[53] With respect to parties or witnesses, however, whether lay or expert, the dynamics of an adversarial system introduce pressures that leave the door open to conscious or even subconscious polarization. In situations where experts are regularly retained by either plaintiffs or defendants, financial considerations add to the potential for polarization. It is naive to assume, without more, that a medical expert who generates significant income from providing IME’ s for a particular “interest group” is completely immune to these pressures, whether they are acted on or not. It should also be recognized that the pressures may well increase in the presence of a large institution that regularly requires IME experts to provide opinions taking a particular view of the issues. While obvious instances of unreliable expert evidence may be infrequent, anytime an expert is less than honest, the potential for a just result is undermined.
The pressures facing medical experts which are inherent in an adversarial system are inevitably exacerbated in an IME setting where the party being examined (often the plaintiff) is cognitively or emotionally vulnerable, or where the person being examined has limited language skills or faces cultural inhibitions that impact on the assessment. Clearly one hopes that a medical expert will not only be qualified to conduct a competent assessment but will also be independent and unbiased in formulating his/her opinion. But what if he or she is not? Experiences in many settings involving interactions between persons in positions of authority and those in positions of vulnerability (e.g. residential schools, prisons and seniors homes) demonstrate that the greater the imbalance of power and the less accountability there is in the system, the more potential there is for abuse. How does a plaintiff with functional or memory impairments challenge the evidence of a highly trained,articulate and experienced expert? The optics of forcing a vulnerable party to be examined by an opposing expert who will be able to testify from a position of power and prestige and depriving the party of any independent record of the event, are not good. Justice must not only be done but be seen to be done. Experts can and should be given a mandate of independence. This cannot be confused with granting them a presumption of independence.
[76] The Court expects and relies upon frank and unbiased opinions from its Experts. This is a major sea change which requires practical improvements to past opaque processes. How are long time plaintiffs’ and defendants’ experts to be “trusted” to change their stripes? At the initial stages skilled, licenced professionals clearly must be taken at their word that on principal they take their Form 53 Undertaking to Court seriously. They are clearly promising to bring a new, transparent and objective mind set to the drafting of their reports and to their subsequent testimony.
[77] In this case I am obliged to consider a proposed expert who has on at least 3 occasions had his opinions disregarded by the Court for bias and advocacy for the Defence. He has been criticized by a judge of this Court for delivering his evidence as “an advocate for the party calling him as a witness.”