Experts Under The Microscope: Bias And Junk Science In Canada's Courtrooms

Over the past year or so, a series of Canadian decisions have caused lawyers, judges and legal commentators to refocus on the issue of expert evidence in litigation. From the interaction of expert witnesses with the people who pay their fees, to concerns with the quality and usefulness of the evidence they provide, our system is getting an overhaul.

This discussion will look at efforts to ensure that only helpful expert evidence finds its way into litigation. This is not intended to be a thorough review of the law of expert evidence. Instead, its goal is to provide claims handlers with updated suggestions for considering expert reports when presented by claimants and their lawyers. However, since claims are ultimately disposed of (either by settlement or trial) with reference to the proof being offered and how it might play out in a courtroom, an understanding of some of these recent developments is essential to effective claims handling. Knowing when to raise questions about the quality of expert opinions being put forward by the other side can play a major role in the proper assessment and reserving of a given claim. Strategically communicated, your response to the claimant's expert report can also have a profound effect upon a successful settlement or denial of a claim.

The Basics of Expert Evidence

The healthy skepticism that gets claims handlers and their defence counsel asking the right questions is a product of what has been described as the court's "gatekeeping" role when considering expert evidence. A few basics will serve as a springboard to this part of the discussion.

First, the core purpose of expert evidence in litigation is to help judges and juries make sense of aspects of our world that are highly complex when those things are part of what has given rise to a claim. An obvious example is a bodily injury. A simple broken leg can become highly complex when we need to know how it is to be treated, if surgery is required and its long term effects in terms of pain, gait abnormalities and other forms of disability. These are not matters within common knowledge and clearly require the assistance of an expert in medicine (sometimes several) to sort out. The courts have embraced the value of expert witnesses as providers of necessary assistance in understanding scientifically or technologically complex fact situations.

Next, fundamental to the notion of using expert witnesses, is that they are to assist the court. In order to do so...