Examining the Experts

For years, courts have expressed concern about the trend of “hired gun” expert witnesses retained by plaintiff or defendant lawyers. Some courts are now applying a higher level of judicial scrutiny to the role of expert witnesses, particularly in cases involving medical diagnoses. Claims examiners and insurers need to be cautious when retaining experts and make sure that their processes will stand up to review.

Although only a few claims reach the courtroom, adjusters and insurers must anticipate that any file may be subject to judicial review. At court, admissible evidence is used to inform a judge – and sometimes a jury – about the true facts of a case. Judges and juries are not specialists in technical matters such as medical or psychiatric conditions, so experts are relied upon to clarify the issues.

Basic principles

In any claim situation, an expert should be reputable, stable and properly qualified in a relevant field to provide an analysis or opinion regarding a point in question. If a case is litigated, the credentials of experts will be scrutinized, so the experts selected should be ones whose credentials are relevant to the claims file under review. The organization an expert works for may also be assessed as to its stability and reliability in its field of expertise and how it values training and development.

To avoid any possible conflict of interest, a person who is hired to do work on an insurance claim should not have any stake in the claim or in any property which is the subject of the investigation. In principle, the professional should not make any profit other than fees or salary; and the opinion provided should be impartial.

Judges and juries are sometimes faced with divergent and conflicting assessments, particularly in cases involving health-related claims. The adversarial nature of the legal system, combined with the fact that experts are retained and paid by the respective parties, has arguably contributed to a culture of “opinions for sale” in some quarters.

Recently, however, signs of a shift have been emerging.

New emphasis

In Ontario, the Rules of Civil Procedure were changed in January 2010 to include revamped duties of experts. These revised rules introduced several enhanced requirements:
•    Experts must sign an explicit acknowledgement of their duty to the court and must attach it to their reports. This acknowledgement states that experts are expected to provide evidence that is related only to matters within their area of expertise and “to provide opinion evidence that is fair, objective and non-partisan.” The form emphasizes that the expert’s duty to the court “prevails over any obligation which I may owe to any party by whom or on whose behalf I am engaged.”
•    Every expert report must include certain standard items, such as the expert’s area of expertise, qualifications, employment and educational experience.
•    The expert must disclose any background research, documentation and “foundational material” that led to the opinion given in the report.
•    The expert must also disclose any instructions about the proceeding that they received from lawyers or clients. All instructions and correspondence between lawyers and expert witnesses are producible before or at trial. In other words, any attempt to influence or conceal the opinion of an expert witness – whether by counsel or by a party, including an insurer – can be revealed at court, potentially jeopardizing the case.
Legal decisions issued since the introduction of the revised rules suggests that courts have begun showing an increased awareness of possible bias and advocacy in expert witness reports and testimony. And although the new rules currently apply specifically to cases litigated in Ontario, they address concerns that have been felt in other jurisdictions as well.

Retention routines

Insurers, claims professionals and counsel need to be aware of this potential for a finding of bias and be diligent when selecting experts. In any jurisdiction, factors to consider when retaining a medical expert include the following:
•    Identify the specific purpose for which expert advice is needed – for example, to rebut the plaintiff’s expert, establish lack of causation, etc.
•    Review the professional standing, reputation, technical expertise and past courtroom experience of an expert before making a selection. Evidence of a professional disciplinary action or an unfavourable comment by a judge in a past case could be signs of trouble to come.
•    Evaluate timing considerations such as the sequencing of experts and reports.
•    Instruct experts clearly and impartially about their role and responsibilities.

Educating the experts

That last step in retaining an expert is an important one: educating the expert about their role and responsibilities. Simply gathering up the expert’s signed procedural paperwork is not enough; it’s critical to ensure that the professional understands his or her duty and the implications of acting as an expert witness under the rules that apply in the jurisdiction.
Experts also need to be given adequate time to educate themselves about the case. Providing lots of time and an organized case file can help reduce costs and improve the likelihood of getting a balanced and comprehensive report.
While some parties may be tempted to assume that the old rules of finding the right “advocate” for personal injury cases still apply, proactive adjusters and insurers will benefit from reviewing their processes and keeping them aligned with evolving judicial expectations.

This article is based on excerpts from ADVANTAGE Monthly, a series of topical papers on emerging trends and issues provided to members of the CIP Society. The Chartered Insurance Professionals’ (CIP) Society is the professional organization representing more than 16,000 graduates of the Insurance Institute’s Fellow Chartered Insurance Professional (FCIP) and Chartered Insurance Professional (CIP) programs.