Table 1

Major Lessons for Experts

Potential dangerCasesLesson for expert
Usurping the role of fact finderR. v. Mohan4Admitted evidence must be relevant and necessary, come from a properly qualified expert, and not be subject to an exclusionary rule.
Bringing in nonvalidated novel scienceR. v. J.-L.J.5
Daubert v. Merrell Dow Pharmaceuticals1
Theories that are novel science undergo special scrutiny; they must be tested, subjected to peer review, have known error rates and standards, and have general acceptance.
Hearsay being used by expertsR. v. Abbey6
R. v. Lavallee7
Experts can use hearsay and other information not in evidence, but the fact-finder decides the weight of the opinion and whether the information used is valid.
Reviewing reports with lawyersMoore v. Getahun8It is acceptable to review reports with lawyers and make edits, but the expert must still be fair, objective and non-partisan.
Reports entered into proceedings as an aide memoire but not as evidenceMoore v. Getahun8Information that is not put into evidence cannot be considered.
Being in a dual roleWesterhof v. Gee Estate15Expert opinions can come from different types of experts:
  Participant experts are treating physicians.
  Non-party experts are independent evaluators seeing the evaluee for purposes other than the litigation.
  Litigant experts are independent evaluators seeing the evaluee for the litigation.
Addressing biasWesterhof v. Gee Estate15
White Burgess Langille Inman v. Abbott and Haliburton Co.17
Daggitt v. Campbell16
The courts are very concerned with bias:
  There is risk of advocating for the party who hired the expert.
  Special care must be taken to admit only unbiased evidence.
  Experts must strive to provide evidence that is fair, objective, and nonpartisan, although it need not necessarily be seen to be impartial.
  Past bias can potentially taint an expert's credibility.
Ghost writingKushnir v. Macari19Experts should strive to write all portions of their reports and not employ ghost writers.
Charging of cancellation feesKushnir v. Macari19Experts should charge reasonable fees for cancelled appointments.