Finessing a Medical Expert’s Qualifications: From Professional Communities’ Boundaries to Personal Character

Authors

Patrick Garon-Sayegh, Université de Montréal, Faculty of Law

Document Type

Article

Abstract

This article examines the kinds of arguments that can be made in debates regarding whether or not an expert is properly qualified to critique the work or opinions of another expert. Since these debates routinely occur in both legal and political arenas, a more fine-tuned sense of their argumentative dynamics can be fruitful for reasoning through them. This article is built around the analysis of a decision which concerned the admissibility of a physician’s testimony on the medical standard of care in a malpractice case. A detailed parsing of the arguments in that decision lays the groundwork for a theoretical discussion in which broader themes relating to experts’ qualifications are drawn out. The discussion focuses on two elements present in the decision, which can serve to buttress an expert’s claim to being properly qualified: community belonging and personal character.

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This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Garon-Sayegh, Patrick. "Finessing a Medical Expert’s Qualifications: From Professional Communities’ Boundaries to Personal Character." Osgoode Hall Law Journal 62.1 (2025) : 9-66.
DOI: https://doi.org/10.60082/2817-5069.4096
https://digitalcommons.osgoode.yorku.ca/ohlj/vol62/iss1/2

References

1. Assistant Professor, Faculty of Law, Université de Montréal. Thanks to Trudo Lemmens, Jean-Christophe Bédard-Rubin, and all anonymous reviewers for their thoughtful comments on previous versions of this text. All errors or omissions are mine.

2. See generally Victor Karl Magnússon, “Experts, Democracy, and Covid-19” (2022) 3 Philosophy of Medicine 1, DOI: https://doi.org/10.5195/pom.2022.84; Maya J Goldenberg, “Public Trust in Science” (2023) 48 Interdisciplinary Science Reviews 366, DOI: https://doi.org/10.1080/03080188.2022.2152243.

3. Cheesman et al v Credit Valley Hospital et al, 2019 ONSC 1907 [Cheesman].

4. R v Mohan, 1994 CanLII 80 (SCC) [Mohan].

5. White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 [WBLI]. See also R v Bingley, 2017 SCC 12 at para 13ff [Bingley].

6. See generally Lisa A Silver, “Back to Burgess: The Impact of the White Burgess Expert Evidence Regime in Alberta Decisions” (2019) 57 Alta L Rev 1, DOI: https://doi.org/10.29173/alr2562 (regarding expert evidence admissibility law’s recent evolution). See also David M Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed (Irwin Law, 2020) at 251-52; Eric V Gottardi et al, Qualifying and Challenging Expert Evidence (Emond, 2022) at 6-11 (regarding the broad arc of the evolution from Mohan to WBLI). For a recent application of the Mohan–WBLI test in a medical malpractice case, see e.g. Thompson v Handler, 2023 ONSC 5042 at paras 55-66.

7. For example, the rules that prohibit character evidence, oath helping, and hearsay. See generally Gottardi et al, supra note 6 at 51-53.

8. See WBLI, supra note 5 at paras 52-54; R v Abbey, 2017 ONCA 640 at para 48 [Abbey 2017].

9. See WBLI, supra note 5 at para 23; Abbey 2017, supra note 8 at para 48; Bingley, supra note 5 at paras 41-43.

10. See Bingley, supra note 5 at paras 14-15.

11. WBLI, supra note 5 at para 24. See also Bingley, supra note 5 at para 16.

12. Bingley, supra note 5 at para 16.

13. Bruff-Murphy v Gunawardena, 2017 ONCA 502 at para 37.

14. Bingley, supra note 5 at para 17; R v Sekhon, 2014 SCC 15 at para 46 [Sekhon].

15. Sekhon, supra note 14 at para 46.

16. Ibid.

17. Ibid at para 47.

18. WBLI, supra note 5 at para 19.

19. This is especially apparent in the Court of Appeal for Ontario’s formulation of the test in Abbey 2017. See Abbey 2017, supra note 8 at para 48. See also Sidney N Lederman, Michelle K Fuerst & Hamish C Stewart, The Law of Evidence in Canada, 6th ed (LexisNexis, 2022) at paras 12.54-12.55.

