Canada: Shoot To Kill: Expert Bias Is An Issue Of Admissibility

Class Action Case Update: Justice Perell's recent decision in Wise v Abbott Laboratories, Limited, 2016 ONSC 7275 addressed a number of key areas of interest for the class action bar. Full series updates can be found below. 

Where there are concerns that an opposing party's expert is biased, one course of action has been to argue that their evidence be given "less weight". According to a recent decision by Justice Perell, in Wise v Abbott Laboratories, Limited, 2016 ONSC 7275, there is no longer any room for such half-measures. Based on Wise, challenging experts on their independence is an all or nothing proposition: if the apparent bias is sufficiently clear, then it can result in the disqualification of the expert, but it cannot result in an otherwise admissible opinion being given less weight.

Factual Background

Wise was a proposed product liability class action concerning AndroGel", a topical ointment marketed for the treatment of conditions associated with testosterone deficiency. The Wises commenced a proposed class action against Abbott Laboratories, Limited, Abbott Products Inc., Abbott Products Canada Inc., and Abbvie Products LLC (collectively, "Abbott"), claiming that AndroGel" led to an increased risk of serious cardiovascular ("CV") events.

Among other claims, the Wises alleged that Abbott fabricated a condition known as "LowT" to refer to naturally occurring side effects of aging experienced by men, such as feeling sad or grumpy, deterioration in the ability to play sports, decreased libido and falling asleep after dinner. The Wises alleged that Abbott targeted its marketing for AndroGel" at aging men with no genuine medical condition, putting them at an increased risk of harm, despite the product being essentially useless to them.

Abbott brought a pre-certification motion for summary judgment to dismiss the claim. The motion turned on Abbott's argument that the Wises could not prove general causation, i.e. that AndroGel" did in fact lead to an increased risk of serious CV events. Predictably, this was the subject of extensive expert evidence — too much of it, in fact.

Too Many Experts? Better to Ask Forgiveness Than Permission

Section 12 of Ontario's Evidence Act caps the number of opinion witnesses that a party can examine at three, unless the presiding judge grants leave for a greater number. Abbott, without seeking leave in advance, supported its summary judgment motion with a "deluge" of reports from seven expert witnesses. Justice Perell held that a great deal of the expert evidence was redundant, and that, if Abbott had asked for leave before the argument of the summary judgment motion, he probably would have refused it. However, because Abbott waited until the hearing to seek leave, Justice Perell held that it was "too late and not fair to shut the evidentiary barn door."

The surprising takeaway is that this places the burden on the party compliant with the rules to force a decision on the other party's leave requirement at an earlier stage of the proceeding (e.g. by bringing a motion to exclude). A Court may be reluctant to throw out expert evidence after the experts have already been cross-examined and after factums have been submitted referring to their testimony. There may still be some recourse with respect to costs, however. Justice Perell concluded his reasons by warning that that he was inclined to "substantially reduce" Abbott's costs award, because of its failure to seek leave at an earlier stage.

Bias is an Issue of Admissibility, Not Weight

In Wise, both parties made aggressive arguments that the other party's experts were biased and lacked the requisite independence. The plaintiffs criticized Abbott's many witnesses for ties to the pharmaceutical industry (such as receiving research funding from testosterone manufacturers, including Abbott) and a history of promoting testosterone treatments (including AndroGel" specifically). The independence of the plaintiffs' experts was also challenged, due to their history of advocating against the use of AndroGel" treatments, and their "obvious anti-pharmaceutical agenda". However, the parties did not go so far as to argue that the experts should be disqualified; instead, they argued that their evidence should be given "no weight".

Justice Perell held that the parties arguments were "analytically misconceived":

In making their respective arguments, having cocked their rifle with strident submissions that their opponent's experts are partial, dependent, and biased, the Wises and Abbott respectively do not pull the trigger to have the witnesses disqualified and excluded...


...I do not agree with the parties that I can admit the evidence and then give it diminished weight; my choices are to admit the evidence if I conclude that the expert is qualified to exclude it in its entirety if I conclude that that the expert is not qualified to give opinion evidence.

Opinion evidence is inadmissible unless the expert is "qualified". Recently, in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, the Supreme Court elaborated that one of the components of being qualified is being independent, objective and impartial: a proposed expert witness who is unable or unwilling to fulfill his or her duty to the Court is not properly qualified to perform the role of an expert. In Ontario, this duty is codified by rule 4.1.01.

Justice Perell interpreted White to mean that bias and independence are strictly issues of admissibility, rather than weight. He clarified that there are other reasons why admissible expert evidence might be given reduced weight, such as if the evidence is not persuasive or helpful.

Justice Perell declined to disqualify any of the expert witnesses in Wise, despite finding that there was some merit to the criticism of the experts' independence. He characterized two of Abbott's experts as "professional witnesses", and held generally that the attacks on the experts' independence had "factual traction". However, he held that this "factual traction" was not sufficient to warrant disqualification. Justice Perell appeared to regard the threshold for disqualification as a high one. He noted that a pre-existing relationship with an expert does not automatically render the evidence of the proposed expert inadmissible. There must be a "realistic concern that the expert's evidence should not be received because the expert was unable or unwilling to comply with his or her sworn duty."


The approach to expert evidence in Wise disincentives attacks against experts' independence, except in the clearest of cases where an expert's apparent bias is sufficiently egregious to warrant their disqualification. The book may not be closed on this issue, however. A bright line distinction between admissibility and weight arguably does not follow from the Supreme Court of Canada's decision in White, which refers to impartiality as being relevant both to admissibility and weight.

In the end, Justice Perell's approach to admissibility versus weight appears to have had little impact on the outcome, as none of the experts were prepared to attest that Androgel" caused serious CV events (rather, they could only say that it was associated with serious CV events). This may have influenced his decision to admit the experts' evidence, since he was not going to rely on it anyways. Because the plaintiffs bore the burden of proof, Justice Perell granted Abbott's summary judgment motion and dismissed the Wises' proposed class action.

Wise v Abbott Laboratories, Limited Class Action Case Update Series

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions