Canada: Who's A Good Expert Witness?

Last Updated: January 4 2010
Article by Dianne Saxe

Monarch Construction v. Axidata1 and WCI Waste Conversion Inc. v. ADI International Inc.2 (www.canlii.org/en/pe/pesctd/doc/2008/2008pesctd40/2008pesctd40.html) are both classic cases of competing experts, and how the courts choose between them. They provide excellent warnings for any expert witness in an environmental case.

The Monarch Construction lawsuit arose from an old computer punch card facility on Commander Boulevard, Toronto, a street already famous for pollution precedents. The case had enough complications for a soap opera: three lawsuits, two third-party claims, four counterclaims, and $4 million in damages, plus a flock of lawyers and consultants. The trial pitted the original card manufacturer (Control Data), against the management group (Axidata) that bought the division in 1986.

Both Control Data and Axidata had stored waste toluene, from cleaning the presses, in an underground concrete storage tank. Unfortunately, the tank was designed (and approved by the landlord and regulators) only for emergency spill containment, not for long-term storage. Over the years, much toluene escaped, polluting the property and its neighbours.

Judge Frank ruled that Control Data had printed 90% of the cards, had probably put 90% of the toluene into the tank, and should pay 90% of the cleanup costs. Axidata, which printed the last 10% of the cards and took a long time to do the cleanup, had to pay the remaining 10%. The landlords were cleared of responsibility.

The decision is a fascinating one for anyone engaged in complex, multi-party cleanups, where facts are unclear, decisions take forever, consultants can't agree and contamination keeps showing up. And it's an encouraging one for plaintiffs. The judge took a refreshingly commonsense approach to the Control Data's obstacles and objections, brushing aside lost documents, faded memories, delays and honest mistakes.

Judge Frank was equally direct in her evaluation of the three experts who testified on hydrogeology: Richard Lewis, from ERM in Boston, for Axidata; and Dennis Lafleur, from Aqua Terre, and Roger Woeller, from WESA, both for Control Data. Judge Frank's reasons for preferring Mr. Lewis' evidence are instructive:

Richard Lewis ... has a M.Sc. in geology and is a Certified Professional Geologist through the American Institute of Professional Geologists, specializing in hydrogeologic evaluations of hazardous waste releases. He provides his services throughout the world. He has expertise specific to hazardous waste investigations and remediation practices and has given expert evidence with respect to these. He has extensive experience in transport modeling including modeling of toluene. His experience with underground storage tanks extends over thirty years. 

[49] ... The first [report] is with respect to the cause of toluene contamination and the course it took traveling through the subsurface. The underlying assumptions in this report accord with the evidence. The analysis is transparent and the assumptions upon which it is based are clearly articulated. While a number of errors in the report were identified and acknowledged by Mr. Lewis, they do not undermine the reliability of the report generally...

[51] ... Control Data submits that the weight to be given his evidence with respect to the reasonableness of the remediation and its costs should be limited by the fact that ERM took over the implementation of the RAP in 2002 ... [and] continues to be involved in its implementation...

[52] I agree .. that Mr. Lewis' evidence regarding the implementation and costs of the final stages of the RAP and the ERAP must be examined carefully, not as the evidence of an independent expert, but rather as someone defending his own position. ...

[53] ... Dennis Lafleur ...has a M.Sc. in civil engineering. He is the president and principal shareholder of Aqua Terre Solutions Inc., which provides a range of environmental services including site assessments and remediations, primarily for petroleum companies. He has written on the matter in issue, that being the remediation of ground water containing hydrocarbons.

[54] Mr. Lafleur's report lacks transparency in that it does not disclose all of the underlying assumptions or evidence relied on nor the method by which he arrived at his conclusions. While his oral evidence was of some assistance in providing the information necessary to test the validity of his conclusions, it was not sufficient. Further, his assumptions did not all accord with the evidence and were arrived at with inadequate background information. Mr. Lafleur had no information with respect to the use of the tank prior to the 1986 sale by Control Data. My impression is that in giving his evidence Mr. Lafleur was more anxious to support the conclusions in his report and establish that he was right than he was to assist the court with truth finding. ...