20. WBLI, supra note 5 at para 54.

21. See Lederman, Fuerst & Stewart, supra note 19 at para 12.52.

22. WBLI, supra note 5 at paras 23-24. Logical relevance is a matter of assessing whether or not the evidence has “a tendency as a matter of human experience and logic to make the existence or non-existence of a fact in issue more or less likely than it would be without that evidence”; it “sets a low threshold for admissibility and reflects the inclusionary bias of our evidentiary rules.” See R v Abbey, 2009 ONCA 624 at para 82, leave to appeal to SCC refused, 33656 (8 July 2010) [Abbey 2009]. Legal relevance, on the other hand, requires that evidence be “sufficiently probative to justify its admission despite the prejudice that may flow from its admission” (ibid).

23. WBLI, supra note 5 at para 49.

24. See Abbey 2017, supra note 8 at para 55.

25. See Lederman, Fuerst & Stewart, supra note 19 at paras 12.65, 12.154, 12.156, 12.160.

26. Ibid at para 12.164.

27. David M Paciocco, “Context, Culture and the Law of Expert Evidence” (2001) 24 Adv Q 42 at 43. See also Patrick Garon-Sayegh, “Expert Evidence Admissibility: From Rocky Highlands to Swampy Lowlands, via the Medical Standard of Care” (2022) 60 Alta L Rev 235 at 244-48, DOI: https://doi.org/10.29173/alr2716.

28. Paciocco, supra note 27 at 48-49, 51-52.

29. Ter Neuzen v Korn, 1995 CanLII 72 at paras 33-34 (SCC) [Ter Neuzen]. The Court of Appeal for Ontario noted that “[e]very medical practitioner…is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing.” See Sylvester v Crits et al, 1956 CanLII 34 at 13 (ONCA), aff’d 1956 CanLII 29 (SCC).

30. See Gerald B Robertson & Ellen I Picard, Legal Liability of Doctors and Hospitals in Canada, 5th ed (Thomson Reuters, 2017) at 502. Robertson and Picard note that “[n]ot only is expert evidence important in proving the plaintiff’s claim, in most cases it is essential” (ibid).

31. Ibid.

32. For a more detailed discussion of this point, see Garon-Sayegh, supra note 27 at 259-61.

33. Abbey 2009, supra note 22 at para 82.

34. See e.g. Lederman, Fuerst & Stewart, supra note 19 at 12.50. By way of example:

It is unlikely that a trial judge would conduct an extensive voir dire to determine whether the standard of care of a cardiac surgeon performing open heart surgery is a matter beyond the experience of the trier of fact or that an opinion of a qualified cardiac surgeon would assist the trier of fact to determine whether the operating surgeon breached the standard of care (ibid).

35. See e.g. Abbey 2009, supra note 22 at paras 112-14.

36. Ibid at para 114.

37. Parliament et al v Conley and Park, 2019 ONSC 3044 at para 21.

38. See Robertson & Picard, supra note 30 at 494. “Normally only doctors from the same specialty as the defendant will be qualified to give expert evidence as to the applicable standard of care” (ibid). Additionally, “[e]xpert witnesses must be qualified to opine on the appropriate standard of care expected of a physician through the eyes of a physician with the same background and training.” See Stepita v Dibble, 2020 ONSC 3041 at para 20 [Stepita]. Moreover, “[m]edical specialists are not properly situated to opine on the standard of care of specialists in other areas.” See Bafaro v Dowd, 2008 CanLII 45000 at para 33 (ONSC), aff’d 2010 ONCA 188.

39. See Ter Neuzen, supra note 29 at paras 33-42. See also Robertson & Picard, supra note 30 at 286-87; Jean-Louis Baudouin, Patrice Deslauriers & Benoît Moore, La responsabilité civile, vol 2, 9th ed (Yvon Blais, 2020) at 53-54. The standard of care must take into account a physician–defendant’s degree of specialization (ibid). See also Suzanne Philips-Nootens & Robert P Kouri, Éléments de responsabilité civile médicale: Le droit dans le quotidien de la médecine, 5th ed (Yvon Blais, 2021) at 58; Dieter Giesen, International Medical Malpractice Law: A Comparative Law Study of Civil Liability Arising From Medical Care (JCB Mohr (Paul Siebeck), 1988) at 161-62, DOI: https://doi.org/10.1017/S0731126500025518.

