Expert Witness Testimony - United States And Canada

Richard M Wise, Wise Valuation Advisors

An expert is someone who possesses specialised technical or scientific skills, knowledge or experience, and whose role it is to assist the court on technical issues that are beyond the knowledge of a layperson, including a trier of fact. Even though the expert is retained by the client (or by counsel on behalf of the client), his or her primary duty is to the court.

United States requirements and procedures applicable to expert witnesses

In US federal civil matters, the basic rules are contained in the 2018 Federal Rules of Evidence and the Federal Rules of Civil Procedure.

US Federal rules of evidence

Rules 702–706 relate to expert witnesses:

  • Rule 702: Testimony by Expert Witnesses;
  • Rule 703: Bases of an Expert’s Opinion Testimony;
  • Rule 704: Opinion on an Ultimate Issue;
  • Rule 705: Disclosing the Facts or Data Underlying an Expert’s Opinion; and
  • Rule 706: Court-Appointed Expert Witnesses.

US Federal rules of civil procedure

Rule 26 of the Federal Rules of Civil Procedure – Duty to Disclose; General Provisions Governing Discovery – sets out the following:

  • requirements for disclosure, including electronically stored information;
  • reports and testimony of expert witnesses;
  • basis upon which a federal trial judge can disallow opinion testimony by
    lay witnesses;
  • determination of whether testimony by experts meets the minimum standards; and
  • identification of the bases of opinion testimony by an expert.

Rule 26(a)(II)(B) of the Rules of Civil Procedure requires that the contents of an expert report include the following:

  • The basis for the expert witnesses’ opinions, including the scope of the work carried out, a description of the fundamental principles applied, and the reasons for the such opinions.
  • The expert witnesses’ opinions that will be testified to at trial.
  • Other information and data considered, including the materials reviewed by the expert in preparing his or her report and arriving at the expert’s opinion, including documents and data produced by the parties in the course of the litigation as well as independent research performed by the expert.
  • Exhibits that will be used by the expert witness and a description of the expert’s scientific, technical or other specialised knowledge that would enable the witness to assist the court in understanding the evidence or in determining a fact that is at issue.

The expert witness is also required to disclose the following:

  • publications authored by him or her during the immediately preceding 10 years;
  • expert testimony given during the past four years; and
  • expert’s compensation.

Rule 703, Bases of an Expert’s Opinion Testimony, provides as follows:

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

The Daubert Standard in the US

In addition to these legal requirements, two US Supreme Court cases have established the basic precedent for the admissibility of expert witness testimony in federal cases:

  • Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579, 113 S.Ct. 2786 (1993); and
  • Kumho Tire Co v Carmichael, 526 US 137, 119 S.Ct. 1167, 1179 (1999).

In Kumho Tire the US Supreme Court further clarified that the Daubert factors may apply to non-scientific testimony, meaning “the testimony of engineers and other experts who are not scientists”.

In another decision, General Electric Co v Joiner, 522 US 136 (1997), the US Supreme Court clarified Daubert, holding that an appellate court may still review a trial court's decision to admit or exclude expert testimony. The standard of review for this inquiry was the “abuse of discretion standard”.

Daubert

In Daubert, the United States Supreme Court addressed the scientific evidence presented by the expert witness, including its admissibility. The court ruled that the trial judge must ensure that expert witness testimony is built upon a reliable foundation and is relevant to the issue(s) in dispute. Kumho Tire expanded the gatekeeping function of the trial judge under Daubert to all expert witness testimony that is based on scientific, technical or other specialised knowledge, including technical evidence based on experience.

In Daubert, seven members of the US Supreme Court agreed on the following guidelines for admitting scientific expert testimony:

  • Judge is gatekeeper: under Rule 702, the task of gatekeeping, or assuring that scientific expert testimony truly proceeds from scientific knowledge, rests with the trial judge.
  • Relevance and reliability: the trial judge must ensure that the expert’s testimony is “relevant to the task at hand” and is based “on a reliable foundation”. Concerns about expert testimony cannot be simply referred to the jury as a question of weight. Furthermore, the admissibility of expert testimony is governed by Rule 104(a) of the Federal Rules of Evidence; hence, the judge must find it more likely than not that the expert’s methods are reliable and reliably applied to the facts at hand. 
  • Scientific knowledge = scientific method/methodology: a conclusion will qualify as scientific knowledge if it can be demonstrated that it is the product of sound scientific methodology derived from the scientific method.
  • Relevant factors: the US Supreme Court defined “scientific methodology” as the process of formulating hypotheses and then conducting experiments to prove or falsify the hypothesis. The court also provided a non-dispositive, non-exclusive, flexible set of general observations (ie, not a test) that it considered relevant for establishing the validity of scientific testimony:
  • empirical testing: whether the theory or technique is falsifiable, refutable and/or testable;
  • whether it has been subjected to peer review and publication;
  • the known or potential error rate;
  • the existence and maintenance of standards and controls concerning its operation; and
  • the degree to which the theory and technique are generally accepted by the relevant scientific community.

