Hired Gun Expert's 'Opinion' Deemed Invalid and Overturned on Appeal

July 05, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Bruff-Murphy v. Gunawardena, 2017 ONCA 502

Date of Decision: June 16, 2017
Heard Before: C.W. Hourigan J.A., P. Lauwers J.A., and M.L. Benotto J.A.”

COURT OF APPEAL FOR ONTARIO

On appeal from the judgment of Justice Paul B. Kane of the Superior Court of Justice, sitting with a jury, dated August 22, 2016.

The law regarding expert witnesses has evolved considerably over the last 20 years. 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 instructed trial judges that they serve as gatekeepers when it comes to the admissibility of expert opinion evidence. They must carefully scrutinize an expert witness’ 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 argue that trial fairness was breached to such an extent that a new trial is necessary. All their arguments focus on the impugned expert. The appeal was allowed and a new trial ordered as the trial judge failed to properly discharge his gatekeeper duty at the qualification stage. If he had, he would have concluded that the risks of permitting the expert to testify far outweighed any potential benefit from the proposed testimony.

The Appeal court held that the trial judge’s concerns about the expert’s testimony were substantially correct; the witness crossed the boundary of acceptable conduct and became a partisan advocate. The trial judge should have fulfilled his gatekeeper function; excluding in whole or in part the expert’s unacceptable testimony. Instead, the trial judge did nothing, resulting in trial fairness being irreparably compromised.

Liese Bruff-McArthur was rear ended by Mr. Gunawardena . She alleged she suffered multiple soft tissue damages in her neck, lower back and right shoulder. Ms. Bruff-McArthur also alleged that the accident 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 trial was what damages she suffered. Ms. Bruff-McArthur called several physicians who had either treated or examined her, two of whom were retained by insurers to conduct independent medical examinations, and the consensus 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 medical expert witnesses who had been retained by the defence to conduct independent medical examinations. The first, Dr. GM, 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 was Dr. MB, a psychiatrist. 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. MB 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. MB never put those alleged inconsistencies to Ms. Bruff-McArthur. Counsel sought an order that excluded the parts of Dr. MB’s report that did not meet the test in Browne v. Dunn (1893), 6 R. 67 (H.L.), and an order that Dr. MB not be permitted to testify regarding his views on her credibility.

Second, Ms. Bruff-McArthur argued that Dr. MB was biased. In support of this argument, counsel submitted that she should be permitted to cross-examine Dr. MB on findings made in another court case and two arbitrations to the effect that he was not an independent witness. The trial judge ruled, relying on R. v. Karaibrahimovic, 2002 ABCA 102, 2 Alta. L.R. (4th) 213, R. v. Ghorvei, (1999) 46 O.R. (3d) 63 (C.A.) and Desbiens v. Mordini, 2004 CanLII 41166 (Ont. S.C.) that Dr. MB could not be cross-examined on prior court rulings or arbitration decisions where his testimony was rejected or his objectivity as a witness had been questioned.

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

The trial judge then ruled that Dr. MB could not testify on certain sections of his report. The relevant sections were primarily where Dr. MB 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. MB testifying about Ms. Bluff-McArthur’s credibility.

Dr. MB testified that his methodology was not to review any of a subject’s medical records before meeting with them. Consistent with this methodology, after the examination of Ms. Bruff-McArthur, which took just over an hour, Dr. MB spent 10 to 12 hours reviewing her medical records, looking for discrepancies between what she told him in the meeting and what was in the records. These discrepancies formed the largest portion of his report.

Dr. MB testified that in his opinion Ms. Bruff-McArthur did not develop any psychiatric disorders or limitations because 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.

Dr. MB was the last witness to testify at trial. The trial Charged the jury. As part of his charge, the trial judge reviewed Dr. MB’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. MB’s testimony or his independence.

After the jury retired to consider their verdict, defence counsel brought a Threshold Motion, arguing that Ms. Bruff-McArthur did not met the threshold in s. 267.4(12) of the Insurance Act, R.S.O. 1990, c. I.8, of suffering a permanent serious impairment of an important physical, mental, or psychological function.

Following completion of the motion, the jury returned with a verdict assessing general damages at $23,500 and rejecting all other heads of damages, including special damages, future care costs and past and future income loss.

The  trial judge released his reasons on the Threshold Motion concluding that Ms. Bruff-McArthur’s claim for general damages met the threshold in the Insurance Act. In reaching that conclusion, the trial judge analyzed the evidence adduced at trial, including the evidence of Dr. MB. In his ruling, the trial judge stated that during the trial he permitted Dr. MB 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, [2015] 2 S.C.R. 182, at paras. 48-49.”

