Moustakis v. Agbuya,  voir dire heard October 17, 2023 in the Ont SCJ

Full Decision

This was a voir dire heard by The Honourable Madam Justice L. Merritt. It involves a challenge by the plaintiff to one of the defence experts. Counsel for the defendants asked Merritt J. to qualify Dr. Michael Ford as an orthopaedic surgeon with experience in chronic pain and somatic symptom disorder; and the diagnosis, prognosis, causation and impairments relating to functionality and impairment. Counsel for the plaintiff opposed and asked the Court to exercise its jurisdiction as a gatekeeper and exclude Dr. Ford’s evidence, arguing that the cost of admitting his evidence outweighs its probative value.

After pointing out that a lack of independence and impartiality can go to the admissibility of an expert’s evidence (White v. Burgess), her Honour notes that in addition to common law requirements, litigation experts have a duty to provide impartial evidence as mandated by subrules 4.1.01(1) and sub (2):

“The duty to the court overrides the obligation to the party calling them. If the expert is unwilling or unable to fulfill that duty they are not qualified and should be excluded. Once the expert attests or testified to recognizing that duty, the burden shifts to the party seeking to exclude the expert evidence.”

Among the things that can disqualify an expert are having a direct financial interest in the proceedings, a close familiar relationship with the litigants, exposure to professional liability if the opinion is rejected or situations where the expert has assumed the role of an advocate. This last part is what Merritt J. ruled on.

In the case at hand, Dr. Ford had authored two reports of the plaintiff that according to Merritt J. strayed outside his area of expertise significantly:

“In this case I find that Dr. Ford has gone outside his expertise and assumed the role of an advocate in his reports… both of Dr. Ford’s reports show his willingness to go beyond his expertise and his answers in re-examination on the voir dire concerning malingered pain syndrome is an example of Dr. Ford’s willingness to venture into an area where no other experts, either plaintiff or defence, have gone.”

While the “ultimate conclusion as to the credibility or truthfulness of a witness is for the jury and is not the proper subject of expert opinion”, it seems that Dr. Ford spent quite a considerable amount of time trying to paint the plaintiff as a fraud. Dr. Ford commented repeatedly on how “persistent symptomatology after a minor traumatic event” is a side-effect of litigation and the hope for compensation; he cited from the Journal of Risk and Insurance on Fraud Detection on how 25-75% of insurance claimants “show some evidence of fraud or BUILD-UP”, and then boldly stated that the plaintiff’s presentation “cannot be explained on any basis other than a psychiatric conversion disorder.” Needless to say, an orthopaedic surgeon such as Dr. Ford is not medically qualified to give a psychiatric diagnosis. Of significance, Dr. Ross, the defence psychiatrist who would have been in a much better position to make this diagnosis, chose not to.  

Merritt J. noted that this was both outside of his area of expertise, and constituted a challenge to the plaintiff’s credibility, which was for the jury to decide:

“As in the Bruff-Murphy case, the whole tone of the report is a reliable predictor of Dr. Ford’s testimony. He goes out of his way to make points that are clearly meant to challenge Cindy’s credibility. He goes beyond a lack of mere independence and appears to have adopted the role of advocate for the defence.”

This is a critical finding, and the rejection of Dr. Ford as an expert can be used by the plaintiff bar to challenge his reports, especially when he ventures outside his area of expertise.

Written by

Corina Bachmann is the principal of Bachmann Personal Injury Law. With offices in Simcoe, Lindsey and Toronto, Corina and her staff provide representation for Ontarians injured through the negligence of others.