A recent environmental case illustrates how expert witnesses that are too eager to please can destroy themselves and their client.
Who is a good expert?
WC I Waste Conversion Inc. v. ADI International Inc. was a breach of contract dispute between partners who developed a composting facility for the Island Waste Management Corp. in Brookfield, Prince Edward Island. WCI was the composting expert; ADI brought financial muscle and access to bonding. After years of litigation, WCI was awarded $4,306,339 plus costs for damages caused by ADI’s “greed”, bad faith, and repudiation of the construction and operating contracts. Much of the case turned on expert opinion on the design and how to manage acidic feedstock. ADI offered two experts; WCI offered one. Justice Campbell found that ADI’s legal counsel had “played a significant role” in “tailoring” its expert reports; as a result, he found them useless:
An expert report is only of benefit to the court if it is independent and unbiased and is not unduly influenced by someone having a pecuniary interest in the contents of that report. ADI’s involvement in drafting and manipulating Hallee’s report destroyed any credibility the report may have had…
The judge found it particularly galling that the experts blindly repeated their client’s views, which ADI then purported to rely on.
Kelly adopted similar false assumptions… he received that erroneous information from ADI… and did not do any of his own due diligence. It Kelly confirmed on cross-examination that he was not an expert on the iteration system or the containers. He only put that information in his reports because ADI asked him to do so…
Experts must strenuously guard their independence.
An expert is to provide an independent and unbiased opinion to the court in respect of a subject matter with which the expert is more familiar than the court. When an expert fails to guard his independence and allows himself to be prostituted to the will of his client, he sacrifices his role as an expert before the court.
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This reminds me of something Richard Feynman said:
"I say that’s also important in giving certain types of government advice. Supposing a senator asked you for advice about whether drilling a hole should be done in his state; and you decide it would be better in some other state. If you don’t publish such a result, it seems to me you’re not giving scientific advice. You’re being used. If your answer happens to come out in the direction the government or the politicians like, they can use it as an argument in their favor; if it comes out the other way, they don’t publish it at all. That’s not giving scientific advice.
…
So I have just one wish for you — the good luck to be somewhere where you are free to maintain the kind of integrity I have described, and where you do not feel forced by a need to maintain your position in the organization, or financial support, or so on, to lose your integrity. May you have that freedom."
An interesting case and end result, thanks for posting it.
I have cut out the statement and posted it on my bulletin board:
“An expert is to provide an independent and unbiased opinion to the court in respect of a subject matter with which the expert is more familiar than the court. When an expert fails to guard his independence and allows himself to be prostituted to the will of his client, he sacrifices his role as an expert before the court.”
It makes one wonder where all those reports will go in the future – that is the ones written by the “experts” that are not 100% in agreement with what the client’s legal team is seeking?
Thanks also for adding the RSS feed capability!