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Court of Appeal case reinforces protections against biased expert testimony

  • October 10, 2017
  • by Will Davidson LLP
  • expert testimony, expert witness, Ontario personal injury lawyers, personal injury, Personal Injury Lawyer, personal injury lawyers, Will Davidson LLP,

Expert witness testimony can have a huge impact on personal injury trials. Members of a jury, after all, are unlikely to be proficient in the expert’s field, and as such must accept the witness’s testimony as accurate. Unfortunately, many Ontario personal injury lawyers have encountered biased or unfair expert witnesses at some point in their careers. Experts who deliver testimony tailored to the defense’s arguments are known as “hired gun” witnesses.

In 1994, the Supreme Court of Canada case R. v. Mohan laid out rules for the admissibility of expert witness testimony in an attempt to rein in hired gun evidence. In the decision, Justice John Sopinka wrote that expert evidence must be relevant; necessary to assist the trier of fact; must not be exclusionary; and must be delivered by a qualified individual.

White Burgess

More than 20 years later, in April 2015, the Supreme Court instituted additional measures to ensure the fairness of expert testimony, including emphasizing the trial judge’s role as a “gatekeeper.” Justice Thomas Cromwell, who wrote the Supreme Court’s decision in White Burgess Langille Inman v. Abbott and Haliburton Co., stated that an expert witness’s first duty is to be fair, objective, and non-partisan, and that trial judges must ensure that duty is met.

This year, Bruff-Murphy v. Gunawardena, an Ontario Court of Appeal decision, solidified ‘the role and obligations of the trial judge to ensure that the expert witness does not jeopardize a fair trial,’ according to an August 2017 article from Lexology. Ontario personal injury lawyers are likely to be encouraged by the case’s eventual resolution.

Bruff-Murphy v. Gunawardena

The plaintiff in the case, Liese Bruff-McArthur, suffered soft tissue damage in her neck, lower back, and right shoulder when she was struck from behind while sitting in her stopped car. The defendant admitted fault for the accident, leaving only damages to be decided at trial.

The defence called two expert witnesses, including a psychiatrist. Counsel for the plaintiff asked the judge to deny the psychiatrist’s testimony on the basis that it was biased; the judge qualified the expert and allowed the evidence to be presented.

During the trial, ‘it became obvious that the psychiatrist had adopted the role of advocate, and lacked independence,’ Lexology reports. The judge did not intervene in the testimony or warn the jury that it should be excluded. The jury eventually awarded Bruff-McArthur $23,500 for general damages, but denied compensation for past and future loss of income, future care, and special damages.

Bruff-McArthur’s team of Ontario personal injury lawyers appealed the decision, and the Court of Appeal ruled that the trial judge failed to effectively determine whether the probative value of the psychiatrist’s testimony outweighed its potential prejudicial impact. The court sided with the plaintiff, and ordered a new trial. The decision reinforces the rules set out by both R. v. Mohan and White Burgess, and is reason for optimism among injury victims and injury lawyers.

If you or a member of your family has suffered an injury at the hands of another individual, contact the Ontario personal injury lawyers at Will Davidson LLP to arrange a free consultation and find out how we can help.

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