Archive for the ‘expert witnesses’ Category

Matthew J. Wilson, “Improving the Process: Transnational Litigation and the Application of Private Foreign Law in U.S. Courts”

January 8, 2013

Matthew J. Wilson (University of Wyoming – College of Law) has posted “Improving the Process: Transnational Litigation and the Application of Private Foreign Law in U.S. Courts”, New York University Journal of International Law and Politics (JILP), Vol. 45, 2013, forthcoming. The abstract reads:

Due to the current and anticipated stream of foreign law issues in U.S. courts and arbitration proceedings, it is necessary to explore additional ways to ensure accuracy and improve current procedures in applying foreign law. At the same time, it is also important to understand the issues and concerns underlying the application of foreign law in U.S. courts. In recent years, foreign law has increasingly gained greater public attention and political discourse has progressively focused on the use of foreign law by U.S. courts. Some of this attention has been politically charged and quite unfavorable. In fact, policymakers across the U.S. have advocated measures that would prohibit courts from using or relying on foreign law in certain instances. In many respects, much of the negative sentiment towards foreign law has been misdirected resulting in public confusion. Accordingly, an examination of the boundaries of the ongoing debate is necessary to clarify those areas in which foreign law can and should be applied without issue. To accomplish the above objectives, this article focuses on the legal requirements, practical aspects, and possible improvements of proving the law of a foreign country in U.S. courts. Before delving into these areas though, it is worthwhile to breakdown the opposition to the use and application of foreign law in U.S. courts to gain a better understanding of the attendant issues.

 A pdf copy of the paper is available for download on SSRN here.

Admissibility of Expert Evidence

May 9, 2012

judge and expert witness

Today’s decision of the Court of Appeal for Ontario in Alfano v. Piersanti, 2012 ONCA 297 contains a useful summary of the legal test for admissibility of expert evidence:

[103] Expert evidence is an exception to the general rule barring opinion evidence. In R. v. Mohan, [1994] 2 S.C.R. 9, the Supreme Court of Canada set out the four criteria for the admissibility of expert evidence: 1) relevance, 2) necessity in assisting the trier of fact, 3) the absence of any exclusionary rule, and 4) proper qualification. The party tendering expert evidence has the burden to satisfy the four Mohan criteria on a balance of probabilities.

[104] In discussing the second criterion at pp. 23, 24 of Mohan, the Supreme Court referred to the concept of helpfulness to a trier of fact. The court concluded that the appropriate test for necessity is whether the expert is capable of assisting the trier by providing information likely to be beyond the trier’s knowledge and experience.

[105] In determining whether an expert’s evidence will be helpful, a court will, as a matter of common sense, look to the question of the expert’s independence or objectivity. A biased expert is unlikely to provide useful assistance.

[106] Courts have taken a pragmatic approach to the issue of the independence of expert witnesses. They have recognized and accepted that experts are called by one party in an adversarial proceeding and are generally paid by that party to prepare a report and to testify. The alignment of interest of an expert with the retaining party is not, in and of itself, a matter that will necessarily encroach upon the independence or objectivity of the expert’s evidence.

[107] That said, courts remain concerned that expert witnesses render opinions that are the product of their expertise and experience and, importantly, their independent analysis and assessment. Courts rely on expert witnesses to approach their tasks with objectivity and integrity. As Farley J. said in Bank of Montreal v. Citak, [2001] O.J. No. 1096, “experts must be neutral and objective [and], to the extent they are not, they are not properly qualified to give expert opinions.”

[108] When courts have discussed the need for the independence of expert witnesses, they often have said that experts should not become advocates for the party or the positions of the party by whom they have been retained. It is not helpful to a court to have an expert simply parrot the position of the retaining client. Courts require more. The critical distinction is that the expert opinion should always be the result of the expert’s independent analysis and conclusion. While the opinion may support the client’s position, it should not be influenced as to form or content by the exigencies of the litigation or by pressure from the client. An expert’s report or evidence should not be a platform from which to argue the client’s case. As the trial judge in this case pointed out, “the fundamental principle in cases involving qualifications of experts is that the expert, although retained by the clients, assists the court.”

