The Plaintiff in this case wanted to be his own medical expert and rely on his own reports during a summary judgment motion in a medical malpractice lawsuit alleging that the defendant doctors were negligent in failing to diagnose his Lyme Disease on a timely basis, or at all.
The defendant doctors asked the court to decide whether it was proper for the Plaintiff to be qualified as an expert, and to be able to rely upon his own medical opinion, notwithstanding his medical degree.
The court put the question on the motion as follows: is the Plaintiff “able and willing to carry out the ‘duty to the court to give fair, objective and non-partisan opinion evidence?’”
The Plaintiff’s position was that he was able and willing to fulfil the duty to the court to be fair and objective, and pointed out that the substantive contents of his reports were presented in a balanced manner, coming mostly from reference materials spanning a number of decades. The Plaintiff further submitted that to the extent bias may be present, it should go to weight, not his qualification as an expert.
The court acknowledged that the threshold to qualify an expert is not a high one, and it would be very rare to disqualify an expert, but in the circumstances, the Plaintiff had to be disqualified because:
- The Plaintiff was a party to the action, with a direct financial interest in its outcome. This seriously impeded his ability to be fair and unbiased;
- Relying on Marshall v. Jackson, 2021 ONSC 2361, 154 O.R. (3d) 715, “a party cannot function as his or her own expert, regardless of the professional qualifications of the party, since expert evidence must be ‘fair, objective and non-partisan;”
- Regardless of the foregoing, the Plaintiff’s reports alone showed that the Plaintiff was incapable or unwilling to give opinion evidence that was fair, objective and non-partisan. The court cited, for example, a few passages from the Plaintiff’s report which demonstrated the Plaintiff’s bias, such as one part that describes the evidence of the defendants’ experts as “BLATANT PERJURY,” asking the court to “impeach” those doctors and that he will be seeking perjury charges against those experts. The court said that the “the lack of objectivity and partisan nature of the contents of the paragraph quoted above are obvious;” and
- Parts of the Plaintiff’s opinion reports were forms of advocacy, such as where the Plaintiff referred to the pleadings. The court stated that the Plaintiff conflated the role of an advocate with that of an expert witness.
The court ultimately concluded that it was “clear” that the Plaintiff was “unable or unwilling to fulfill the primary duty of an expert witness.” Calling a document an “expert report” didn’t make it an expert’s report.
Although this case focused in on the medical sphere, given the rationale used it is arguably applicable to any sphere of expertise.
Beazley v. Johnston et al., 2022 ONSC 1739
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1739/2022onsc1739.html