One would think that an expert witness would be…well…an expert witness. After all, expert testimony is supposed to be reliable and helpful. Not all lawyers believe this is the case – far from it.
A recent article in Lawyers Weekly explains that expert medical evidence is often “superficial, speculative and unnecessary.”
The article says that expert witness testimony is superficial and speculative in many disputes. One such example is when an expert is asked whether or not the plaintiff “reasonably requires” 24/7 supervisory care. It is an important question because supervision is usually the largest head of damage in many personal injury cases, such as cases involving brain trauma. In other words, the answer to this question can have a huge effect on the amount of damages awarded to the plaintiff. However, the answer is complicated because the question is usually asked when the patient has recovered, but still has residual cognitive impairments. It is often hard to quantify the compensation required and give a definite response.
“The question directed at the experts is one of an unusual nature,” the article says. “It mixes facts and law. But what makes it even more unusual is that the key facts are not static but dynamic — an always moving target, largely dependent on an assessment of credibility of the victim under the total circumstances of the case.”
“The expert is, in essence, asked to assess three things concurrently to render an opinion: credibility, facts, and applicable law. This formula is problematic as it injects much subjectivity and confusion into the process.”
The article also says that expert evidence is unnecessary because “an assessment of credibility is part of the daily functions and hence the ordinary knowledge of the adjudicator… Furthermore, even if permitted, an assessment of credibility by an expert is grossly incomplete because he or she does not have access to the totality of the evidence in the case, including cross examinations at trial, before rendering a report. Second, an assessment of complex applicable legal standards with convoluted interpretations is similarly a task for adjudicators, not for medical witnesses.”
Lastly, the article alleges that the experts do not engage in a reasoning process that can ostensibly link the trauma suffered to the compensation claimed.
The requirements for admissibility of opinion evidence, according to R. v. Mohan, are 1) relevance 2) necessity, 3) no exclusionary rule, and 4) a properly qualified expert. The article argues that in our current use of medical evidence, “necessity” and “properly qualified expert” seem to be the two problematic grounds.
Despite the article’s valid concerns, it is not enough to do away with expert evidence in personal injury trials. After all, such evidence is often what can make or break the case. If briefed properly by a lawyer, expert evidence can still serve as important admissible evidence, relaying a necessary perspective that helps complete the picture for the adjudicator. If you have any questions, book a free consultation or call 1-855-446-7765 for immediate assistance.
