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.