Silencing Hired Guns

For years, courts have expressed concern about the trend of ‘hired gun’ expert witnesses retained by plaintiff or defendant lawyers. Given that trial judges are not specialists in technical matters such as medical or psychiatric conditions, these experts are relied upon to clarify the issue at hand.

Yet the adversarial approach of the legal system, combined with the proliferation of so-called “opinions for sale,” often means judges – and in some cases, juries – are faced with divergent and conflicting assessments. In many cases, the issue involves insurance and health-related claims.

“I think insurers need to be a lot more cautious and careful in working with their counsel on retaining experts,” says Gerry George, a lawyer with Samis & Company. “They need to demonstrate that their processes meet this increased level of judicial scrutiny.”

The Ontario Rules of Civil Procedure were changed in January 2010. Among other things, the changes include revamped duties of experts under Rule 53.03. In particular, the amended rules require experts to acknowledge their duty to “to provide opinion evidence that is fair, objective and non-partisan.” This acknowledgement of expert duty, known as Form 53, also states experts are expected to provide evidence related only to matters within their area of expertise and to provide “such additional assistance as the court many reasonably require.”

Experts must now sign the Form 53 acknowledgement and attach it to their reports. As a further measure to ensure impartiality, the form emphasizes 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.”

Additionally, the new rules set out a long checklist of items that should be included in every expert report, such as the expert’s area of expertise, qualifications, employment and educational experience. These also require the expert to disclose any instructions provided by lawyers or clients in relation to the proceeding, as well as background research, documentation and “foundational material” that led to the opinion.

“The fundamental change is that the expert now has to acknowledge that he or she is there to assist the court, not to be an advocate,” says Gary Srebrolow, a lawyer with Blaney McMurtry who is the leader of the firm’s health law group.

“The changes to the expert rules are best described as a warning shot to experts making a handsome living acting as ‘hired guns,'” notes Darcy Merkur, a partner with Thomson Rogers. “In time, courts may highlight these new delineated duties when criticizing experts that are seen as advocates, causing a more profound impact on the expert’s credibility in other proceedings.”

Emerging Case Law

Case law and judicial commentary have already emerged in the wake of the new expert rules. In Beasley and Scott v. Barrand (2010), an insurer sought to have three medical assessment reports admitted pursuant to Rule 53.03. The plaintiff was injured in a motor vehicle accident in 2002 involving a car and a motorcycle. The three medical doctors authoring the reports signed the Form 53 acknowledgement of expert’s duty.

Ontario Superior Court Justice Patrick Moore denied the application to file the medical reports, finding that the acknowledgement forms “are seriously flawed.”

“It appears clear to me that the doctors did not take time to read and reflect upon the content of the form before signing it and that affords me no comfort to believe that these experts understand their duty to assist the court with opinion evidence that is fair, objective, non-partisan and within the area of expertise of each doctor,” Moore found.

George notes the Beasley finding could render independent medical examinations (IMEs) far less relevant to court proceedings. “This is an important decision in that IMEs, which insurers have tended to rely on in the past, are not as much of an option anymore,” George says. “It will be hard for these reports to stand up to scrutiny and get around conflict or bias issues.”

Indeed, it is more likely that IME assessors retained in accident benefits or disability claims will be limited to giving fact evidence only, not opinion-based evidence.

Justice Moore has made several rulings on the appropriate roles of experts in the courts. In Frazer v. Haukioja (2008), he seemed to anticipate the new code of expert duties in his decision: “Whatever role the expert may have undertaken during the course of the litigation in assisting counsel to a fuller appreciation of the facts in dispute and the inferences that might be drawn from them, the expert must set aside that role upon entering the witness box at trial. From the witness box the expert speaks only to assist the court. . . Independence and impartiality; the court expects nothing more and it will accept nothing less.”

In a case involving insurance and medical examinations, Bakalenikov v. Semkiw (2010), another Ontario judge commented on the new duty of experts. “Each court expects and relies upon frank and unbiased opinions from its experts,” noted Master D.E. Short. “This is a major sea change, which requires practical improvements to past opaque processes. How are long-time plaintiffs’ and defendants’ experts to be ‘trusted’ to change their stripes? At the initial stages, skilled, licensed professionals clearly must be taken at their word that on principle they take their Form 53 Undertaking to Court seriously. They are clearly promising to bring a new, transparent and objective mind set to the drafting of their reports and to their subsequent testimony.

