As well, having practiced on both sides of the bar, namely, at the defence bar for over 30 years, and now almost a year on the plaintiffs’ side, hopefully, my comments will be seen as having some measure of objectivity and balance. My ultimate thesis in this paper is that, just as the President of the Advocates’ Society, Ronald Slaght, Q.C., has called for “civility in the legal profession”, it seems to me that we should be extending that civility to our expert witnesses who, after all, are doing us a favour by assisting in the conclusion of lawsuits by which we make our living.

As one may appreciate, the rather shrill attack that takes place on opposing medical experts usually begins in the form of a subpoena to witness by the opposite party, directing that that expert bring to Court their tax returns, appointment books for the last several years, books of account which show their receivables from various sources, particularly insurers or law firms that retain them in the instant case, and virtually any type of material that would tend to show a bias on the part of that expert.

As one may also appreciate, the usual method of attacking this request by opposing counsel, is a motion to quash the subpoena by the lawyer whose experts have been requested to bring documents with them to Court.

My thesis should be well understood before going much further into this paper. I take the position that, while some questioning of a medical expert is reasonable with respect to the type of work they do, and for whom they perform it, it seems to me that we are going over the edge when we start pulling in financial records from every opposing expert witness, to demonstrate that form of bias. Obviously, some of you may have cases where you feel that by asking questions without summonsing backup evidence, you are being misled by the experts. In that one solitary exception, I can understand why such a subpoena would be issued and served by opposing counsel. However, the reputations of these doctors are so well known, that it is hard to imagine that anybody is going to be misled as to what the majority of work done by any given medical doctor might be.

There is obviously a second area of concern. In some of my trials over the last few years, I have literally seen the time of trial extended by as much as 15 to 20% because of these types of attacks. Keep in mind that these are only in trials where one side is seeking the records from another side’s doctors. I have yet to retaliate in these situations, although retaliation has obviously been threatened. The difficulty I have is that if this procedure becomes ingrained into our trial system, we will have every lawyer subpoenaing these types of records from every doctor and doing precisely what our governing bodies and judiciary are asking us not to do, namely, extend the time and expense of trial.

Therefore, my overriding concerns are civility to our expert witnesses, and avoiding an increase in the length or expense, of trials.

To assist you in appreciating the two competing points of view, I am in the first instance quoting from an article prepared by John McLeish. The title of the article is “Expert Evidence” and may be found in the Advocates’ Quarterly, Volume 22, Number 4, beginning at page 397. (By the way, in quoting from this article, I am also, at the same time, urging all my readers to review that article as soon as possible because it is most instructive, especially for the novice trial lawyer.)

Quoting from Mr. McLeish’s article, at Page 445:
“A summons should be set aside only in the clearest of cases where it can be demonstrated that it is being used for an improper purpose or as an abuse of process. Since a summons is such an integral part of the trial process, the standard to set aside a summons should be a very high one (e.g., “drastic relief”…). When the financial records and appointment diaries of an opposing medical expert are summoned at trial for the purpose of attempting to show on cross-examination that the opposing medical expert is biased and not impartial, this falls squarely within one of the stated purposes of cross-examination at trial. This in no way constitutes an abuse of process.

For example, in The Law of Evidence In Canada, the authors (Sopinka, Lederman and Bryant) state that there are three purposes generally attributed to cross-examination: (1) to weaken, qualify, or destroy the opponents case; (2) to support the party’s own case through the testimony of the opponent’s witnesses; and (3) to discredit the witness.”

Mr. McLeish then quotes directly from the authors, as follows:

“That to accomplish these ends, counsel is given wide latitude and there are, accordingly, very few restrictions placed on the questions that may be asked or the manner in which they may be put. Any question, which is relevant to the substantive issues or to the witness’ credibility, is allowed. It appears that the scope of cross-examination is wide enough to permit questions which suggest facts which cannot be proven by other evidence.”

Mr. McLeish then goes further and states as follows:

“Furthermore, as stated, the use of extrinsic evidence to establish bias is also proper. In this regard the collateral fact rule is relevant. In The Law of Evidence In Canada this rule is discussed. The authors state that the general rule is that “answers given by a witness to questions put to him or her in cross-examination concerning collateral facts (e.g. impeaching a witness’ credibility) are treated as final, and cannot be contradicted by extrinsic evidence.” There are however, several exceptions to this rule. In particular, it is well settled that extrinsic evidence will be permitted “to prove a charge of bias or partiality in favour of the opposite party”. For example, in R. v. Bencardino, (1973), 2 O.R. (2d) 351, the Ontario Court of Appeal unequivocally held that “the authorities are clear that evidence to show state of mind such as hatred, malice, affection or fear is always admissible to impeach a witness”.