40. Robertson & Picard, supra note 30 at 454.

41. Ibid at 451.

42. See Timlick v Heywood, 2017 MBCA 7 at paras 46-47; Robinson v The Sisters of St Joseph of the Diocese of Peterborough, 1999 CanLII 2199 at para 1 (ONCA); Robertson & Picard, supra note 30 at 494-96.

43. On the purposive approach, see generally Paciocco, Paciocco & Stuesser, supra note 6 at 11-13. On flexibility and discretion exercised in context, see generally Lederman, Fuerst & Stewart, supra note 19 at paras 1.126-1.134.

44. On the distinction between rules and rules of thumb, see Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Duke University Press, 1989) at 316-17, DOI: https://doi.org/10.2307/j.ctv11317d7.17. A rule of thumb is a “good thing to try if you want to succeed” in a given task but “cannot be formalized, because the conditions of its application vary with the contextual circumstances of an ongoing practice” (ibid).

45. It has been noted that “[j]ust as a general practitioner will normally not be expected to have the knowledge and skill of a specialist, the same is true as between members of different specialties.” See Robertson & Picard, supra note 30 at 290.

46. Ibid at 495-96, nn 11-15 and accompanying text.

47. Ibid.

48. Cheesman, supra note 3 at para 27.

49. See e.g. Barber v Humber River Regional Hospital, 2016 ONCA 897 at paras 89-93.

50. Cheesman, supra note 3.

51. Ibid at para 8. It should be noted that, after a seventy-day jury trial, the jury found some of the defendants responsible for the plaintiff’s damages. See Cheesman et al v Credit Valley Hospital et al, 2020 ONSC 1729. The outcome of the case, however, is of no interest to the analysis that follows because I am interested in the court’s reasoning in the context of the pre-trial motion itself. Judges routinely make admissibility decisions in the lead-up to their final decision. See generally Glenn R Anderson, Expert Evidence, 3rd ed (LexisNexis Canada, 2014) at paras 12.6ff, 18.50, 19.46, 20.56.

52. Of course, I cannot possibly address all of the methodological and epistemological justifications for case studies within the space accorded to me here. Beyond the clarifications provided below, readers are invited to consult the significant amount of general social science scholarship that provides a sound basis for single-case studies and dismantles common misconceptions related to case study methods (many of these misconceptions being bound up with the suspicious, skeptical line of argument described above in the article). See generally Bent Flyvbjerg, Making Social Science Matter: Why Social Inquiry Fails and How It Can Succeed Again, translated by Steven Sampson (Cambridge University Press, 2001) at 9-24, 38-49, 66-87, DOI: https://doi.org/10.1017/CBO9780511810503; Bent Flyvbjerg, “Five Misunderstandings About Case-Study Research” (2006) 12 Qualitative Inquiry 219, DOI: https://doi.org/10.1177/1077800405284363; Lee P Ruddin, “You Can Generalize Stupid! Social Scientists, Bent Flyvbjerg, and Case Study Methodology” (2006) 12 Qualitative Inquiry 797, DOI: https://doi.org/10.1177/1077800406288622; Robert K Yin, “Case Studies” in James D Wright, ed, International Encyclopedia of the Social & Behavioral Sciences, 2nd ed (Elsevier, 2015) 194, DOI: https://doi.org/10.1016/B978-0-08-097086-8.10507-0; Charles C Ragin, “Case-Oriented Research” in ibid, 187, DOI: https://doi.org/10.1016/B978-0-08-097086-8.44004-3.

53. Note for instance that the bulk of Canadian scholarship and key jurisprudential milestones on expert evidence admissibility focus on the criminal law context. See generally Garon-Sayegh, supra note 27 at 255-59.