[109] The report of the Goudge Inquiry, Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Ontario Ministry of the Attorney General: 2008), at p. 503, noted the importance of expert witness independence, quoting the principles described by the Court of Appeal of England and Wales in R. v. Harris and others, [2005] EWCA Crim 1980, at para. 271:

(1) Expert evidence presented to the court should be and seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.

(2) An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of advocate.

[110] In most cases, the issue of whether an expert lacks independence or objectivity is addressed as a matter of weight to be attached to the expert’s evidence rather than as a matter of the admissibility. Typically, when such an attack is mounted, the court will admit the evidence and weigh it in light of the independence concerns. Generally, admitting the evidence will not only be the path of least resistance, but also accord with common sense and efficiency.

[111] That said, the court retains a residual discretion to exclude the evidence of a proposed expert witness when the court is satisfied that the evidence is so tainted by bias or partiality as to render it of minimal or no assistance. In reaching such a conclusion, a trial judge may take into account whether admitting the evidence would compromise the trial process by unduly protracting and complicating the proceeding: see R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 91. If a trial judge determines that the probative value of the evidence is so diminished by the independence concerns, then he or she has a discretion to exclude the evidence.

[112] In considering the issue of whether to admit expert evidence in the face of concerns about independence, a trial judge may conduct a voir dire and have regard to any relevant matters that bear on the expert’s independence. These may include the expert’s report, the nature of the expert’s retainer, as well as materials and communications that form part of the process by which the expert formed the opinions that will be the basis of the proposed testimony: see R. v. INCO Ltd. (2006), 80 O.R. (3d) 594, at p. 607 (S.C.).[6]

[113] An appellate court will accord deference to a trial judge’s decision to exclude evidence of an expert on the basis that the proposed evidence lacks independence. On reviewing such a decision, an appellate court will look to whether the trial judge applied the proper legal principles and whether the trial judge’s conclusion was supported by the evidence. Absent such an error, an appellate court will not interfere.

[114] I would not interfere with the trial judge’s decision in this case. The trial judge had regard to the appropriate legal principles and there was ample evidence to support her conclusion that Mr. Anson-Cartwright’s proposed evidence lacked independence.

Do plaintiffs always have to rely on expert opinion evidence to prove medical malpractice?

May 27, 2010

 Is expert opinion evidence always required to prove a breach of the standard of care in a medical malpractice case? The answer, in Vandergiessen v. Trillium Health Centre (Mississauga), 2010 ONCA 379, is “no, not really”:

[5] It is clear from what the motion judge stated to the appellant during the course of the summary judgment motion proceedings and from his very brief reasons disposing of the motion that he granted summary judgment solely on the ground that the appellant’s failure to provide an expert opinion was necessarily fatal to her claims.

[6] In our respectful view, the motion judge erred by granting summary judgment on this record. Not all claims against medical doctors require expert opinion evidence that the applicable standard of care was not met: see ter Nuezen v. Korn, [1995] 3 S.C.R. 674 at paras. 40-49. While the appellant may be unable to establish elements of her claim without an expert opinion, the claims advanced by the appellant against the respondents involve more than a typical allegation of medical malpractice. The appellant claims that statutory procedures and statutory conditions for her involuntary committal were not followed or satisfied. In our view, these allegations fall into the category of claims that may be established without an expert opinion. They are not matters that rest solely upon the opinion of experts as to whether the requisite standard of care was met.

[7] In our view, given the specific nature of the allegations advanced in the pleadings against them, the respondents failed to satisfy the burden that rests upon them to lead evidence demonstrating that there was no triable issue.

The Fundamental Change in the Role of Experts in the Ontario Civil Justice System

October 10, 2009
There is a new dawn approaching for experts giving evidence in Ontario civil proceedings.

