…Judges have been refusing to allow plaintiff lawyers in the personal injury (auto insurance) context to adduce prior adverse judicial findings of bias as a means to challenge insurer medico-legal defence experts. The consequent complete failure in terms of oversight and accountability as it relates to expert evidence in this context has recently been chronicled in a series of investigative reports in the mainstream press (The Globe & Mail and National Post, for example; see below). It is ironic that when investigative reporters want to get a handle on this or that expert’s propensity for bias, they matter-of-factly look to prior judicial findings of partisanship as their barometer. Yet, stunningly, judges are refusing to take the same common sense approach to this issue. It beggars belief that what the Committee describes as “good practice” is seen by the judiciary as so utterly improper that “seeking to introduce” prior judicial findings of bias can now attract punishment in the form of extra costs for wasting the courts’ time:
“Second, there was the fact that Plaintiff’s counsel sought to cross-examine Dr. Rezneck on findings made about his reports in previous cases. I ruled that cross-examining an expert about judicial findings in previous cases where that expert had testified was not within the scope of proper cross-examination. The argument on this ruling, and the consideration of the cases that counsel for the Plaintiff filed consumed a couple of hours of court time. Raising this issue unnecessarily lengthened the trial time, and it should also be considered in a minor way in assessing the costs.” (Sharma v Stewart, 2017, ONSC)
When judges refuse to allow prior adverse judicial comments to be adduced as a means to challenge expert impartiality, they are conflating a judicial expectation of impartiality (in accordance with the Form 53) with a judicial presumption of impartiality. But as Master Short pointed out, without enforcement of the Form 53 promise such a presumption is unsafe. Taking for granted that long-time partisan experts will honour their Form 53 promise to be impartial is judicial folly of the worst sort.