[55] Roger Woeller was retained by Control Data to review Mr. Lewis' reports. He has a M.Sc. in hydrogeology and is registered as a professional geologist in a number of provinces. Like Mr. Lewis, he has provided services worldwide. ...While Mr. Woeller is obviously highly qualified, based on the evidence before me, he does not have the same degree of directly relevant experience on the matters in issue as Mr. Lewis

[56] The extent to which I could place reliance on Mr. Woeller's evidence was further undermined by what I find to be his taking on the role of advocate. His oral evidence was far more supportive of Control Data's position than was his report. .... Overall, where their evidence conflicts, I prefer the evidence of Mr. Lewis.[emphasis added]

On appeal to the Court of Appeal, Judge Frank's decision was upheld in full.

WCI Waste Conversion Inc. v. ADI International Inc. (www.canlii.org/en/pe/pesctd/doc/2008/2008pesctd40/2008pesctd40.html) also illustrates how expert witnesses who are too eager to please can destroy themselves and their client. This 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, Dr. Hallee and Dr. Kelly. Justice Campbell found that ADI had "played a significant role" in "tailoring" their expert reports; as a result, he found them useless:

[224] I have an even greater concern with respect to the overall credibility and independence of that report....David Crandall of ADI was intricately involved in outlining, drafting, revising, and editing Dr. Hallee's "expert" report...

[ 228] 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...

[243] 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. That is what has happened in this case. ... It is my conclusion that the Kelly report has no credibility and is of no value to this court and I reject it.

The judge found it particularly galling that the experts blindly repeated their client's views, which ADI then purported to rely on as expertise:

[213] Notwithstanding that Dr. Hallee was relying strictly on ADI for information about the aeration system, and notwithstanding that Dr. Hallee told ADI that he was not an expert in aeration systems, and had not read the ECS operating manual, ADI was interested in receiving confirmation from him as some outside expert (so-called) that the aeration system had to be modified. ...

[236] Kelly adopted similar false assumptions... he received that erroneous information from ADI... and did not do any of his own due diligence. 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:

[242] ...as opposed to being an expert's report upon which the court can rely for assistance, the report is, in large measure, a reflection of ADI's manipulation of information driven by the objective of "tying WCI to responsibility" for the facility's deficiencies, while exonerating ADI. Kelly relinquished his authorship to ADI. In critical subject areas under review at this trial, he did not provide expert analysis but instead adopted "facts" and viewpoints fed to him by ADI without conducting any due diligence or applying independent thought or assessment to the information provided. 

[244] Any time an expert is engaged, the party seeking the expertise must provide background information and documentation together with an explanation of the theories in issue or the question upon which the expert is to opine. It is not uncommon for the expert to request additional information or clarification. However, when the party engaging the expert seeks to control or direct or unduly influence the conclusions reached in the expert's report, that party has diminished the credibility and reliability of the report, and of itself. When an expert succumbs to such influences, he or she compromises their own integrity and the report rendered is of little or no value.

WCI won, largely because Justice Campbell felt he could trust the independence of their experts: 

[131] I found MacPherson's assumptions to be reasonable and realistic and his calculations to be accurate. His testimony was clear and direct and he was unshaken on cross-examination. For example, at one point during cross-examination, ...counsel for ADI suggested to MacPherson, "Yes, and you followed the instructions Mr. Kerrigan gave you." MacPherson immediately replied, "I don't follow anybody's instructions. That's the kiss of death in this business Mr. O'Neil." I note this comment and its sharp contrast to the conduct of the two experts ADI used... 

[246] ... Mr. Gould presented an independent and unbiased assessment of the matters he considered and upon which he was asked to report. ... he does not strain to make statements favorable to WCI, nor ... does he ... shy away from or minimize statements that may reflect negatively on the design criteria or operating performance of WCI. I found his responses on cross-examination to be direct and frank and the explanations provided for in his conclusions were rationally supported by the facts he reviewed. He did not become an advocate for WCI as Hallee and Kelly did for ADI.

An expert who gives up his/her independence to become an advocate loses all credibility, and becomes worse than useless.

Footnotes

1.Monarch Construction Limited v. Axidata Inc., 2009 ONCA 166 (CanLII)

2.WCI v. ADI, 2008 PESCTD 40 (CanLII)

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.

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