[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. I made my ruling based on the evidence before me at the time. The case proceeded and the jury ultimately delivered a verdict awarding the plaintiff damages and that verdict has not been appealed. However, in view of the serious allegations that had been made against Riverfront I felt that Riverfront should be given an opportunity to respond before I delivered the full reasons for my ruling. Subsequent to the conclusion at the trial, counsel for Riverfront appeared before me and called evidence and made submissions.
[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.
[22] When asked whether he knew who had highlighted the portion of the report under the heading “Impression” Dr. Lipson stated that Linda would have done this to direct his attention to that portion of his report and to suggest that “perhaps” he would like to change the wording. He said it was a common occurrence for Linda to suggest changes to his reports.
[27] Dr. Lipson agreed that although the served report dated March 11, 2005 could not have been prepared by Riverfront on that date because it included Dr. Lipson’s list of goods and services required, that he did not send to Riverfront until March 13, 2005. He also admitted that his recommendation about future goods and services as set out in his email of March 13, 2005 differed in some respects on what appeared in the served report. He had expressed the opinion that nortriptylin 25 mg. was necessary for a “minimum of two years” whereas in the served report the words “up to 5 years” were added which was not his opinion. Similarly he had recommended a fitness membership without a time limitation, however, in the served report the recommendation was for “fitness membership for 5 years”. He testified that these changes must have been made by Riverfront without his authority.
[28] Based on the evidence before me on the voir dire I ruled that Dr. Lipson was not entitled to testify as an expert witness on behalf of the defendant.
[56] Linda is a medical secretary who has worked at Riverfront for 14 years. Her title is Director of Quality Control. Her job involves reviewing reports received from the experts to assess grammar, style and format to ensure that they are free of any errors, inconsistencies, and redundancies and that the questions posed by the client are answered. After she reviews the reports, they are given to Dr. Levy or Anna for final proofreading. If she thinks that a report contains inconsistencies or redundancies she would raise it with Dr. Levy. Linda testified she never recommends a change to a report to make it more beneficial to the client who retained Riverfront.
[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 assessing 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.