The Scope of an Expert Witness' Testimony

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We can get hurt at any point in time.

When it comes to compensation and coverage, the circumstances around your accident are scrutinized by insurers in an effort to validate and sometimes minimize your coverage.

Sadly there are many fraudulent claims submitted yearly here in Canada and it only makes the fight for compensation that much harder.

Case example

In this case of Khelifa v. Sunrise Property, the plaintiff (Faiza Khelifa) was injured while trying to utilize the fire-escape apparatus outside of her third floor apartment. She was already on the fire-escape when allegedly she realized that it was covered with ice and snow. When she turned around to get back inside, she slipped and fell, falling most of the way down to the ground level, losing consciousness.

There were no witnesses to this incident.

The defendants in this case do not believe that the plaintiff's claim is genuine in nature. They believe that her reasons for being on the fire-escape were of a questionable nature; that her presence there pointed to a botched suicide attempt. They further dispute her claim that the fire-escape had any ice or snow.

Overall, they do not believe that she fell, they believed that she jumped.

There are many facets of a personal injury case, and procedures that are followed in an effort to procure a fair and lawful judgement. The dispute to be settled was whether or not Dr. Feinstein (who specializes in neuro-psychiatry) should be allowed to testify and provide video evidence depicting the fall on the stairs and its resulting injury.

Dr. Feinstein was an expert witness retained by the plaintiff to assess and verify the extent of her injuries. His diagnosis was that Faiza Khelifa suffered from PTSD, significant depression and post-concussion disorder which can follow a traumatic brain injury.

However, the only condition that wasn't pre-existing and was a direct cause of the accident was the latter.

Also in his expert opinion, he attributed the injury to the back of the plaintiff's head with injuries that occur when falling from a height and striking an edge and would produce a visual depiction of how it could happen. The plaintiff argued that with Dr. Feinstein's extensive knowledge and experience in brain injury and trauma, he should be able to offer this visual depiction to accurately convey his opinion.

This is what was being disputed by the defence.

The defence disagreed and was of the opinion that it would be out of his professional realm and highly prejudicial to offer a hypothetical depiction of what occurred and offer any opinions on a matter that had yet to be decided (whether or not the plaintiff jumped or fell).

An expert witness' role is very important in personal injury cases. They can either corroborate or disprove evidence during a trial in an effort to validate their client's claim based on their expertise.

They are not required to have witnessed the accident; their only requirement is to honestly and accurately offer a professional opinion on whether or not evidence brought forward aligns itself with whatever evidence gathered at the scene.

This all has to be done during a specific time and in a clear and concise manner. The Judge in this instance had to act as a referee, ensuring that the scope and quality of testimony that was presented was within legal parameters.

Upon reviewing the evidence, the Judge noted an issue that was not even recognized by the defence; the timing of this admission of this opinion. It had not been entered into evidence during the pre-trial motions and there was no reason for the late inclusion.

Aside from the issue of lateness, the Judge felt that Dr. Feinstein's opinion of the mechanics behind the injury would be irrelevant as there were other expert witnesses (engineers who would be better qualified on asserting probable cause) who would offer similar testimony.

Dr. Feinstein's insertion of this video depiction and hypothesis (that the injury was sustained from the plaintiff's head hitting the edge of an object) would be unfairly inflammatory. He is recognized as an expert witness and not a liability witness.

The Judge therefore denied the additional testimony of Dr. Feinstein on matters that he deemed outside the scope of his expertise.

Any insertion of demonstrative evidence (the video) has to have a solid foundation of accuracy based on either an actual video of the incident or a depiction based on information from an expert in that field who would have taken measurements, pictures of the apparatus, etc.


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