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Erroneous Expert Can Be Sued
March 15, 2007 permalink
Dr Charles Smith, previously excused from civil liability by a court decision, can be sued for his erroneous evidence leading the incarceration of a mother accused of killing her own child.
Louise Reynolds spent two years in jail and lost a child to adoption on account of Smith's evidence. Children's aid societies currently employ expert witnesses known to favor CAS over families in almost all cases. Full permission to sue for false testimony in child protection cases could curb many of these abuses.
Top Ontario court grants wrongly accused woman right to sue pathologist
TORONTO -- The Ontario Court of Appeal has paved the way for a woman who was wrongly jailed for her daughter’s death to sue the pathologist whose allegedly shoddy work sent her to jail.
Former Kingston, Ont., resident Louise Reynolds appeared before the province’s highest court last month to seek the right to sue Dr. Charles Smith.
A forensic pathologist at Toronto’s Hospital for Sick Children at the time, Smith initially determined Reynolds’s seven-year-old daughter Sharon died of multiple stab wounds in 1997, but a later autopsy concluded the girl had been mauled by a pit bull.
A lower court denied Reynolds the right to sue Smith because he was protected by witness immunity, but a three-judge Ontario Court of Appeal panel decided that decision should be up to a trial judge.
“Essentially they decided that Dr. Smith, the claim for witness immunity that he wanted to make, couldn’t be brought at this stage,” said Peter Wardle, a lawyer for Reynolds.
“He would have to wait until there was a trial in which the judge would have all the facts and would be albe to make a decision based on those facts.”
The high court also agreed with the defence’s claim that the problems pertained more to what they called Smith’s “negligent” and “deeply flawed” role as pathologist than to his testimony as a Crown witness at her preliminary hearing.
“The claim that Louise was making was one that was not about his testimony, but was about his role in investigating a suspicious death which we think is a pretty key conclusion,” Wardle said.
“We think it’s going to make it very difficult for him again to make this argument in a lawsuit.”
Wardle said the decision could open the door “a little wider” for others who have been wrongly accused and want to hold pathologists and other experts accountable before the courts.
“Certainly the Court of Appeal was very encouraging in terms of how they dealt with our theory and our causes of action against Dr. Smith,” he said.
Some 44 of Smith’s cases, some dating back to the early 1990s, are currently under review by Ontario’s chief coroner to determine if his conclusions can be supported.