The trial judge’s analysis of Dr. MB’s evidence was highly critical and detailed. The trial judge found that Dr. MB 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. MB’s evidence as follows:

·    The vast majority of Dr. MB’s testimony to the jury amounted to nothing other than the following:
·    The plaintiff did not tell me the truth in my interview;
·    Here are all the instances I found in my 10 to 12 hour review of her medical records which prove that she did not tell me the truth;
·    If I as a psychiatrist cannot believe her; how can you?
·    The primary purpose of R. 4.1.01 is to prohibit and prevent such testimony in the guise of an expert. Dr. MB undertook and thereby promised to not do what he did in front of this jury.
·    I will not qualify witnesses as experts in the future whose reports present an approach similar

Issues on Appeal:

1.    Did the trial judge err in not permitting Ms. Bruff-McArthur to cross-examine Dr. MB on prior court and arbitral findings made against him?
2.    Did the trial judge err in qualifying Dr. MB as an expert and/or in not intervening or taking steps to exclude Dr. MB’s testimony?
3.    Did the respondent violate the rule in Browne v. Dunn?

D.           ANALYSIS

1.    Counsel for Ms. Bruff-McArthur sought to cross-examine Dr. MB on three previous comments regarding his testimony in other cases, indicating that he had:

·        Become an advocate for the party calling him as a witness, which is not the role of an expert: see Morrison v. Greig, [2007] O.J. No. 225 (S.C.), at paras. 47-48;
·        Appropriated the role of advocate of the insurer rather than an impartial witness, took a partisan approach and focused on inconsistencies in the information given by claimant, such that his credibility was seriously weakened and should be disregarded: see Gabremichael v. Zurich Insurance Co., [1999] O.F.S.C.I.D. No. 198, at paras. 31-33; and
·        Presented as a notably partisan witness: see Sohi v. ING Insurance Co. of Canada, [2004] O.F.S.C.D. No. 106, at para. 38.

Ms. Bruff-McArthur submits that the trial judge erred in denying her the right to cross-examine Dr. MB on these findings because the trial judge failed to draw a distinction between prior comments rejecting the evidence of the witness and prior findings of discreditable conduct, namely the failure of Dr. MB to abide by his oath as an expert.

The court of appeal did not accept this argument. The prior comments made about Dr. MB do not amount to a finding of discreditable conduct. Rather, they are the opinions of a judge and two arbitrators regarding the reliability of his testimony in particular cases.  In the present case, the comments of the judge and arbitrators about Dr. BM’s testimony in the previous cases would have been of no assistance to the jury without an understanding of their factual foundation. That necessary context would only have served to divert the jury from the task at hand and convert the trial into an inquiry regarding the reliability of Dr. MB’s testimony in the three other proceedings. Thus, the trial judge did not err in prohibiting this line of cross-examination.

2.    The Trial Judge’s Gatekeeper Role with Respect to Expert Opinion Evidence

Ms. Bruff-McArthur submits that the trial judge should have exercised his gatekeeper function to exclude Dr. MB from testifying because his methodology was unfair; he was biased; he was engaged in an exercise to destroy her credibility; and his prospective evidence would amount to a violation of the rule in Browne v. Dunn. In the alternative, she argues that the trial judge erred in not instructing the jury that they should disregard Dr. MB’s testimony.

On review of the law the Appeal court stated that finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan, the judge must still take concerns about the expert’s independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence.

In the present case, the trial judge cited White Burgess and all that needs to be established at that stage is whether the expert is “able and willing to carry out his or her primary duty to the court.” The trial judge concluded that Dr. MB met this rather low threshold requirement.

That was a discretionary decision, which is entitled to deference from this court: R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 248. Another judge might well have concluded that Dr. MB failed to meet even this low threshold test. I do not need to decide whether the trial judge erred on this point, however, because he clearly erred in principle in failing to proceed to the next step of the analysis – consideration of the cost-benefit analysis in Dr. MB’s testimony. The trial judge did not reference this second component of his discretionary gatekeeper role. To the contrary, he appears to have believed that he was obliged to qualify Dr. MB once he concluded that the witness met the initial Mohan threshold. There is, therefore, no decision to defer to and it falls to this court to conduct the second part of the analysis.

In the opinion of the Appeal Court on a proper balancing, the potential risks of admitting Dr. MB’s evidence far outweighed the potential benefit of the testimony. It was evident from a review of Dr. MB’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.

The first red flag was Dr. MB’s methodology. There is a real risk of unfairness in engaging in a hunt for discrepancies between what a plaintiff says during a short interview and what medical records dating back several years reveal. This unfairness is exacerbated when the expert denies the plaintiff the opportunity to explain the apparent discrepancies. As anyone with the slightest experience with litigation would attest to, oftentimes what appears to be an inconsistency in witness’s evidence is not an inconsistency at all. Oftentimes all that is required is a simple explanation to resolve what appears to be a conflict in what a witness said on two different occasions. Ms. Bruff-McArthur was not given an opportunity to offer such an explanation.

