[1] In the course of this jury trial I ruled that Dr. Frank Lipson, who had conducted a defence medical of the plaintiff, not be permitted to testify as an expert witness on behalf of the defence. Dr. Lipson had testified that a medical report purportedly signed by him had not been signed by him. He stated that his signature stamp had been affixed to the report without his authority by an individual at Riverfront Medical Evaluations Limited (Riverfront) the company who had retained him to conduct the defence medical. […]
[2] I have deliberated for a very long time before delivering these reasons. Although the action out of which the problem arose has long been concluded, this case raises vexing issues as to what role may be properly played by organizations such as Riverfront in the formulation of an expert witness’ opinion.
[43] Twenty percent of their physicians conduct their assessments off site in which case the physicians will prepare their reports and send it to Riverfront by fax or other electronic means. Riverfront performs its quality control function and sends the report to the physician for comments if required. After consultation with the physician, the report will be prepared on Riverfront’s letterhead and signed by the physician or as in the case at bar a signature stamp is affixed to the report, which is sent to the referring client.
[44] In many cases Riverfront has a signature stamp of the doctor, which the doctor authorizes them in writing to use. Dr. Levy produced a letter dated January 5, 2004 in which Dr. Lipson authorized Riverfront to utilize a signature stamp/electronic signature when issuing assessment reports – “when I am unable to directly provide my signature”. The authorization provides that signature stamp would only be used “once I have approved the final copy of my report”.
[88] It is stating the obvious that an expert’s report delivered for the purpose of compliance with the Rules of Civil Procedure and the Evidence Act is an extremely important document. Anyone involved in the preparation of such reports must know that courts place a very strong reliance on the contents of these reports and that the proper administration of justice demands that these reports accurately reflect the opinion of the expert who has written them. The requirement in the Rules of Civil Procedure and the Evidence Act that the expert sign the report is intended to provide assurance that the statements in the report are those of the expert.
[100] Expert witnesses play a vital role in proceedings before the courts both in civil and in criminal matters. In personal injury actions in particular, the evidence of the expert witness may be the determining factor in the resolution of the plaintiff’s claim In the case of health practitioners, section 52 of the Evidence Act provides under certain conditions, the report may be filed in place of the viva voce evidence of the health practitioners. The court is entitled to assume that the report represents the impartial opinion of the expert.
[101] In my view Riverfront in this case, went far beyond what can be considered a proper “quality control” function. While I am not prepared to find that they were motivated by a desire to assist the defendant, nonetheless I find their actions constituted an unwarranted and undesirable interference with the proper function of an expert witness.
[102] The function of an expert witness is to provide an independent and unbiased opinion for the assistance of the court. An expert witness’ evidence should be and should be seen to be the independent product of the expert uninfluenced as to form and content by the exigencies of litigation.[2] This principle has often been cited with approval in our courts, and has been considered a factor to be considered in asessing the weight to be given to the expert’s testimony. It has occasionally been treated as the basis for the disqualification of the witness entirely.[3]
[103] In my view any activity that may tend to detract from this all-important objective diminishes the integrity of the litigation and trial process and should be met with appropriate sanctions designed to send a clear message that such conduct will not be tolerated.