Taking out the hired gun: Recent jurisprudence on expert independence

By Andrea Bolieiro – Pape Barristers

The Nova Scotia Court of Appeal recently described the “uncomfortable seat” occupied by expert witnesses in the courtroom:

“On one hand, there are there to assist the court by offering advice in areas where special knowledge is required…On the other hand, the court typically does not select them. Instead, they are retained by and testify on behalf of one of the combatants.” (Abbott and Haliburton Company v. WBLI Chartered Accountants, 2013 NSCA 66, at para. 1)

Experts are paid to provide their opinions. It comes as no surprise, then, that they routinely face attacks on their independence.

A successful attack on an expert’s independence, however, must do more than show a mere “alignment of interest” between the expert and the party who retained him or her. The attack must show that the expert’s opinion has been influenced by “the exigencies of litigation”, and is not the product of an independent analysis.

How does one prove that an expert has succumbed to the “exigencies of litigation”? And what is the remedy if he or she has? Ontario courts have recently offered some guidance on these issues, and may have also broadened the circumstances under which an expert’s evidence can be excluded in its entirety.

The warning signs

How can counsel prove that an opposing expert is not independent? The first and primary source of evidence for most counsel is the report itself.

Ask yourself the following questions about the expert’s report:

  • Is it repetitious and argumentative in tone?
  • Does it exaggerate or speculate?
  • Does it go beyond the areas in which the expert is qualified?
  • Does it address factual issues or attempt to the weigh evidence?
  • Does it treat the evidence selectively or inaccurately?
  • Does it opine on matters of law or offer legal conclusions?

(See Alfano v. Piersanti, 2012 ONCA 297, paras 115-116; see also Gould v. Western Coal Corporation, 2012, ONCS 5184, at paras. 82-91)

Reports exhibiting these characteristics indicate that expert has likely tiptoed (or bulldozed) into advocate territory.

Some of these characteristics, however, may be difficult to extricate from the expert’s opinion itself. Experts often select and analyze evidence to reach their conclusions. Their conclusions often directly relate to the legal issues. As a result, the party defending an attack on the expert’s independence will have to point to the expert’s methodology or the content of his or her opinion

that demonstrates the expert’s independence analysis, and characterize any fact-treating or legal commentary as part and parcel of that independent analysis.

If counsel does successfully raise questions regarding the expert’s independence, the next question is the proper remedy.

Discounting or excluding the report

Judges often prefer to deal with tainted evidence by applying a “discount”; i.e, by minimizing the weight afforded to that expert’s evidence. However, recent Ontario cases suggest that judges are increasingly willing to exclude the expert’s evidence in its entirety.

The Court of Appeal in Alfano v. Piersanti stated that a court has discretion to exclude an expert’s evidence where that evidence “is so tainted by bias or partiality as to render it of minimal or no assistance” (at para. 111). In other words, where the expert has strayed so far afield of her role as an expert as to render her evidence unhelpful, the court can exclude that evidence. Notably, the court does not require evidence of actual bias to exclude the evidence.

For example, in Gould v. Western Coal, the court found that the accusation of bias against the expert was “utterly unfounded”. It nevertheless excluded all of that expert’s evidence, on the basis that 1) the expert opined on issues beyond his expertise; 2) the expert purported to weigh evidence, evaluate credibility and make findings of fact; and 3) the expert engaged in advocacy, making exaggerated comments and engaging in speculation (paras 81-95). This decision demonstrates an increased willingness to exclude an expert’s evidence.

These recent decisions provide some guidance on how courts can identify non-independent experts. They also appear to have broadened the circumstances justifying total exclusion of an expert’s evidence.