FLAWED EXPERT EVIDENCE ON CREDIBILITY:
The mischief observed at least for the past 30 years is that medical opinions on disability tests, regardless of whether a test is legal or factual, such as whether a person is, more factually, "disabled from returning to his or her job" or is, more legally, "disabled from engaging in the essential tasks of his or her employment", boil down to whether the medical experts believe the person's subjective reporting of symptoms and disability is substantially true or not. Plaintiffs' treating doctors and experts do in between about 80% to 99% of cases while defence experts do not in about 90% to 99% of cases. This nearly identical, opposite discrepancy seems to be hinged substantially on an implicit assessment of truthfulness but without expressly saying so.
While the common law seems clear that the ultimate conclusion as to the credibility or truthfulness of a witness is for the jury and is not the proper subject of expert opinion for several reasons including that such an assessment is notoriously difficult, and that the expert's opinion may be founded on factors which are not in the evidence upon which the judge and juror are duty-bound to render a true verdict (R. v. Marquard, 1993 SCC 37 CanLII; applied: Parliament v. Conley 2021 ONCA), what is less obvious, but perhaps equally improper, is the various imperceptible yet pervasive different forms of assessments of credibility that are not expressly presented as a loud or obvious "ultimate conclusion" of credibility in personal injury and disability cases.
This project is to examine, with the goal to seek out and bar, all assessments of credibility in expert opinion evidence in all their manifestations - not just "the ultimate conclusion" whatever that may mean - for we believe that expert opinions must not have any improper component underlying them, whether the improper legal component in opinions of mixed law and fact, or the improper credibility component in opinions of mixed credibility and fact.
This project is under research and development, and to be constructed.
***
Working Notes:
Victims of invisible injury, including those suffering from mental, psychological or psychiatric impairments, as well as chronic pain resulting from soft tissue injuries continue to face substantial hurdles in achieving fair settlements or verdicts. Employers, officials, and even physicians have subjected bona fide victims of pervasive chronic pain without objective evidence of injury to persistent suspicions of malingering (Martin vs. Nova Scotia (Workers' Compensation Board, [2003] 2 S.C.R. 504).
"Where, therefore, genuine factual uncertainty arises regarding the worthiness of a claim, this can and should be addressed by robust application of those elements by a trier of fact, rather than by tipping the scales via arbitrary mechanisms (R. Stevens, Torts and Rights (2007), at p. 56). Certainly, concerns about “subjective” symptoms or about feigned or exaggerated claims of mental injury are — like most
matters of credibility — questions of fact best entrusted to the good sense of triers of fact, upon whose credibility determinations of liability and even of liberty often rest. In short, such concerns should be resolved by “a vigorous search for the truth, not the abdication of judicial responsibility" (Linden and Feldthusen, at p. 449; see also Toronto Railway Co. v. Toms (1911), 44 S.C.R. 268, at p. 276; Stevens, at p. 56).": Saadati v. Moorhead, 2017 SCC 28, para. 22, emphasis added.
***
In Bruff-Murphy 2017 ONCA 502 (CanLII) decision, the CA noted at para 15: The trial judge then proceeded to rule that Dr. Bail could not testify on certain sections of his report. The relevant sections were primarily where Dr. Bail was critical of the reliability of the conclusions reached by other doctors examining Ms. Bruff-McArthur. The trial judge also made clear that he did not want Dr. Bail testifying about Ms. Bluff-McArthur’s credibility. [Underlining added.]
Noting Dr. Bail was found to have nearly usurped jury function of assessing credibility of Bruff-Murphy, but experts do it all the time without stating as obviously partisan as Dr. Bail. Dr. Bail was criticized because he wrote too much and let us see the black box behind expert opinion - that there is not much expertise in that box but a lot of predictable bias. Had he written much less, as many other experts had, he would likely have been fine and escaped adverse scrutiny. Experts routinely provide only a "paucity" of expert analysis: CA on Bail in Bruff-Murphy; or commonly provide few reasons despite being required by the Rules to provide fulsome reasons: Wilson J. in Peller v. Ogilvie-Harris, 2018 motion);
This paucity is again, unsurprisingly, reported in Pucci v. Wawanesa 2020 ONCA 265 below, where the paucity could only be challenged and undermined during cross-examination at the time of trial, a point in time where over 99% (per informal and anecdotal statistics, and no known reported statistics to the contrary) of injury cases never reached because they had been settled without undermining this paucity - or "black box" - which contained improper underlying evidence.
It appears possible, if not likely, that once the Rules are amended to ban medical evidence on questions of law and mixed law and fact, the playground which generates improper evidence for medical experts in the legal arena will be drastically altered and restricted. This drastic reduction appears likely to entail a drastic loss in the improper opportunities for medical experts to opine on credibility on their way to their improper legal opinions.
