Personal Injury

Experts who act for both sides more attractive to personal injury counsel

By Staff

Counsel are less likely to hire experts who exclusively testify for either plaintiffs or defendants following a recent decision which addressed the witnesses' apparent lack of impartiality, Toronto personal injury and disability lawyer Nainesh Kotak tells

The defendants in the case, which involved injuries suffered by the plaintiff in a six-car pileup, appealed the trial decision against them, claiming the judge made an unfair charge to the jury and demonstrated bias against them.

The trial judge identified “serious flaws” in the defence witnesses’ evidence on a threshold motion, and separately drew the jury’s attention to the fact that the two defence experts made the bulk of their income from assessments on behalf of insurers.

“The appellants argue that the trial judge showed a negative attitude towards the defence experts. We disagree,” the unanimous three-judge panel concluded in their Oct. 5 judgement dismissing the appeal.

“Over all, the trial judge’s conduct of the trial was fair and balanced,” they added.

“I think the Court of Appeal provides the correct analysis here,” says Kotak, principal of Kotak Personal Injury Law, who adds that the decision fits a trend whereby judges are becoming increasingly comfortable expressing concern about experts who are hired almost exclusively by one side in personal injury matters.

“In this case it was the defence witnesses, but the same thing can be said about witnesses who act only for plaintiffs — they may not be looked at as impartial,” Kotak explains. “I think both plaintiff and defence counsel looking at this decision are going to be more likely to pick experts who have acted for both sides, or who don’t generate most or all of their income acting for one side.”

According to the decision, the defence, suspecting the plaintiff was malingering, had her under surveillance for 26 days over the course of four years following the 2010 car crash.

Following the trial, the judge dismissed the defence’s threshold motion, concluding that the evidence of the two defence witnesses actually supported the plaintiff's case, despite its serious shortcomings.

She also noted that one medical expert “appeared indignant” when it was revealed that most of her $450,000 annual income came from assessments on behalf of defence lawyers and insurance experts. While she had testified on one occasion for a plaintiff, this was only because the person happened to be her patient, the trial judge noted.

“Incredibly, she is of the view that she can be seen as entirely neutral no matter to whom she owes much of her livelihood,” the trial judge added in her threshold motion decision.

Commenting on the defence’s other main expert, a psychiatrist, the judge noted that “even though half of his time and two-thirds of his annual income (of approximately $400,000) is devoted to medical-legal work for defendants, he insisted that does not influence him ‘in any way.’”

In its judgment upholding the trial judge’s rulings and charge, the appeal court noted that the judge’s comments on the weaknesses in the experts’ evidence “would not have been before the jury.”

“In any event, we read nothing inappropriate in this ruling. Moreover, the trial judge’s comments in her instructions were accurate and balanced,” the panel added, noting that she had simply advised the jury of the proportion of medico-legal work (in terms of time spent or income earned) in the practices of each witness, as well as the proportion of that work performed for plaintiffs or defendants.

“I think it was valid for the judge to emphasize those proportions, which were matters of fact, to the jury,” Kotak says. “She saved her critique for her ruling on the threshold motion, which was not heard in front of the jury.”

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