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Expert Witness Can Be Liable
Published in the March 2007 issue of Litigation Notes - View Article
Until recently it had generally been viewed that a person giving expert testimony at a hearing likely could not be liable in negligence to an opposing party in the proceeding. Expert witnesses, like witnesses of fact, have long been protected by the principal of witness immunity for statements made while giving sworn evidence. However, the Ontario Court of Appeal has now opened the door to such claims in limited circumstances in a high profile decision involving a forensic pathologist.
Louise Reynolds was charged with the second degree murder of her seven year old daughter, Sharon. The charges were laid after Dr. Charles Smith, a pathologist, conducted a post mortem examination and provided police with an oral opinion that the cause of death was blood loss resulting from multiple stab wounds. The police did not inform Dr. Smith that a pit bull terrier was located in the basement of Ms. Reynold’s home where the body was found. He subsequently became aware of this fact during the police investigation, but continued to assert that the cause of death was more than eighty stab wounds caused by a knife or scissors. At the preliminary hearing into the criminal charges, Dr. Smith testified that his opinion was that Sharon’s wounds were not caused by dog bites. Ms. Reynolds was consequently committed to trial for murder and spent almost two years in jail before being released on bail. Her other children were removed from her care by the authorities. Some time later, Sharon’s body was exhumed for a second post mortem by Dr. Smith and other pathologists at the instance of the provincial Deputy Chief Coroner. That autopsy resulted in a conclusion that at least some of Sharon’s injuries were dog bites. The crown subsequently withdrew the second degree murder charge.
Ms. Reynolds commenced an action against the police and Dr. Smith for negligent investigation of Sharon’s death and false imprisonment. The claims against Smith included a claim of misfeasance in a public office. The misfeasance claim was based in part on the failure of Smith to provide a written post mortem report as required by the Coroners Act until almost a year after Reynolds was charged. The claim also alleged that Smith negligently performed the initial autopsy in bad faith, with a view to securing a conviction. Smith moved to strike out Renolds’ statement of claim on the grounds that it failed to disclose a legal cause of action.
That issue reached the Court of Appeal, which decided that the claim against Smith should be allowed to proceed to trial. Significantly, the Court upheld the common law principle of witness immunity. While the Court held that this legal principle is continuing to evolve, it confirmed that any communication, even perjured testimony, made in the course of a judicial proceeding, cannot serve as the basis for a negligence (or other tort) claim. However, the court distinguished between expert investigation and expert testimony and found that Smith could be liable for negligence in connection with his activities prior to giving opinion evidence at the preliminary hearing. The Court took the view that delineating the boundary between investigation and testimony was a nuanced factual question that would need to be resolved at a trial on the basis of oral evidence and cross-examination. To succeed in striking out Ms. Reynold’s claim, Dr. Smith needed to prove that the claim of negligence in the post mortem and the claim of misfeasance by not complying with the Coroners Act were “impossible of success”. The court decided that both claims were capable of being proved at trial.
Consequently, in Canada (certainly in Ontario) an expert witness can potentially be liable for harm which that person’s testimony causes to a party to the hearing where the testimony was flawed due to negligent investigation or preparation.