This recent appellate decision from the Divisional Court reminds civil litigators, and jurists, that qualifying an expert is not a one-and-done exercise performed ahead of the expert giving testimony, and that it is something that needs to be continually assessed in the event new evidence comes forward to question the veracity of that qualification.<\/p>\n
Everyone readily understands that no witness can testify as an expert unless and until the trial judge is satisfied that the proposed witness satisfies certain criteria.\u00a0 This is part of the trial judge\u2019s gatekeeping function.<\/p>\n
However, what is sometimes overlooked, as was the case here during a Small Claims Court trial before a Deputy Judge, is that this gatekeeping function is a continuing one, such that the issue of the expert\u2019s qualification should be continually monitored throughout the trial, and if circumstances warrant, the expert should be disqualified.\u00a0<\/p>\n
In this case, the appellate court ruled that the trial judge erred in not recognizing significant problems with the expert\u2019s qualifications as his testimony was unfolding, such as several damning admissions that included an admission that he didn\u2019t even write his entire report, he did not have expertise in some of the aspects of the claim, and that he may have misrepresented some things in his report.<\/p>\n
For reasons unexplained, none of the foregoing circumstances triggered the trial judge to reassess the expert\u2019s qualifications.\u00a0 To make matters worse, the trial judge often prevented further enquiry by the opposing counsel when some of these matters came to light. \u00a0The appellate court reasoned that it was not only inappropriate for the judge to curtail further questioning, the trial judge should have demanded further enquiry on their own initiative. \u00a0Failing to do so was an abrogation of the judge\u2019s gatekeeping function.<\/p>\n
The trial judgment was set aside, and a new trial ordered.<\/p>\n