Application and Influence of Daubert in the US and Canada

Although the Daubert standard is now the law in the United States Federal Court and over one-half of the states in the US, the Frye standard (adopted from a 1923 decision of the United States DC 10th Circuit appellate court remains the law in certain jurisdictions, including the states of California, Illinois, Maryland, New Jersey, Pennsylvania and Washington. The court stated:

Just when a scientific principle or discovery crosses the line between experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone, evidential force of principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

 

Frye was followed in only a few dozen cases after it was decided.

A Frye hearing is to determine whether to admit evidence derived from a new or novel scientific theory or methodology. In Frye, the Court held that such evidence should be excluded unless this new or novel theory or methodology is generally accepted in the particular scientific community.

Although trial judges have always had the authority to exclude inappropriate testimony, prior to Daubert trial courts often preferred to allow juries hear evidence proffered by both sides.

The US Supreme Court in Daubert held that Rule 702 of the Federal Rules of Evidence superseded the Frye rule. In summary, the two standards (Daubert and Frye) primarily govern the admissibility of expert evidence in the United States.

Any decision by the Court of Appeal that a piece of evidence is inadmissible under Daubert would be binding on District Courts within the former’s jurisdiction.

To attack expert testimony as inadmissible, counsel may bring pretrial motions, including motions in limine. The motion in limine may be filed prior to trial, although counsel may seek to bring the motion during trial as well.

A motion attacking expert testimony should be brought within a reasonable time after the close of discovery if the grounds for the objection can be reasonably anticipated. The hearing should be held well in advance of the first time a case appears on a trial calendar.

It is noted that US courts have recognised the extension of Daubert principles to other non-scientific areas, such as economic and valuation evidence. Two appellate court decisions that considered this type of evidence are:

Frymire-Brinati v KPMG Peat Marwick, 2 F.3d 183 (7th Cir. 1993); and

Newport Ltd v Sears, Roebuck & Co, 6 F.3d 1058, 1064 (5th Cir. 1993).

Canada

The Supreme Court of Canada expressly adopted the Daubert standard in two cases: R v Mohan4 and R v JL-J.

In JL-J , the Court considered the development of US law regarding expert witness testimony, noting the US Supreme Court’s rejection of the Frye standard and its replacement with the Daubert standard. While the Canadian Supreme Court noted that “Daubert must be read in the light of the specific text of the Federal Rules of Evidence, which differs from our own procedures”, the Supreme Court of Canada also stated (in the same sentence) that “the US Supreme Court did list a number of factors that could be helpful in evaluating the soundness of novel science.” The Canadian Supreme Court then applied the Daubert standard to the decision of the Quebec Court of Appeal in R. v JL-J, the latter having held that greater liberality should be applied by the court in hearing (pro-defence) scientific evidence in a criminal case. The Supreme Court of Canada rejected this decision, reinstating the defendant’s conviction.

The Ikarian Reefer in the UK

In 2005, the UK House of Commons Science and Technology Committee recommended the creation of a Forensic Science Advisory Council to regulate forensic evidence in the UK, observing:

The absence of an agreed protocol for the validation of scientific techniques prior to their being admitted in court is entirely unsatisfactory. Judges are not well-placed to determine scientific validity without input from scientists. We recommend that one of the first tasks of the Forensic Science Advisory Council be to develop a “gate-keeping” test for expert evidence. This should be done in partnership with judges, scientists and other key players in the criminal justice system, and should build on the US Daubert test.

The Law Commission for England and Wales proposed a consultation paper (No. 190) to adopt a criterion such as the Daubert standard to help reform the law of evidence with respect to the admissibility of scientific evidence.

Influence of the Ikarian Reefer

A 1993 UK decision by Mr Justice Cresswell, commonly known as The Ikarian Reefer, has been referenced in a number of decisions as providing certain guidelines for expert evidence and setting out specific duties of the expert witness (Cresswell principles). The first four duties referred to in the decision are:

  • Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
  • An expert witness should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within his expertise.
  • An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts that could detract from his concluded opinion.
  • An expert witness should make it clear when a particular question or issue falls outside his expertise.

