Biased Expert Witnesses

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Biased Expert Witnesses

In the recent Daggitt v Campbell, 2016 ONSC 2742 case, the plaintiff, Steacy Daggitt, was injured in a car collision. She sustained various injuries, including psychological complaints. She was assessed by a psychologist and a neuropsychologist. She commenced a lawsuit against Matthew Campbell, the driver who rear-ended her.

The defendant brought a motion to have Ms. Daggitt examined by a psychiatrist, Dr. Monte Bail.  Ms. Daggitt refused, arguing that the defendant was not entitled to an examination by a psychiatrist because she had never been treated by a psychiatrist and because there was insufficient evidence of why an assessment by a psychiatrist was warranted.

The motion judge agreed with the plaintiff, citing in her reasons the fact that Ms. Daggitt has never been treated or assessed by a psychiatrist nor had anyone recommended to her that she be treated by a psychiatrist. The motion judge cited case law recognizing that the fields of psychology and psychiatry are different. She held, “To make the order sought would favour the defence and prejudice the plaintiff.”

The motion judge dismissed the motion and went on to provide additional comments in obiter about the bias demonstrated by the proposed expert witness, Dr. Monte Bail, citing separate decisions in which courts have been critical of Dr. Bail’s methods.

Justice MacLeod-Beliveau wrote: “When an expert and that expert’s report is notably partisan, acts as judge and jury, advocates for the insurer rather than being impartial, is not credible, and fails to honour the undertaking to the court to be fair, objective, and non-partisan, it directly affects a party’s right to a fair trial.” [para 27]. Under the Rules of Civil Procedure, courts have the discretion to name the health practitioner who will conduct the medical examination and courts should exercise that discretion to not name a particular health practitioner if that health practitioner is biased.

To speak with an experienced personal injury lawyer please contact Tim Leigh-Bell online or by telephone at 1-800-797-6989.