Expert Witness Criticized by BC Supreme Court for "Advocacy"
Further to my previous posts on this topic, expert witnesses have a duty to be objective when giving their evidence and opinions in a BC Supreme Court trial. Rule 11-2 specifically sets out that “In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party.”
In addition to the above, the BC College of Physicians and Surgeons (the governing body for BC doctors) has provided the following feedback to its members: “ Additionally, whether physicians are acting as experts in the capacity of treating physicians or independent medical experts, they still must provide balanced and objective reports. The College does recommend that, when asked to provide an expert opinion, treating physicians discuss with their patients the physician’s duty to assist the court and not be an advocate for any party.”
If experts fail to give objective evidence their opinions can be excluded from trial and they open themselves to criticism from the trial judge. Reasons for judgement were released today by the BC Supreme Court demonstrating this.
In today’s case (Warkentin v. Riggs) the Plaintiff was involved in a 2005 motor vehicle collision. The Defendant admitted fault for the crash. The Plaintiff sustained various injuries including an alleged post traumatic Fibromyalgia Syndrome. In support of her case the Plaintiff filed several medical reports. The Defendant objected to one of these being introduced on the basis that the expert ignored his duty to the Court and presented his evidence not as a neutral expert but rather as an ‘advocate‘. Madam Justice Gropper agreed and excluded the expert’s evidence. In doing so the Court provided the following harsh criticism:
[58] Dr. Hunt’s report adopts a particular format. He uses bold font to highlight words and phrases which benefit the plaintiff’s claim and support his diagnosis. This is apparent in his review of Ms. Warkentin’s history and medical reports. That which is contrary to the plaintiff’s claim or does not support his diagnosis is either omitted or presented in non-bolded font. This emphasis in support of the plaintiff’s claim and the exclusion of contrary matters is advocacy…
[81] I find that Dr. Hunt is not a neutral and impartial expert providing assistance to the court, but rather an advocate on behalf of the plaintiff. The report is argument, not opinion. He did not provide a balanced discussion of fibromyalgia and its possible application to the plaintiff’s case. His discussion of the medical principles and their application to the plaintiff’s case is biased, argumentative and contrary to the requirements for the admissibility of an expert report.
[82] Dr. Hunt’s own description of his role as an “Expert Medical Legal Consultant providing opinions on behalf of patients with chronic pain who are seeking legal remedies with respect to their condition” indicates that he does not consider his role as an expert to be that of an objective advisor to the court.
[83] Dr. Hunt’s perceived role is amply demonstrated in his report. The format he uses is designed to emphasize matters which support the plaintiff’s claim and his diagnosis.
[84] Dr. Hunt presents the medical literature in a manner that suggests that there is consensus about the causal connection between motor vehicle accidents and the onset of fibromyalgia. He attempted to mislead the court regarding the medical literature upon which he relies by referring only to portions which support his diagnosis and prognosis and omitting portions which do not. He does not refer to the cautions and qualifications in the medical literature. He is not current with the medical literature, notably the 2006 prospective longitudinal study by Tischler, which was conducted specifically in order to test the conclusions of the Buskila study.
[85] Dr. Hunt’s testimony, particularly in cross-examination, supports my conclusions about his report; he acted as the plaintiff’s advocate rather than as an independent expert.
[86] Dr. Hunt’s report of March 27, 2009 is likely to distort the fact-finding function of the trier of fact, and therefore its prejudicial effect far outweighs its probative value. I find that it is inadmissible. Because the rebuttal report is a reiteration, it is also inadmissible. I specifically reject Dr. Hunt’s diagnoses as expressed in the report and his medical opinion that they were caused by the accident. I reject Dr. Hunt’s diagnosis and prognosis of fibromyalgia and his opinions about the plaintiff’s functional limitations associated with fibromyalgia.
Ultimately the Court accepted that the Plaintiff did suffer from fibromyalgia but that this was not related to the motor vehicle collision. Madam Justice Gropper found that the Plaintiff did sustain soft tissue injuries to her neck and shoulder along with headaches as a result of the crash. $50,000 was awarded for the Plaintiff’s non-pecuniary damages.
In addition to the discussion of ‘advocacy‘ this decision is worth reviewing in full for the Court’s discussion of the relationship between fibromyalgia and trauma.