54. I use the label “Science Studies” for two reasons. First, I wish to avoid some of the disciplinary connotations, controversies, and programmatic projects that accompany more commonly used labels, most notably “Science and Technology Studies” (STS) and “Sociology of Scientific Knowledge” (SSK). See generally Martyn Pickersgill & Sheila Jasanoff, “ST(&)S: Martyn Pickersgill Talks with Sheila Jasanoff” (2018) 4 Engaging Science, Tech, and Society 320, DOI: https://doi.org/10.17351/ests2018.226; Sheila Jasanoff, “A Field of Its Own: The Emergence of Science and Technology Studies” in Robert Frodeman, ed, The Oxford Handbook of Interdisciplinarity, 2nd ed (Oxford University Press, 2017) 173, DOI: https://doi.org/10.1093/oxfordhb/9780198733522.013.15 [Jasanoff, “A Field of Its Own”]. Second, I use the label Science Studies because my analysis also draws on scholarship (mostly philosophical) that would not typically be considered as falling under STS or SSK, but which is nonetheless either directly concerned with scientific-medical-expert knowledge and practices or very relevant to the analysis of such knowledge and practices. This inclusive approach is vindicated by the fact that, even within scholarship that explicitly positions itself as being STS or SSK, Science Studies scholarship is typically characterized by a profound degree of interdisciplinarity and scientific/academic disciplines are themselves a topic of inquiry within Science Studies (ibid).

55. Numerous sources provide overviews of the Science Studies literature. For a number of succinct overviews relevant to this article (and written by prominent Science Studies scholars), see Wright, supra note 52. Also, see generally Steven Shapin, “Truth and Credibility in Science” in ibid, 673, DOI: https://doi.org/10.1016/B978-0-08-097086-8.85039-4; Brian Wynne & Michael Lynch, “Science and Technology Studies: Experts and Expertise” in ibid, 206, DOI: https://doi.org/10.1016/B978-0-08-097086-8.85023-0; Sheila Jasanoff, “Science and Law” in ibid, 156, DOI: https://doi.org/10.1016/B978-0-08-097086-8.86107-3; Harald Rohracher, “Science and Technology Studies, History of” in ibid, 200, DOI: https://doi.org/10.1016/B978-0-08-097086-8.03064-6; Thomas F Gieryn & Kathleen C Oberlin, “Science, Sociology of” in ibid, 261, DOI: https://doi.org/10.1016/B978-0-08-097086-8.85028-X; HM Collins, “Scientific Knowledge, Sociology of” in ibid, 308, DOI: https://doi.org/10.1016/B978-0-08-097086-8.85029-1. For a more encompassing overview, see generally Sergio Sismondo, An Introduction to Science and Technology Studies, 2nd ed (Wiley-Blackwell, 2010).

56. I refer readers to the numerous articles and books that are cited below, written by scholars such as Mariana Valverde, Annelise Riles, Lewis H LaRue, Gary Edmond, and David S Caudill.

57. See John Law, “STS as Method” in Ulrike Felt et al, eds, The Handbook of Science and Technology Studies, 4th ed (MIT Press, 2017) 31 at 32. “In one way or another STS almost always works through case studies…[and] if you want to understand STS—and STS theory—you need to read it through its cases” (ibid) [emphasis in original].

58. Annelise Riles, Collateral Knowledge: Legal Reasoning in the Global Financial Markets (University of Chicago Press, 2011) at 11, DOI: https://doi.org/10.7208/chicago/9780226719344.001.0001 [Riles, Collateral]. See also Annelise Riles, “A New Agenda for the Cultural Study of Law: Taking on the Technicalities” (2005) 53 Buff L Rev 973 at 985-86, 1018, DOI: https://doi.org/10.2139/ssrn.558605.

59. Riles, Collateral, supra note 58 at 13. Or, as said by the philosopher of science Ian Hacking, in a chapter discussing the particularities of dolomite, “[o]ne way to do philosophy is to take a careful look at some corner of the world [by taking an example that can]…illustrate, and serve as a parable for, a general point of great interest.” See Ian Hacking, The Social Construction of What? (Harvard University Press, 1999) at 186, DOI: https://doi.org/10.2307/j.ctv1bzfp1z.10.

60. Riles, Collateral, supra note 58 at 13.

61. Ludwig Wittgenstein, Philosophical Investigations, 4th ed by PMS Hacker & Joachim Schulte, translated by GEM Anscombe, PMS Hacker & Joachim Schulte (Wiley-Blackwell, 2009) at para 129. For a discussion of Wittgenstein’s work in relation to Science Studies, see generally Michael Lynch, “Extending Wittgenstein: The Pivotal Move from Epistemology to the Sociology of Science” in Andrew Pickering, ed, Science as Practice and Culture (University of Chicago Press, 1992) 215.