This entire issue seems to have been addressed in only one reported decision, Dominguez et al v. Lee and London Transit Commission et al, a decision of Mr. Justice Jenkins, February 18, 2000, in London, Ontario.

In that case, the defendant moved to strike out part or all of the subpoenas issued by plaintiff’s counsel on two of the defendant’s doctors. The subpoenas requested that the doctors produce documents relating to their appointments at hospitals, medical clinics, that they produce accounts for examining the plaintiff and preparing reports relating to medical-legal assessments, that all billings related to DAC assessments and a summary of revenue from medical examinations and DAC assessments for defence counsel also be provided. They also requested calendars and diaries showing appointments for regular patients and for defence medical and DAC assessments.

Counsel for the defendant (Daniel I. Reisler) objected to the subpoenas because they represented a collateral attack on the expert witnesses that had nothing to do with their expertise or the quality of their opinion. Secondly, Mr. Reisler contended that disclosure of information relating to regular patients for whom OHIP is billed is a breach of patient confidentiality. There was a third ground that related to an objection that the demands of the subpoena were too vague and finally, that the disclosure requested by the doctors of their gross income from various assessments, is irrelevant and of no assistance to the jury.

Mr. Reisler, in my view, really hit the nail on the head in his last point. Surely, nobody will quarrel with the fact that there are experts who are favoured by both plaintiffs’ and defence counsel. Few experts available to the personal injury bar represent a well-balanced cross section in their practice. Another thing that is common to every expert ever called to trial, is that each of them get paid for the services rendered.

Therefore, I suggest that to go through the process of subpoena and examination on these issues is really unworthy of the Court’s time, since the above noted facts are simply “the facts of life”.

I have no problem with questions establishing that the expert appears for one side more than the other, but the question really is, how much further should the trial Judge allow it to go?

The other question I would pose to my listeners, or the readers of this paper, is whether this entire attack on bias is really just a “jury thing”. I believe so. I believe that Judges sitting alone are far more aware of the facts of life, which I have set out above, than are the juries.

On the other hand, many counsel will want to bring out the annual income of an opposing medical expert, simply to create a lack of identification between the individual members of the jury who probably earn less than 10% of the doctor’s income, and the medical expert himself.

The obvious purpose of this attack should really throw into question the value of this entire line of questioning. In short, if it is not a useful exercise when a Judge is sitting alone, why should it be clothed in propriety in a jury trial?

Keep in mind that it was less than 40 years ago that the Ontario government recognized the need to convenience experts by allowing their reports to be filed in place of giving viva voce evidence.

It is useful at this point to return to the judgment of Justice Jenkins. At page two he says:

“In this province we have a tradition of treating medical experts with some deference. We do that because our court system cannot function without their cooperation and assistance. Most doctors have large clinical practices, and the courts have always tried to inconvenience them as little as possible by working around their schedules. It is because most doctors have clinical practices that have no connection with the court system that the issue of bias rarely arises. In this case, however, both doctors appear to have devoted a good deal, if not the majority, of their time to conducting defence medicals and D.A.C. assessments. Because of this, their objectivity has been challenged on several occasions. As I said, I was referred to two instances where the trier of fact found that their evidence was not objective.

Regardless of the foregoing, I was not referred to any statements contained in the reports presented by the doctors in this case that are alleged to be improper or biased. Rather, their reports are attacked in the affidavit filed in support of the plaintiff’s position on the grounds that their opinions are diametrically opposed to the opinions expressed by the doctors treating the plaintiff. That of course is the nature of the adversary system and the reason why we have trials, so the trier of fact can sort out the competing opinions. That is also why we instruct juries to watch for bias when assessing the credibility of witnesses. The very fact that one or both of these doctors has been found to be less than objective in other proceedings indicates how well the system works.”

There are other problems inherent in our courts allowing open attacks on bias, such as described by Mr. McLeish.

