Friday, January 25, 2013

Expert Opinion or Advocacy, TLABC Medical-Legal Conference, Mexico, 2013

These are my rough notes from the Trial Lawyers Association of British Columbia Medical Legal Conference. Hopefully they give an idea of the presentation which I suspect could be accessed in fuller detail from the presenter or the TLABC itself.  Obviously, if one is interested they should seriously consider attending a future TLABC conference.  I've found them extremely informative and likely to help me serve my patients whose illness involves them legal dispute. Lesra Martin was a naturally talented teacher and made lucid what at first appeared obtuse and obscure. I'm sorry my notes don't do justice to his wonderful presentation.

Invisible Line in the Sand: Expert Opinion or Advocacy
Lesra N Martin, Martin and Martin Lawyers, Kamloops, BC
Graduated University of Toronto, and Law Degree from Dalhousie University
Was Crown Prosecutor in Kamloops, BC now practices primarily personal injury

TLABC Medical-Legal Conference, Mexico , 2013

Last week attended conference by Dr. O Shaughnassey, Psychiatric and Psychological Aspects, then Hon. Peter Wilson, presented 
- I thought they'd leaked my talk to them but instead I will summarize what they said and add to what I said, but this told me the role of the expert was a central issue

When I hired an expert I get reply
"dr x assumed the role of an advocate"
"Dr. X has provided opinions that go beyond the scope of his area of expertise"

"The report is speculative and argumentative"

When I talk to the family physician he responds "i'm an advocate for my client, and he is expected to be an advocate for his client". There is a clear difference between being an advocate for the client and having a report declared inadmissable 

Principles of law
Supreme Court of canada
- relevance
-necessity in assissting the trier of fact
-absence of any exclusionary rules
-a properly qualified expert
-RV Mohan 1994 
paragraph 16-8 issue of relevance is a qustion of law it is role of the trial judge to conduct a cost/benefit analysis.  
paragraph 19-22 - expert opinion must be necessary ---in regard to whether or not the information provided falls outside the knowledge and expertise of the jury.

Courts caution experts about dx of malingering 

Must be properly qualified expert

R.v Abbey 2009 ONCA
-refined Mohan criteria - in stage 1 , expert must be properly qualified
- trial judge is the gatekeeper - insure that the expert is relevant 'prior' to judge deciding jury may hear the expert

Expert opinion for his or her opinion
Description of any research done to perform their opinion
List of documents that formed opinion 

2010 Mazur
expert is required to state facts and assumptions
rule 11-6  expands under old rule  - know the basis of decision

Avoiding common pitfalls
- They must not become advocates , but express their opinion in objective and impartial way and not present argument
It's not the experts role to look for collaborating evidence in the documents.  it is not the role of expert to draw inference and making editorial comments

Medical Experts should be abreast of current academic literature and maintain certification.  
Encouraged lawyers to seek experts who are leaders in the field not just available

Exclusionary rules - Mohan - 
-expert has met all the requirements set out under Mohan
- it may not be that 'credentials' are sufficient, must also have specific expertise

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