Is Comparing an Expert Witness to a "Wizard Buffoon" Fair Game in an Injury Trial?

Reasons for judgement were recently shared with me addressing the scope of permissible closing arguments criticizing an opposing expert witness in an injury claim before a jury.  In short the Court held that comparing an opposing expert to Johnny Carson’s Carnac The Magnificent crossed the line.
In the recent case (Walker v. ICBC) the Plaintiff sued for damages for serious injuries sustained in a motor vehicle incident.  In defending the case ICBC called a professional engineer who provided evidence which contradicted the Plaintiff’s expert.  The expert was vigorously cross examined.  In closing arguments to the Jury the expert was compared to Carnac the Magnificent.  In finding this comment beyond the permissible scope Mr. Justice Voith provided the following reasons:
[24]  The Submission addressed Dr. Toor and his evidence at paras. 78-87 and elsewhere.  The attack made on Dr. Toor had at least two components or aspects, each of which was repeated in different ways and each of which was inappropriate.  The first was that Dr. Toor, a professional person, was knowingly and intentionally made an object of derision and ridicule.  Counsel for the Plaintiff accepted this and did not resile from it.  If Dr. Toor’s evidence was ridiculous, he argued, Dr. Toor deserved to be ridiculed…
[26]  The second statement, “although Johnny Carson is dead, the Amazing Karnak lives on”, is inappropriate.  The defendant in argument described the Karnac figure as a “wizard buffoon”.  Counsel for the Plaintiff agreed.  He went on to accept that the Karnac figure was a “ridiculous, turbanned and bejewelled caricature”.
[27]  Earlier during the trial, counsel for the plaintiff had held up a sealed envelope in his hand and began to ask Dr. Toor what was in it.  I prevented counsel from proceeding.  I did not appreciate at the time, however, that this bit of theatre was intended to presage things to come and to lay the groundwork for counsel’s subsequent submissions.  I accept that counsel can be vigorous in its attack on the evidence and qualificaitons of an expert.  That attack may well use some “drama and pathos”:  Cahoon at para. 18.  I do not consider or accept that it should extend to ridicule based on counsel’s belief that a witness’s evidence is ridiculous.  It should not depict or describe a professional person, qualified to give expert evidence, as a fool or buffoon based on counsel’s perception of that witness.  In this case, the indirect assertion that Dr. Toor was a buffoon was reinforced by the sarcastic tone, again often independently acceptable, which counsel for the plaintiff used in these submissions.
A mistrial was eventually declared.  The reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.
I am advised this matter is under appeal and will post further on this topic after the BC Court of Appeal weighs in on this issue.  Whatever the final judicial outcome addressing the scope of fair criticism, its a safe bet BC won’t mirror New Mexico’s satirical 1995 proposal requiring expert witnesses to dress like wizards while testifying.

bc injury law, closing arguments, Mr. Justice Voith, Walker v. Doe

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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