Firstly, it has been my experience over some 30 years, that in most personal injury cases, at least half the medical evidence is presented to the court by way of medical report and not viva voce. Just how do we propose to demonstrate bias on the part of the doctors whose reports are filed? Are we going to subpoena them to attend at trial before their report is filed to bring with them all these documents that have been requested in the past, so that we can demonstrate bias? Or, if as is usually the case, nothing is done with respect to the issues of bias regarding doctors whose reports are filed, are we then going to treat doctors who testify viva voce differently than those whose reports are filed?

Another issue which, as much as I would like to deny, continues to disturb me, namely, the question of whether vitriolic attacks on bias and competence are simply substitutes for the incompetence of counsel in conducting a well-balanced cross-examination on the issues, which may ultimately be the best evidence of bias or lack of competence.

It is indeed the rare case in which I find my opponents cross-examining medical witnesses on issues which they should be attacking. For example:

1. Did the medical expert approach the case as if it were just another patient, or have they taken into account that this is a question of compensation, as well as an illness to be cured?

2. Did the doctor consider a differential diagnosis?

3. Did the physician, for example, consider secondary gains, or out and out malingering?

4. In the case of an examination by plaintiff’s physician, did the expert have a full history at the time he or she rendered their opinion?

5. Did the medical expert express an opinion in writing as is usually the case, before they were provided with a complete history, including pre and post accident materials? If that information, when presented, did not cause the doctor to alter his or her opinion, is it an example of what every trial Judge cautions a jury not to do, that is to express an opinion prematurely before all the evidence (and addresses) have been heard? Our trial Judges caution juries that human nature is such that pride will often inhibit a person from altering an already clearly stated opinion. Is this what is happening with doctors, and are we cross-examining them carefully enough to determine whether that is the basis of their intransigence?

Another area to explore which is not often done, is the question of whether the plaintiff’s doctor tested for inconsistencies, or lack of effort. Was distraction testing done during an orthopaedic examination, or did a neuropsychologist include tests to demonstrate feigning or lack of effort during their examination?

One rarely sees an exploration by counsel of the question of whether the medical expert in question has a solid working knowledge of the illness being testified to, for example, fibromyalgia. Do they understand how to measure tender points? Do they appreciate the amount of pressure to be used in measuring tender points? Are they aware of critical articles by authoritative experts? Have they actually treated patients with this problem? If not, should they be permitted to prognosticate on the plaintiff’s treatment or whether they should, or should not, have been in a position to return to work?

Oftentimes, counsel also overlook exploring whether the medical expert has evidenced for example, through a differential diagnosis, an awareness that the problems being complained of, may emanate from another area of expertise beyond their own? Do they consider whether that foreign (to them) area could be impacting on the plaintiff’s ability to function? For example, does the physiatrist, orthopaedic surgeon or neurologist, who do an examination and find no objective evidence to support a disability, then decide that the plaintiff should be at full function without considering other issues, such as psychological overlay, or impairment from chronic pain? Did they at least acknowledge that such can exist and at least note that an exploration of same is beyond their area of expertise?

A further area that seems to lack exploration, as well, in a chronic pain case, is the question of whether the expert has placed undue weight on video surveillance. Has the expert considered that surveillance is simply a snapshot in time and can be totally consistent with the nature of chronic pain, that is a process in which the patient experiences both bad days and good days?

Further, when cross-examining a defence medical expert, does that physician concede that a treating physician, in an appropriate case, may have gotten a more accurate picture of the plaintiff? If not, do they explain why not?

As can be seen from a review of the above noted points, one could establish bias through an appropriate examination by showing that the physician in question, for example, did not consider any alternative explanations for the presentation by the patient, such as a differential diagnosis; that the physician in question was stubborn and refused to consider information that was not available to him or her at the time an opinion was rendered; that the doctor did not bother looking for inconsistencies, or lack of effort; that the doctor lacked the solid working knowledge of the illness in question, or that the doctor presupposed that he or she was the fount of all knowledge and did not allow for the possibility that others could bring more light to bear on the question.

Indeed, it seems to me that a proper examination, as outlined above, can demonstrate a lack of competence and perhaps even a bias, by having a pre-determined opinion on the case and refusing to do proper testing to determine whether that opinion can be established.

The other issue with which I have some difficulty is the matter of timing. If, for example, plaintiff’s counsel, or defence counsel for that matter, do not try to knock out the evidence of an opposing medical expert until they reach trial, it places the Judge in a rather difficult position. If that Judge really chooses to knock out the testimony of the expert, are they leaving the party with any evidence to establish their position at trial? Therefore, should there not really be an onus to be placed on opposing counsel at a time when a medical examination is requested, for example, by a defendant? Shouldn’t that be the time when counsel raises the issue of bias and establishes whether the examination should be done at all? At least in that way if the first choice of defence counsel is knocked out for bias, it is not too late to obtain an expert who can testify at trial in any event.

