In a February 2016 Law Times article, Steve Rastin called for a public inquiry into concerns recently expressed by the Ontario Trial Lawyers Association (OTLA) that some medical-legal experts distort evidence in personal injury claims, on behalf of their insurance company clients. Mr. Rastin asserts, "The expert should give the same opinion whether he or she is hired by the insurance company or by the claimant."
When experts bow to pressures to present testimony that is biased towards the insurance company, then seriously injured persons deserving of compensation may be unfairly denied coverage or receive inadequate compensation for their injuries. The objectivity and impartiality of expert witnesses is a fundamental expectation because expert witnesses are an exception to the general rule that a witness should testify only about situations and facts they observe, but not the inferences they draw from their observations.
The courts have allowed this exception for expert witnesses because experts contribute special knowledge to interpret the specific facts in a case. The fact that experts are allowed, and even expected, to offer their opinions on the facts of a case creates a vulnerability in the justice system if experts fail to be fair and non-partisan.
There have been a number of recent cases in the courts and before the Financial Services Commission in which judges and arbitrators determined that experts miscarried their role as neutral and independent witnesses, actions that were criticized as unacceptable by the adjudicators.
Case example
A 2016 trial, Bruff-Murphy v Gunawardena, raised the issues of partisan expert witnesses and civil trial by jury. Of specific concern is the fact that a jury lacks the experience and judgement to recognize and dismiss biased expert witness testimony.
The plaintiff, Ms. Bruff-McArthur, was rear ended in a car accident while she was 7 months pregnant and as a result, suffers chronic back, facial and neck pain; depression; musculoskeletal disorders; and PTSD, and ongoing pain prevents her from being gainfully employed.
The trial judge concluded that the accident victim's injuries met the threshold of permanent serious impairment of a physical, mental or psychological function under Ontario law, to be eligible for damages for pain and suffering (general damages).
Upon consideration, the judge found the medical evidence presented by the plaintiff's experts and witnesses to be more accurate and credible than that of the two defense witnesses, an orthopedic surgeon and a psychiatrist.
The orthopedic surgeon's testimony was judged to be both irrelevant and out-dated in terms of current medical thinking, when he testified that there must be a medical reason to explain pain and that pain is a perception and not evidence-based medicine. The psychiatrist's testimony was more damaging: this witness told the jury that the plaintiff was faking her pain and injuries.
Of note is the fact that the defense witness received a great deal of his income by conducting assessments for insurers and defendants, and was, on several occasions, found to be partisan and an advocate for the party paying for his services.
The judge found that the psychiatrist testifying for the plaintiff had superior qualifications and experience in comparison to the defense witness, and had also conducted a more thorough examination of the plaintiff than the latter. Yet, despite the irrelevance of one expert witness testimony and apparent bias of the other, the jury awarded only nominal general damages of $23,500 to the plaintiff.
At the conclusion of the trial, the judge expressed a lack of understanding as to why such a small sum was awarded in this case.
Ontario claimants are not the only victims of insurance company witness bias. Judges and advocates of non-partisan experts in other provinces have expressed concern with respect to recent trials involving clear cases of witness bias.
After a judgement in a 2015 trial, MacLean v. Parmar, a Calgary judge criticized the evidence of a neuropsychologist as being offensive, unhelpful and biased against the Plaintiffs.
The neuropsychologist conducted only a paper review and did not examine the Plaintiff; and he pronounced judgement that the plaintiff could not be suffering from PTSD, without actually knowing the full details of the accident. The trial judge concluded that bias taints and discredits everything that an expert witness has to say. Further, it has been suggested that bias actually drives up the cost of car insurance for everyone because it polarizes the position of parties trying to settle and forces them to go to trial.
The FAIR Association for Victims for Accident Insurance Reform along with the OTLA are asking the Ontario government to begin a public inquiry to examine medical assessment practices and the quality of medical evidence for injured car accident victims.
This critical issue is being brought to the attention of David Marshall who was a former president of the Workplace Safety and Insurance Board and effective February 1st, began a new role as advisor on auto insurance and pensions, to the Ontario Finance Minister.
Steve Rastin, former president of the OTLA, expressed the hope of soon meeting with Mr. Marshall to discuss an independent review of the current system. The Ontario Ministry of Finance (OMF) responded to the OTLA concerns saying that the government is attempting to balance the needs of injured accident victims with the goal of affordable auto insurance.
The OMF reports that recent changes will help assess and treat injuries so that claimants can receive needed treatment while minimizing insurance claim disputes. While streamlining access to needed benefits is a positive step, one wonders why there would be any conditions under which potential expert witness bias would be acceptable?
None of us anticipate being seriously injured in a car accident and struggling with pain, with perhaps no end in sight, nor do we envision taking months or years to regain our health and mobility. However, this scenario is unfortunately not uncommon for victims of serious accidents. Accident victims, many of whom have been paying premiums to their insurer for many years, should expect to receive the financial help they deserve and need without having their injuries dismissed and claim disputed.
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