Recall the landmark Supreme Court decision in R. v. Mohan, [1994] 2 S.C.R. 9 (S.C.C.) where Sopinka, J. set forth the four criteria for the admission of expert evidence:

(a) relevance; 

(b) necessity in assisting the trier of fact; 
(c) the absence of any exclusionary rule; and 
(d) a properly qualified expert.
Thirteen years later, The Civil Justice Reform Project 2007-The Coulter Report, authored by The Honourable Mr. Justice Coulter A. Osborne, Q.C., made several recommendations regarding expert evidence, including (82-84):

* Joint experts should not be mandatory, but the option should be considered by parties to reduce costs.
* Amend the Rules of Civil Procedure to require judges at pre-trials, settlement conferences and trial management conferences to consider and make orders regarding the number, if any, of experts that may be called, considering how many are reasonably required for for the fair and just resolution of the proceeding and whether the proposed number of experts is proportional to the amount at stake.
* Explicitly clarify that the duty of an expert is to assist the court on matters within his or her expertise, overriding obligation to the client.
* Permit judges to order opposing experts to meet to identify, clarify, and resolve disagreements.

The amendments to Ontario Rules of Civil Procedure relating to experts’ new overriding duty to the court and modifications to the evidentiary and fact-finding purpose of expert reports will be in force on January 1, 2009. The following are the key amendments:



4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan;
(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and
(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue. O. Reg. 438/08, s. 8.

Duty Prevails

(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged. O. Reg. 438/08, s. 8.

Some of the existing Rules relating to disclosure and production of expert reports and expert opinions remain apposite:

* Rule 30.03(1) – Parties must disclose all documents within 10 days after the close of proceeding;

* Rule 30.07 – There is an ongoing obligation to disclose any additional documents that were not disclosed or correct any errors in previously filed documents.

* Rule 31.10(1) prohibits the discovery of experts engaged by a party in preparation for contemplated or pending litigation.

* Exception to above rule: Rule 36.01(3) – an expert may be examined for the purpose of having the testimony available as evidence at trial, but only with leave of the court or agreement of the parties, and only after the moving party has served the expert’s report on all other parties. This rule is to allow the expert’s evidence to be admitted to trial when there is significant cost or inconvenience in having the expert testify in person at trial.

* Rule 36.01(4) Before moving for leave to examine an expert witness, the moving party shall serve on every other party the report of the expert witness referred to in subrule 53.03 (1) (calling expert witness at trial) unless the court orders otherwise.

* Rule 36.01(5) Where an order is made under subrule (2) for the examination of a witness in respect of a matter that is or will be the subject of a pending or intended proceeding, the court may, if it considers it appropriate to do so, order the moving party to pay to any other party, in advance of the examination, any or all of the costs reasonably expected to arise for the other party from the examination and any related cross-examination or re-examination.

With respect to Rule 20- Summary Judgment, the general powers of the motions judge have been widened considerably, including directing the parties’ experts to conduct a without prejudice meeting to attempt to narrow or resolve any outstanding issues:

Powers of Court

20.05 (1) Where summary judgment is refused or is granted only in part, the court may make an order specifying what material facts are not in dispute and defining the issues to be tried, and order that the action proceed to trial expeditiously. O. Reg. 438/08, s. 14.

Directions and Terms

(2) If an action is ordered to proceed to trial under subrule (1), the court may give such directions or impose such terms as are just, including an order,

k) that any experts engaged by or on behalf of the parties in relation to the action meet on a without prejudice basis in order to identify the issues on which the experts agree and the issues on which they do not agree, to attempt to clarify and resolve any issues that are the subject of disagreement and to prepare a joint statement setting out the areas of agreement and any areas of disagreement and the reasons for it if, in the opinion of the court, the cost or time savings or other benefits that may be achieved from the meeting are proportionate to the amounts at stake or the importance of the issues involved in the case and,

(i) there is a reasonable prospect for agreement on some or all of the issues, or

(ii) the rationale for opposing expert opinions is unknown and clarification on areas of disagreement would assist the parties or the court;

Order re Experts, Costs

(5) If an order is made under clause (2) (k), each party shall bear his or her own costs. O. Reg. 438/08, s. 14.