A related concern is that the vast bulk of the content in Dr. MB’s report was the recitation of perceived inconsistencies between what Ms. Bruff-McArthur said in the independent medical examination and what the medical records revealed. In conducting that analysis, Dr. MB was not bringing to bear any medical expertise. This was work that is routinely done by trial lawyers and law students or clerks in preparation for a cross-examination. Thus, the benefit of the evidence was very low, while the potential mischief was very high, especially given that none of these inconsistencies were put to Ms. Bruff-McArthur.

It was also clear from the report that Dr. MB was coming dangerously close to usurping the role of the jury in assessing Ms. Bruff-McArthur’s credibility particularly in the “Summary and Conclusions” section of his report, where he states, “lack of reliability, credibility and validity are factors in this case.”

Next, the whole tone of the report was a reliable predictor of Dr. MB’s testimony. He goes out of his way to make points that are meant to damage Ms. Bruff-McArthur’s case. For example, he opines on the views of several physicians who examined Ms. Bruff-McArthur, concluding that she misled them. Dr. MB speculates that one of her therapists may have been improperly holding herself out as a qualified psychologist. He criticizes a psychiatrist who treated Ms. Bruff-McArthur, Dr. Arora, because they discussed “personal family things, such as her daughters’ potty training and her son’s school problems” when “psychotherapy was requested and paid solely in relation to treating accident related claims.” Dr. MB notes that Ms. Bruff-McArthur and Dr. Arora discussed the notions of karma and reincarnation. He chastises Dr. Arora for introducing personal religious beliefs in a therapy session. The Appeal court noted that there is no evidence that these topics reflect Dr. Arora’s personal beliefs. Dr. MB goes beyond a mere lack of independence and appears to have adopted the role of advocate for the defence. Given the paucity of psychiatric analysis in the report versus the high degree of potential prejudice in wrongly swaying the jury, a cost-benefit analysis would have invariably lead to the conclusion that Dr. MB should have been excluded from testifying.

The trial judge, he attempted to ameliorate these concerns by specifically instructing the witness not to testify regarding certain issues, such as his criticism of other doctors. However, as the trial judge essentially acknowledged in his Threshold Motion ruling, had he undertaken the cost-benefit analysis he would not have permitted Dr. MB to testify.

The trial judge permitted Dr. MB to testify and determined that Dr. MB crossed the line of acceptable expert evidence. To analyze his response to this situation, it is first necessary to consider whether the trial judge’s concerns regarding Dr. MB’s testimony were well founded. If they were, the next issue is what the trial judge should have done in the circumstances.

Did Dr. MB’s Testimony Indicate Lack of Impartiality? The Appeal court had the opportunity to consider in detail Dr. MB’s evidence and concurred with the trial judge that it is most troubling. For present purposes, it is unnecessary to recount his testimony in full. The methodology Dr. MB used, and the scientific testing were found inadequate and unfairly interpreted.

The appeal court concluded that the tests were deliberately interpreted to fit a theory of mendacity. Unless she got every question on every test correct, she was inconsistent and, in Dr. MB’s opinion, inconsistency equated to an untruthful subject.

A third concern relates to a subtle point that demonstrates Dr. MB’s fundamental misconception of his role. He questioned Ms. Bruff-McArthur regarding her physical limitations. It is, of course, perfectly appropriate for a psychiatrist conducting an independent medical examination to ask questions about a subject’s physical injuries and resultant limitations. That information could provide useful context for the examination. However, Dr. MB was quite open about the fact that he asked the questions for an entirely different purpose. He testified that he asked about physical limitations so that he could compare those answers to any future surveillance evidence he may receive. This is consistent with how Dr. MB regarded the purpose of his review of the medical records. There is a troubling pattern that suggests that he understands his primary role to be to expose inconsistencies and not to provide a truly independent assessment of Ms. Bruff-McArthur’s psychiatric condition.

Fourth, when Dr. MB was cross-examined about his emphasis on perceived inconsistencies, he denied ignoring those parts of the medial records that did not fit his diagnosis. He explained their absence from his report on the basis that “you can’t put everything in your report.” Later in his cross-examination, Dr. MB stated, “I’m interested in the things that don’t corroborate, not the things that do corroborate.” Again, this testimony makes plain Dr. MB’s lack of awareness of the need to be impartial as an expert witness.

The appeal court ruled that in the present case the trial judge appears to have assumed that, once Dr. MB was qualified as an expert, his gatekeeper role was at an end. The trial judge erred in law in reaching that conclusion.

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