Justice Cresswell also suggested that if an expert’s opinion is not properly researched because he considers that insufficient data are available, then this must be stated with an indication that the opinion is no more than a provisional one.

The last two duties mentioned by Justice Cresswell in The Ikarian Reefer have been recognised and repeated by Canadian courts as they relate to the importance of pretrial disclosure. These duties are:

  • If, after the exchange of reports, an expert witness changes his view having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate, to the court.
  • Where expert evidence refers to photographs, plans, calculations, analyses, measurements, surveys, reports, or similar documents, these must be provided to the other party at the same time as the exchange of reports.

An expert rendering an opinion that will be filed in a UK c9ourt (or a court in certain of the British Commonwealth countries) should generally include the following paragraph:

I confirm that I understand my overriding duty to the Court and that I must assist the Court on matters within my expertise. I believe that I have complied with this duty. I have prepared this Opinion having regard to the laws of [Jurisdiction] on the instruction of expert witnesses as set out in the Judgment of Cresswell J in the case of The Ikarian Reefer [1993] 2 Lloyds Rep 68, 81-82, Comm. Ct., Q.B. Div). I have read and understood the relevant paragraphs of that case and confirm that this Opinion is consistent with those principles and I have conducted myself accordingly at all stages of my involvement in this case. The assumptions upon which my Opinion is based are, in my view, reasonable and likely assumptions. I confirm that insofar as the facts stated in my Opinion are within my own knowledge, I have made clear what they are and I believe them to be true, and that the Opinion I have expressed represents my true and complete professional opinion.

In 2005, the UK House of Commons Science and Technology Committee recommended the creation of a Forensic Science Advisory Council to regulate forensic evidence in the UK, observing:

The absence of an agreed protocol for the validation of scientific techniques prior to their being admitted in court is entirely unsatisfactory. Judges are not well-placed to determine scientific validity without input from scientists. We recommend that one of the first tasks of the Forensic Science Advisory Council be to develop a “gate-keeping” test for expert evidence. This should be done in partnership with judges, scientists and other key players in the criminal justice system, and should build on the US Daubert test.

The Law Commission for England and Wales proposed a consultation paper (No. 190) to adopt a criterion such as the Daubert standard to help reform the law of evidence with respect to the admissibility of scientific evidence.

Canadian requirements applicable to expert witnesses

While the Canadian and US requirements regarding expert witness testimony are very similar and the respective courts in each country will sometimes look to the other country’s case law for guidance or assistance, the Canadian rules in some areas can be more specific and demanding. In fact, in various jurisdictions and venues in Canada, the expert witness who will be testifying in court is required to sign a certificate or an acknowledgment of the duty to provide evidence in relation to the particular court’s proceedings.

 In the common-law provinces (ie, all Canadian provinces other than Quebec), the legal rules forming the Code of Civil Procedure are contained in statutes, such as the Judicature Acts, or Rules of Practice, or Rules of Court. Such legislation, inspired by English legislation, unified the courts of common law and the courts of equity.

In the courts created by the Canadian Parliament, detailed and often complex rules of practice also regulate most aspects of practice and procedure. In Quebec, the Code of Civil Procedure, an Act containing over 2,000 articles, codifies most of the procedural rules and fulfils a similar function to rules of practice with which it shares many characteristics. Its origins can be traced to the French Ordonnance de la Procédure of 1667. Judicial precedents are another important source of law in civil procedure, primarily in the Canadian common law provinces. Most Canadian provinces have their own rules of evidence and civil procedure, which are substantially similar to those of the Province of Ontario. Ontario has enacted major revisions based on comprehensive reform studies undertaken by legal scholars in that province, which other provinces have adopted or are adopting.

Province of Ontario

Major changes were made in 2010 to the Ontario Rules, including Rule 53.03 of the Rules of Civil Procedure with respect to expert witnesses, following frequent complaints that “too many experts are no more than hired guns who tailor reports and evidence to suit the client’s needs.” 

These Rules require the following (which other Canadian jurisdictions have essentially adopted).

Rule 53.03(2.1), Contents of Expert Report

  • Expert’s name, address and area of expertise.
  • Expert’s qualifications and employment and educational experiences in his/ her area of expertise.
  • Instructions provided to the expert in relation to the proceeding.
  • Nature of opinion being sought and each issue in the proceeding to which the expert’s opinion relates.
  • Expert’s opinion respecting each issue and, where a range of opinions is given, a summary of the range and reasons for the expert’s own opinion within that range.
  • Expert’s reasons for his/her opinion, including:
    • a description of factual assumptions on which the expert’s opinion is based;
    • a description of any research conducted by the expert that led him/her to form opinion; and
    • a list of every document relied on by the expert in forming his or her opinion.
    • Acknowledgment of Expert’s Duty (Form 53), signed by the expert.