In a medical malpractice case, Gutbir v. University Health Network (2010), Ontario Superior Court Justice Darla Wilson ruled a treating physician was not permitted to be an expert witness on the cause of a newborn infant’s brain injury and disability. She questioned the impartiality of a neonatologist to testify about his treatment in the case at hand. “[T]o the extent that the physician has any personal interest in the outcome of the case or lacks the objectivity and independence essential to the medical expert, this may adversely affect the weight to be given to the expert testimony,” she wrote.

Finding Expert Witnesses

As articulated in case law, courts are showing an increased awareness of the possibility of bias and advocacy when it comes to expert witness reports and testimony. Lawyers say insurance companies need to recognize this potential for a finding of bias and put more time into finding the right experts for trial.

One key strategy is to look beyond the usual array of experts known by counsel – and judges. “I think we are moving away from the typical ‘bank’ of experts,” says George. “There are, for example, lots of medical examination facilities that insurers have relied on in the past. But they have to get away from that, by looking at referrals from other sources such as medical colleges, university networks and colleagues. It can be more difficult to find these experts, but it pays off, especially in more complex cases.”

Insurers also need to scrutinize the historical tendencies of experts carefully, well before trial and even pre-trial discovery. “It is important to look for skeletons in the closet,” notes Srebrolow. “This information can come from various sources, including previous decisions and case law, unfavourable comments by a judge, professional discipline or action by a health college or general medical reputation.”

One consequence of the new rules is a greater reluctance on the part of some medical professionals to testify as experts or prepare reports, George observes. “Some are finding the process too complicated and risky for them,” he says. “There are a number of people who have simply walked away.”

Instructing Expert Witnesses

Another new element of the amended rules for expert duties is the requirement that all instructions a
nd correspondence between lawyers and expert witnesses will be producible before or at trial. This means any attempt to influence or conceal the opinions of expert witnesses can be brought into the courtroom, much to the potential detriment of a plaintiff’s or defendant’s case. Overt attempts to guide an expert – either by counsel or insurer – can backfire, according to sources.

“You have to be careful and give the expert proper instructions,” says Srebrolow. “You can’t guide them, but you have to set out what you want them to do. The best approach is to give them the information and have them tell you what they think. I think lawyers have to be as hands-off as possible and adopt a ‘less is more’ approach. Assume that all your instructions and correspondence with the expert will be disclosed in court.”

“It is a delicate balancing act,” adds George. “You have to be consistent and standardized with instruction letters and ensure as much neutrality as possible.”

Srebrolow says the old way of retaining experts often involved multiple drafts, letters and correspondence back and forth between experts and counsel or clients and revisions. “Some lawyers might still be doing that,” he notes, “but if they get caught, it will come out in court.”

Giving experts lots of time and an organized file on the case can help streamline the process, reduce costs and improve the odds of getting a balanced and comprehensive report, according to sources.

“It is important to bring experts up to speed on a certain file,” notes Srebrolow. “This means giving them records in an organized, indexed manner. You have to prepare the material as far in advance as possible. Lawyers may be working on the case for two years, but this is the first time the expert has seen the file.”

Advance preparation is critical, given an amended time period for disclosing expert witness reports under Rule 53.03. In the past, expert reports had to be served at least 90 days before trial. The new rules require lawyers to provide the reports 90 days before the
pre-trial conference, with responding reports to be served at least 60 days before the pre-trial conference.

Another key element of the new expert duties lies in educating the experts about their new roles and responsibilities. As Beasley demonstrated, it is not enough simply to gather signed forms acknowledging expert duty. Professionals must understand their duty and the implications of acting as an expert witness under the new rules.

Adapting to the New Landscape

The changes to expert witness duties under Rule 53.03 may have fallen under the radar screen for some insurance companies and claims examiners, who often presume the old rules of finding the right ‘advocate’ for personal injury cases still apply, according to sources. However, it would be in their best interest to understand how these new rules will affect health-related claims, particularly in more complicated cases.

“The litigants, such as insurance companies, are the real ‘consumers’ of these expert reports and they spend a considerable amount of money on them,” notes Srebrolow. “I think they would be better and more informed consumers if they know more about the new process and can avoid the pitfalls.”

Adds George: “I think insurers need to be prepared to bite the bullet on getting an objective report that will stand up to the scrutiny of the court and the new rules for expert witnesses. If that costs more and involves more research, then so be it. The old way of relying on medical assessment ‘mills’ for experts involves too much risk.”