissue injuries.

The other defence expert witness Dr. B. Counsel for Ms. Bruff-McArthur objected to his testifying on two grounds.

First, she argued that his report was essentially an attack on Ms. Bruff-McArthur’s credibility. Counsel pointed to numerous instances in the report where Dr. B commented on discrepancies between the information Ms. Bruff-McArthur provided in her interview with him and what he later found in her medical records. Dr. B never put those alleged inconsistencies to Ms. Bruff-McArthur. Counsel sought an order that excluded the parts of Dr. B’s report that did not meet the test in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.), and an order that Dr. B not be permitted to testify regarding his views on her credibility.

Second, Ms. Bruff-McArthur argued Dr. B was biased.

The trial judge then put to counsel for Ms. Bruff-McArthur that there remained the issue of whether Dr. B had sufficient professional objectivity to provide independent evidence and he asked her if she wished to cross-examine Dr. B on this issue as part of a voir dire. Counsel declined that offer and elected instead to cross-examine Dr. B on the issue as part of her cross-examination in the trial proper.

The trial judge then proceeded to rule that Dr. B could not testify on certain sections of his report. The relevant sections were primarily where Dr. B was critical of the reliability of the conclusions reached by other doctors examining Ms. Bruff-McArthur. The trial judge also made clear that he did not want Dr. B testifying about Ms. Bluff-McArthur’s credibility.

Dr. B testified that in his opinion: Ms. Bruff-McArthur did not develop any psychiatric disorders or limitations as a result of the accident; required no psychotherapy or psychotropic medication in relation to the accident; her pre-accident psychiatric profile was not exacerbated by the accident; and she did not require housekeeping or attendant care as a result of any psychiatric condition.

The Verdict

Dr. B was the last witness to testify at trial. After closing submissions, the trial judge gave his charge to the jury. The charge was previously subject to a pre-charge conference and it was provided to the parties in advance of being presented to the juries. No objection was made to the charge and no special instruction regarding Dr. B’s testimony was requested.

As part of his charge, the trial judge reviewed very briefly Dr. B’s testimony. He did not instruct the jury regarding the duty of expert witnesses. Nor did he raise any concerns with respect to the substance of Dr. B’s testimony or his independence.

In his ruling, the trial judge stated at para. 58 that during the trial he permitted Dr. B to testify because of the “[v]ery high threshold before a court may exclude expert testimony for bias established by the Supreme Court in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (CanLII), [2015] 2 S.C.R. 182, at paras. 48-49.”  The trial judge’s analysis of Dr. B’s evidence was highly critical and included the following observations:

•        The vast portion of his testimony in chief consisted of Dr. B telling the jury about prior medical notations and how they contradict what Ms. Bruff-McArthur allegedly told him in his interview (para. 68).

•        The only semi-psychiatric element of Dr. B’s report was entitled “Mental Status Examination,” which consumed one half a page of the 20 page report (para. 69).

•        In order to be fair and objective, Dr. B should have asked the plaintiff why her verbal reporting of her prior medical condition was so vastly different from her prior medical records. Dr. B could not do that because his methodology in conducting independent medical examinations was to not read such medical records before the interview (para. 70).

•        Dr. B testified that he discarded any notes he may have made during his interview of Ms. Bruff-McArthur as to what she allegedly told him. His only record of her comments was contained in his report dictated after he interviewed Ms. Bruff-McArthur and after his subsequent lengthy review of her medical records (para. 73).

•        Dr. B was making up evidence as he testified to support his conclusions adverse to Ms. Bruff-McArthur (para. 108).

•        The vast majority of Dr. B’s report and testimony in chief was not of a psychiatric nature but was presented under the guise of expert medical testimony and the common presumption that a member of the medical profession will be objective and tell the truth (para. 122).

The trial judge found that Dr. B was not a credible witness and did not honour his obligation and written undertaking to be fair, objective and non-partisan pursuant to r. 4.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. He summarized Dr. B’s evidence as follows, at paras. 123-125:

ISSUES

This appeal raises the following issues:

•        Did the trial judge err in not permitting Ms. Bruff-McArthur to cross-examine Dr. B on prior court and arbitral findings made against him?

•        Did the trial judge err in qualifying Dr. B as an expert and/or in not intervening or taking steps to exclude Dr. B’s testimony?

•        Did the respondent violate the rule in Browne v. Dunn?

As I will discuss in the analysis section of my reasons, I have concluded that the trial judge did not err in ruling that Dr. B could not be cross-examined regarding prior court and arbitral findings made against him. However, the trial judge did err in permitting Dr. B to testify and in failing to exclude in whole or in part Dr. B’s testimony and, consequently, a new trial is required.

ANALYSIS

In my view, on a proper balancing, the potential risks of admitting Dr. B’s evidence far outweighed the potential benefit of the testimony. It was evident from a review of Dr. B’s report that there was a high probability that he would prove to be a troublesome expert witness, one who was intent on advocating for the defence and unwilling to properly fulfill his duties to the court.

It was also clear from the report that Dr. B was coming dangerously close to usurping the role of the jury in assessing Ms. Bruff-McArthur’s credibility. In the “Summary and Conclusions” section of his report he opines:

It is my opinion that if Ms. Bruff-McArthur was being forthright, this pattern of discrepancies and inconsistencies should not exist. I am therefore of the opinion that Ms. Bruff-McArthur has not been forthright with respect to her accident related claims and her provided medical and psychological history, and that the history which she has been providing over time since the accident cannot be relied upon. It is evident that Ms. Bruff-McArthur has serious credibility issues regarding her accident related claims. In the penultimate paragraph of his report, he states: “lack of reliability, credibility and validity are factors in this case.”

It is impossible to gauge with any certainty the impact of Dr. B’s testimony. The fact that he was one of only two witnesses to testify for the defence suggests that his testimony may well have been an important factor in the jury’s analysis of the case. In any event, a focus on the inability to measure the precise prejudice caused by the testimony misses the point entirely, which is that there has been a miscarriage of justice in this case. This court has a responsibility to protect the integrity of the justice system. This is not a “no harm, no foul” situation.  No doubt, another trial will be costly and time consuming, but it is necessary because the defence proffered the evidence of a wholly unsuitable expert witness.

DISPOSITION

I would grant the appeal, set aside the judgment below, and order a new trial. I would award the appellants their costs of the appeal in the amount of $22,000, inclusive of fees, disbursements and applicable taxes. The parties may make written submissions on the issue of the costs of the first trial.

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