62. Riles, Collateral, supra note 58 at 13. The “something” of general interest taken up in this article, and regarding which insights are sought, is encapsulated in the questions posed at the beginning of the article, i.e.: How do we evaluate the work performed by experts to judge whether they acted appropriately? How do we evaluate whether this person is appropriately qualified to speak to this controversy and contradict or criticize this expert? And more specifically, how are these general questions inflected in the particular context of expert evidence on the medical standard of care in malpractice cases?

63. The mobilization of argumentative resources akin to those discussed in this article, for the purpose of supporting or undermining credibility (or cognitive authority), is well documented and discussed. For a case in which an expert witness’s leadership in one domain of expertise was mobilized to redefine the relevant domain and exclude the witness from it, see e.g. Alberto Cambrosio, Peter Keating & Michael Mackenzie, “Scientific Practice in the Courtroom: The Construction of Sociotechnical Identities in a Biotechnology Patent Dispute” (1990) 37 Soc Problems 275 at 280, DOI: https://doi.org/10.2307/800743. For another study expanding on the findings of this last study, see David S Caudill, “‘Sociotechnical’ Arguments in Scientific Discourse: Expert Depositions in Tobacco Litigation” (2005) 24 Rev Litig 1. For other works examining boundary-work strategies around expert witnesses’ qualifications, see Michael Lynch, “Circumscribing Expertise: Membership Categories in Courtroom Testimony” in Sheila Jasanoff, ed, States of Knowledge: The Co-production of Science and Social Order (Routledge, 2004) 161, DOI: https://doi.org/10.4324/9780203413845-9 [Lynch, “Circumscribing Expertise”]; Michael Lynch, “Expertise in Action: Presenting and Attacking Expert Evidence in DNA Fingerprinting Cases” (2007) 52 Villanova L Rev 925 [Lynch, “Expertise in Action”]. For an even broader perspective, sociologists of science Michael Mulkay and G Nigel Gilbert have produced detailed discourse analyses showing how scientists deploy various “repertoires” of “interpretative resources” (this last term tracks my use of the term “argumentative resources”) to justify their judgments vis-à-vis scientific knowledge claims. See G Nigel Gilbert & Michael Mulkay, Opening Pandora’s Box: A Sociological Analysis of Scientists’ Discourse (Cambridge University Press, 1984), DOI: http://dx.doi.org/10.2307/2070471; Michael Mulkay & G Nigel Gilbert, “Accounting for Error: How Scientists Construct Their Social World When They Account for Correct and Incorrect Belief” (1982) 16 Sociology 165, DOI: https://doi.org/10.1177/0038038582016002001.

64. Paciocco, supra note 27 at 62-63. This echoes the Science Studies-informed view that “[d]efinitions of expertise, like the development, mobilization, appropriation and representation of expertise, are always situated, always purposive.” See Gary Edmond & David Mercer, “Experts and Expertise in Legal and Regulatory Settings” in Gary Edmond, ed, Expertise in Regulation and Law (Routledge, 2004) 1 at 2, DOI: http://dx.doi.org/10.4324/9781315255668-1.

65. “Experts must not only be qualified generally but must also be qualified to express the specific opinion proffered.” See Stepita, supra note 38 at para 19, citing R v Orr, 2015 BCCA 88 at para 67. See also Gottardi et al, supra note 6 at 69.

66. See generally David S Caudill & Lewis H LaRue, No Magic Wand: The Idealization of Science in Law (Rowman & Littlefield, 2006). “[J]ust as idealizations of science are bolstered by downplaying or demonizing (as unscientific) the social aspects of science, idealizations of particular features of law often rely on demonizations of other aspects….Failure to recognize the realistic limits of law, as well as science, will result in impractical reform proposals” (ibid at 64). Also, see generally Lewis H LaRue & David S Caudill, “A Non-Romantic View of Expert Testimony” (2004) 35 Seton Hall L Rev 1 at 28, 43; David S Caudill & Lewis H LaRue, “Why Judges Applying the Daubert Trilogy Need to Know about the Social, Institutional, and Rhetorical—and Not Just the Methodological—Aspects of Science” (2003) 45 Boston College L Rev 1, DOI: https://doi.org/10.2139/ssrn.462740. “[T]rial judges who fail to understand and appreciate the…rhetorical aspects of science tend to (1) reject reliable, albeit pragmatic, science, (2) welcome unreliable, but authoritative, science, and (3) thereby create a body of legal science that is out of sync with mainstream science” (ibid at 6) [emphasis in original].