The mischief observed at least for the past 30 years is that medical opinions on disability tests, regardless of whether a test is legal or factual, such as whether a person is, more factually, "disabled from returning to his or her job" or is, more legally, "disabled from engaging in the essential tasks of his or her employment", boil down to whether the medical experts believe the person's subjective reporting of symptoms and disability is substantially true or not. Plaintiffs' treating doctors and experts do in between about 80% to 99% of cases while defence experts do not in about 90% to 99% of cases. This nearly identical, opposite discrepancy seems to be hinged substantially on an implicit assessment of truthfulness but without expressly saying so.
While the common law seems clear that the ultimate conclusion as to the credibility or truthfulness of a witness is for the jury and is not the proper subject of expert opinion for several reasons including that such an assessment is notoriously difficult, and that the expert's opinion may be founded on factors which are not in the evidence upon which the judge and juror are duty-bound to render a true verdict (R. v. Marquard, 1993 SCC 37 CanLII; applied: Parliament v. Conley 2021 ONCA), what is less obvious, but perhaps equally improper, is the various imperceptible yet pervasive different forms of assessments of credibility that are not expressly presented as a loud or obvious "ultimate conclusion" of credibility in personal injury and disability cases.
This project is to examine, with the goal to seek out and bar, all assessments of credibility in expert opinion evidence in all their manifestations - not just "the ultimate conclusion" whatever that may mean - for we believe that expert opinions must not have any improper component underlying them, whether the improper legal component in opinions of mixed law and fact, or the improper credibility component in opinions of mixed credibility and fact.
This project is under research and development, and to be constructed.
***
Working Notes:
Victims of invisible injury, including those suffering from mental, psychological or psychiatric impairments, as well as chronic pain resulting from soft tissue injuries continue to face substantial hurdles in achieving fair settlements or verdicts. Employers, officials, and even physicians have subjected bona fide victims of pervasive chronic pain without objective evidence of injury to persistent suspicions of malingering (Martin vs. Nova Scotia (Workers' Compensation Board, [2003] 2 S.C.R. 504).
"Where, therefore, genuine factual uncertainty arises regarding the worthiness of a claim, this can and should be addressed by robust application of those elements by a trier of fact, rather than by tipping the scales via arbitrary mechanisms (R. Stevens, Torts and Rights (2007), at p. 56). Certainly, concerns about “subjective” symptoms or about feigned or exaggerated claims of mental injury are — like most
matters of credibility — questions of fact best entrusted to the good sense of triers of fact, upon whose credibility determinations of liability and even of liberty often rest. In short, such concerns should be resolved by “a vigorous search for the truth, not the abdication of judicial responsibility" (Linden and Feldthusen, at p. 449; see also Toronto Railway Co. v. Toms (1911), 44 S.C.R. 268, at p. 276; Stevens, at p. 56).": Saadati v. Moorhead, 2017 SCC 28, para. 22, emphasis added.
***
In Bruff-Murphy 2017 ONCA 502 (CanLII) decision, the CA noted at para 15: The trial judge then proceeded to rule that Dr. Bail could not testify on certain sections of his report. The relevant sections were primarily where Dr. Bail was critical of the reliability of the conclusions reached by other doctors examining Ms. Bruff-McArthur. The trial judge also made clear that he did not want Dr. Bail testifying about Ms. Bluff-McArthur’s credibility. [Underlining added.]
Noting Dr. Bail was found to have nearly usurped jury function of assessing credibility of Bruff-Murphy, but experts do it all the time without stating as obviously partisan as Dr. Bail. Dr. Bail was criticized because he wrote too much and let us see the black box behind expert opinion - that there is not much expertise in that box but a lot of predictable bias. Had he written much less, as many other experts had, he would likely have been fine and escaped adverse scrutiny. Experts routinely provide only a "paucity" of expert analysis: CA on Bail in Bruff-Murphy; or commonly provide few reasons despite being required by the Rules to provide fulsome reasons: Wilson J. in Peller v. Ogilvie-Harris, 2018 motion);
This paucity is again, unsurprisingly, reported in Pucci v. Wawanesa 2020 ONCA 265 below, where the paucity could only be challenged and undermined during cross-examination at the time of trial, a point in time where over 99% (per informal and anecdotal statistics, and no known reported statistics to the contrary) of injury cases never reached because they had been settled without undermining this paucity - or "black box" - which contained improper underlying evidence.
It appears possible, if not likely, that once the Rules are amended to ban medical evidence on questions of law and mixed law and fact, the playground which generates improper evidence for medical experts in the legal arena will be drastically altered and restricted. This drastic reduction appears likely to entail a drastic loss in the improper opportunities for medical experts to opine on credibility on their way to their improper legal opinions.
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