If we do adopt the above noted system, then it seems to me it becomes obvious that neither side should have two kicks at the can, namely, that once a doctor is approved, as in the case of a defence medical examination, there should be no room for attacking that expert on the issue of bias or competence once trial arises.

As to the plaintiff’s experts, while the demarcation point is not quite as clear, surely an onus can be put on defence counsel to take issue with the question of bias or competence of any of the plaintiff’s medical experts, whose reports are served upon the defence lawyer. Perhaps it should be incumbent upon opposing counsel, to take a position within 10 to 20 days of receipt of that report and, if necessary, make out their case in a motions’ court. At the very least, counsel would be well advised to seek an admission of lack of bias, in their Request to Admit.

I believe Mr. Justice Jenkins gets closer to the point when he poses the question as to whether there are statements in the reports objected to, that are improper or biased, or, is the attack based on the fact that the opinions expressed are diametrically opposed to the opinions expressed by the experts hired by the objecting counsel? As Justice Jenkins says:

“The information requested by the plaintiff’s counsel in the subpoenas in issue in this case goes far beyond an attack on the opinions expressed by the doctors or the basis for those opinions. Both doctors can of course be asked, on cross-examination, the usual questions about the number of defence medicals they conduct and the extent to which they rely on income from defence medicals and D.A.C. assessments. The gross amount of their income is, however, irrelevant unless it is contrasted with other information relating to the income of doctors in general. Taken out of context, the gross earnings of the doctors under attack, from those sources, has little probative value and is simply an effort on the part of the plaintiff to embarrass the witnesses.”

In this case, on the undertaking of defence counsel that both physicians attacked by subpoena, would produce their files relating to this particular plaintiff, the trial Judge chose to strike out the Summons to Witness to both physicians.

I must admit to having some difficulty in comprehending Justice Jenkins’ comment with respect to comparing the witnesses’ income with the income of doctors in general. Once we go down that road, is the comparison between one specialist and another, or between a general practitioner and a specialist? As well, does one compare apples to apples, or apples to oranges? If doctor A does medical-legal work, and doctor B earns similar supplemental income from research, etc., what does that mean, if anything?

Indeed, the very fact that any physician in Ontario attempts to supplement his income should hardly be worthy of comment in a jurisdiction where physicians’ annual incomes are capped.

In any event, there are certain types of questions which I submit none of us should really quarrel with, specifically:

1. How many times have you given opinions in or out of Court?
2. How often have you given an unfavourable opinion to the lawyer or insurer that retained you in this particular case?
3. Are you retained by both insurers/defence counsel as well as by the plaintiffs’ bar? (Surely that is as good an indication of lack of bias as any.)

By way of summary, therefore, I really write this paper to urge the profession and the judiciary, to put a limit on the nature and extent of the questioning permitted with respect to the issue of bias, concerning any physician. Methodology, perhaps is the most important point to make. As I stated earlier in this paper, when we are being urged by the leaders of our profession to inject more civility into our daily practice, surely that goes double for those people who assist us in bringing our claims to a conclusion. I would hope our judiciary will also make a mental note of counsel who attack doctors in jury actions, but not non-jury.

I object to what appears to be an effort to get annual income figures of experts on the table at trial in an effort to distance the expert from the income experience of a typical juror.

I object to questions which suggest it is somewhat unusual, or questionable, that a doctor is testifying on a matter for which he was paid. That is purely hypocritical given what we know to be reality in the world of litigation.

Even further, should a big deal be made of the amount of money charged for services by the expert? Is the questioner somehow trying to suggest that a lower fee equals more expertise and less bias, and a higher fee equals less expertise and more bias? In our free market economy I thought the opposite was true.

Finally, I appreciate that anecdotal evidence is of little value. However, three or four years ago, when as a defence counsel I was fighting this fight against attacks on bias, I recall how frequently those who we would categorize as “plaintiffs’ physicians”, came up to me and confidentially thanked me for the battle and suggested to me that there weren’t many of them who were willing to put up with the type of abuse that was seeming to go on now in our court rooms. If we want these doctors to be helpful and cooperative, we will have to treat them as we want to be treated. It is a very old axiom, but one that remains true even today.