• Objecting to Expert Evidence Based on Novel Science
  • June 23, 2015 | Author: Steve M. Vorbrodt
  • Law Firm: Singleton Urquhart LLP - Vancouver Office
  • In product liability and other personal injury cases, the courts will sometimes be asked to consider expert evidence based on theories that deviate from accepted standards in the scientific community. The polite term for such theories is “novel” science while the more informal term is “junk”.

    As expert witnesses play an increasing role in litigation, courts have become concerned that overreliance on expert evidence may threaten the role of the judge or jury. In a 1994 case, R. v. Mohan, the Supreme Court of Canada described this potential danger as follows:

    . . . dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, [such] evidence is apt to be accepted by the jury as being virtually infallible and having more weight than it deserves.

    The general test for admitting expert evidence set out in Mohan attempts to address this danger. To be admissible, the expert evidence must be relevant, necessary to the judge’s and/or jury’s understanding of the facts, not excluded under any other rule of evidence, and tendered by a qualified expert.

    For opinions based on novel science, the courts have imposed stricter controls and precautions by evaluating its reliability using another four-part analysis as follows:
    1. Can the theory or technique be tested? If so, has it been?
    2. Has the theory been peer reviewed and published? 
    3. Does the theory have a known or potential rate of error for the existence of standards? 
    4. Has the theory or technique found general acceptance?
    This test was first applied in 2000 by the Supreme Court of Canada in R. v. J.-L.J., a case in which the accused was charged with sexually assaulting two boys. In his defence, he tendered the evidence of a psychiatrist who said that the actual perpetrator was likely a serious sexual deviant. However, based on various tests, including a penile plethysmograph, the psychiatrist claimed that the accused showed no such deviant personality traits. After applying the above four factors, the Court decided that, while the accused’s expert used a test that had been recognized as a therapeutic tool, it had never been used as a forensic tool. On this basis, the expert’s evidence was excluded.

    British Columbia courts have subsequently used the same test for admitting novel science as evidence. In a 2007 B.C. Supreme Court case, Taylor v. Liong, the defendant objected to evidence from one of the plaintiff’s experts who linked trauma to the onset or exacerbation of multiple sclerosis. This expert’s opinion was described by another expert as “a simple compilation of disconnected facts and unsupported assertions.” After applying the J.-L.J. criteria, the B.C. Court found that the expert’s theory was not reliable and his evidence was not admitted.

    Four years later, in a B.C. Supreme Court personal injury action, Bialkowski v. Banfield, the plaintiff applied to introduce expert evidence based on quantitative electroencephalography analysis (QEEG) which recorded electrical activity in the brain that was afterwards computer analyzed. The defendant objected to the admission of the QEEG analysis by a neuropsychologist, claiming that he was not qualified in this area and that the results of QEEG testing were unreliable.

    The Court found that QEEG was a novel science warranting special scrutiny. It also found that while that the neuropsychologist was qualified to give an opinion on the repercussions of brain injury, he was not trained or qualified with respect to QEEG testing or analysis. Other courts had previously rejected similar evidence due to its unreliability. Accordingly, based on the principles established in J.-L.J. and Mohan, the plaintiff’s expert evidence was inadmissible.

    Parties hoping to have expert evidence based on novel science excluded in court need to address the J.-L.J. test carefully. In reaching conclusions about the admissibility of such evidence, courts have, among other approaches, examined whether the scientific theory has been accepted in other cases and evaluated conclusions and methodologies in peer reviewed articles discussing a particular theory.

    Despite the decisions cited above, expert evidence based on a new scientific theory may still be accepted in court. In J-L.J., the Supreme Court of Canada encouraged flexibility in the application of the test by cautioning, “A case-by-case evaluation of novel science is necessary in light of the changing nature of our scientific knowledge: it was once accepted by the highest authorities of the western world that the Earth was flat.”