The 2010 amendments to Ontario Rule 53.03 did not create new duties but rather codified and reinforced basic common law principles.

The adversarial process, particularly through cross-examination, typically provides effective tools to deal with cases where there is an air of reality to a suggestion that counsel improperly influenced an expert witness. Judges have not shied away from rejecting or limiting the weight to be given to evidence of an expert witness where there is a lack of independence or impartiality.

Consultation and collaboration between counsel and the expert are essential to ensure that the expert understands the duties reflected by Rule 4.1.01 and contained in the Form 53 acknowledgment of the expert’s duty. Review by counsel of the expert’s draft report enables counsel to ensure that the report:

  • complies with the Rules of Civil Procedure and rules of evidence;
  • addresses and is restricted to relevant issues; and
  • is written in a manner and style that is accessible and comprehensible.

The Ontario Court of Appeal had addressed certain major issues in a case regarding the preparation and use of expert reports (in the context of a medical malpractice lawsuit) and whether, among other things, it may have been improper for counsel to assist an expert witness in the preparation of an expert’s draft report.

The appellate court emphasised that expert evidence is a significant and controversial feature of modern civil litigation. It constitutes an exception to the rule that witnesses may testify only as to facts – not opinion – and that it is exclusive prerogative of the trier of fact to draw inferences from proven facts. The expert evidence exception operates where specialised knowledge is required to determine the implications of the bare facts and where the trier of fact is not competent to draw the necessary inferences unaided.

Expert evidence has become more significant with the explosion of scientific knowledge and technical innovation. Many cases have been described as a “battle of experts”.

The Ontario Court of Appeal acknowledged that the use of expert evidence poses difficult issues that have been the focus of consideration in civil justice reform, including:

  • How do we control the added costs associated with explosion of expert witnesses?
  • How do we ensure that a party has a fair opportunity to challenge an adverse expert witness?
  •  How do we ensure that expert witnesses offer unbiased scientific or technical opinions based upon their training and expertise, rather than act as “hired guns” who present unbalanced opinions unduly favouring the party that retains them?

The Court referred to the oft-cited passage from The Ikarian Reefer:

Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by exigencies of litigation.

An expert witness should provide independent assistance to the Court by way of objective, unbiased opinion in relation to matters within his expertise. An expert witness . . . should never assume role of an advocate.

Example: Expert Witness Requirements – Rules of Civil Procedure, Ontario, Canada 53.03

1       A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference scheduled under sub-rule 50.02 (1) or (2), serve on every other party to the action a report, signed by the expert, containing the information listed in sub-rule (2.1). O. Reg. 438/08, s. 48; O. Reg. 170/14, s. 17.

2       A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pretrial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in sub-rule (2.1). O. Reg. 438/08, s. 48.

2.1    A report provided for the purposes of sub-rule (1) or (2) shall contain the following information, as listed below.

  • The expert’s name, address and area of expertise.
  • The expert’s qualifications and employment and educational experiences in his or her area of expertise.
  • The instructions provided to the expert in relation to the proceeding.
  • The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
  • The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
  • The expert’s reasons for his or her opinion, including,
    • a description of the factual assumptions on which the opinion is based,
    • a description of any research conducted by the expert that led him or her to form the opinion, and
    • a list of every document, if any, relied on by the expert in forming the opinion.
    • An acknowledgement of expert’s duty (Form 53) signed by the expert. O. Reg. 438/08, s. 48.

Rule 4.1.01 was then added to the Ontario Rules of Civil Procedure.

This Rule states that it is the duty of every expert to provide opinion evidence that is fair, objective and nonpartisan. Opinion evidence that is within the expert’s area of expertise may be provided and such additional assistance as the court may require. Experts who are providing reports must sign a Form 53. This Form must be attached to the expert’s report. A Form 53 is an acknowledgement of the expert’s duty to the court, which prevails over any obligation owed by the expert to the party by whom he or she was engaged.

Consultation and collaboration between counsel and the expert are essential to ensure that the expert understands the duties reflected by Rule 4.1.01 and contained in the Form 53 acknowledgment of the expert’s duty. Review by counsel of the expert’s draft report enables counsel to ensure that the report.

                                                                 ***

The adversarial process, particularly through cross-examination, typically provides effective tools to deal with cases where there is an “air of reality” to a suggestion that counsel might have improperly influenced an expert witness. Judges have not shied away from rejecting or limiting the weight to be given to evidence of an expert witness where there is a lack of independence or impartiality.

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