In light of the new Duty of Expert-Rule 4.1, quaere  whether Rule 52.03 “Court Appointed Experts ” should be recast or renamed.
With respect to expert witnesses generally, Rule 53.03 provides the fundamental functional requirements for experts’ reports:

Experts’ Reports


(1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference required under Rule 50, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48.

(2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48.

(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:

1. The expert’s name, address and area of expertise.
2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.
3. The instructions provided to the expert in relation to the proceeding.
4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
6. The expert’s reasons for his or her opinion, including, 

i. a description of the factual assumptions on which the opinion is based, 
ii. a description of any research conducted by the expert that led him or her to form the opinion, and 
iii. a list of every document, if any, relied on by the expert in forming the opinion.

7. An acknowledgement of expert’s duty (Form 53) signed by the expert. O. Reg. 438/08, s. 48.

Schedule for Service of Reports

(2.2) Within 60 days after an action is set down for trial, the parties shall agree to a schedule setting out dates for the service of experts’ reports in order to meet the requirements of subrules (1) and (2), unless the court orders otherwise. O. Reg. 438/08, s. 48.

See: O. Reg. 438/08, ss. 48, 68 (1).

All of the foregoing begs the question: Are any of these rules changes targeted at experts really necessary ? Most court-certified or qualified experts are members of professional organizations or societies, which promulgate  a set of rules of professional conduct, including a duty of objectivity. For example, the Institute of Chartered Accountants of Ontario (ICAO) Handbook, February 2009, at page 5 07, provides:


Members do not allow their professional or business judgment to be compromised by bias, conflict of interest or the undue influence of others.

Antonin I. Pribetic

Junk Science Redux: Judges as Evidentiary Gate-Keepers

August 20, 2009
One of the key functions of judges is to act as gate-keepers in deciding upon the admissibility of expert evidence. In the United States, the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) (the “Daubert standard”) held that Rule 702 of the Federal Rules of Evidence did not incorporate the “general acceptance” test established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), as a basis for assessing the admissibility of scientific expert testimony. In R. v. Mohan [1994] 2 S.C.R. 9 (S.C.C.), the Supreme Court of Canada set out a four-factor test to determine admissibility of expert evidence: (1) relevance; 2) necessity in assisting the trier of fact; (3) the absence of any exclusionary rule; and (4) a properly qualified expert.
In a new article, D. Michael Risinger (Seton Hall University School of Law), “The NAS Report on Forensic Science: A Glass Nine-Tenths Full (This is About the Other Tenth)” provides an incisive critique and advocates the use of masking and sequential unmasking protocols in forensic science practice. Here is the abstract:
The NAS Committee Report, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES, issued in February of 2009, was a milestone in the decades-long struggle to get those who control the production and utilization of forensic science expertise to admit the various weaknesses of some of the techniques involved, and to take steps to strengthen the reliability of those techniques and their products. The NAS Committee Report is in some ways the culmination of those efforts, and has made it now untenable to dismiss criticisms as simply the cavils of uninformed academics with nothing better to do.
In this sense the report is a glass nine-tenths full, and is to be celebrated as such. But then there is the other tenth, the tenth that may, as an unintended consequence, delay needed reform significantly and unnecessarily. The most significant part of this unwise tenth is the decision not to push strongly for the immediate adoption of masking and sequential unmasking protocols in forensic science practice, but instead to call for “more research” on the issue in advance of moving forward.
This paper explains in detail why the “await more research” approach is misguided. 
Further reading:
Todd L. Archibald and Heather L. Davies, “Law, Science and Advocacy: Moving Towards a Better Understanding of Expert Scientific Evidence in the Courtroom”, in Annual Review of Civil Litigation, 2006, Justices Archibald and Echlin (Eds.) (Toronto, Canada: Thomson-Carswell, 2007), at pp. 1-31.
David E. Bernstein, “Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution” (February 2007). Iowa Law Review, Forthcoming; George Mason Law & Economics Research Paper No. 07-11. Available at SSRN:
Antonin I. Pribetic

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