67. For a relatively recent example of another detailed analysis of a single case, see e.g. Emma Cunliffe & Gary Edmond, “Justice Without Science? Judging the Reliability of Forensic Science in Canada” (2021) 99 Can Bar Rev 65.

68. Note that it is important to distinguish between the case and the case study. The case is but an episode or moment in time which may or may not matter much in and of itself. The case study is distinct from the case in that it engages in substantive analysis. It is the substantive analysis that matters when doing a case study, and it is this analysis (along with the propositions/insights it generates) that can be transferred or applied to other cases qua episodes or moments (mutatis mutandis, of course, while always being mindful of context and relevant similarities and differences of particularities). See Yin, “Case Studies” in Wright, supra note 52. For a relevant discussion of relationships of similarity and difference built around a case study, see generally Brian Wynne, “Establishing the Rules of Laws: Constructing Expert Authority” in Roger Smith & Brian Wynne, eds, Expert Evidence: Interpreting Science in the Law (Routledge, 1989) at 23 (discussing how the trial process troubles and deconstructs taken-for-granted categories).

69. Cheesman, supra note 3 at para 4.

70. Ibid at paras 6, 31-34, 37, 106.

71. Note that a number of other physicians are defendants in the case, but only these four specialists are discussed in the admissibility decision under review. Ibid at para 5.

72. Ibid at paras 6, 31-38, 48, 63, 72, 79, 84-86, 106.

73. Ibid at para 6.

74. Ibid at paras 68, 74.

75. Ibid at para 14.

76. Ibid at paras 15-16, 18, 20.

77. Ibid at para 18.

78. Ibid at paras 15-20.

79. Ibid at paras 22, 30.

80. Ibid at paras 28-31.

81. Ibid at para 34.

82. Ibid at para 35.

83. Ibid at para 38.

84. Ibid at paras 84-85.

85. Ibid at para 36 [emphasis added].

86. Ibid at paras 35, 39.

87. See Robertson & Picard, supra note 30 at 288. The comparison of the defendant–physician to the reasonable physician, i.e., the standard, “is made with reference to the particular circumstances at the material time” (ibid).

88. See Cheesman, supra note 3 at para 39.

89. Ibid at paras 39-40.

90. Ibid at para 40. Note that the court said this even though it agreed that there was “no doubt that Dr. Gill had more limited experience at the time” (ibid).

91. Ibid at para 41.

92. Ibid at paras 42-45.

93. Ibid at para 42.

94. Ibid at para 43.

95. Ibid at para 45.

96. Ibid at para 44.

97. Ibid at paras 14, 50-56.

98. Ibid at paras 53-56.

99. Abbey 2009, supra note 22 at para 63. See also Anderson, supra note 51 at paras 13.10-13.12.

100. This happened in Cheesman: Dr. Gill opined on causation in his written reports even though he was not asked to provide an opinion on causation. See Cheesman, supra note 3 at paras 50-52, 55.

101. Ibid at paras 66-73.

102. Ibid at paras 74-92.

103. Ibid at paras 93-94.

104. Ibid at paras 95-102.

105. Ibid at paras 103-109.

106. As opined by the court, the “‘piling on’ argument is a refinement of their [the defendants’] duplication argument.” Ibid at para 74.

107. Such concerns are in line with section 1.04 of the Rules of Civil Procedure. See RRO 1990, Reg 194. Section 1.04 states that the “rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits” [emphasis added].

108. See Cheesman, supra note 3 at paras 66-67.

109. RSO 1990, c E.23. The Act states that “[w]here it is intended by a party to examine as witnesses persons entitled, according to the law or practice, to give opinion evidence, not more than three of such witnesses may be called upon either side without the leave of the judge or other person presiding” (ibid, s 12). Regarding the three cases cited by the defendants, in Suwary v Women’s College Hospital the plaintiff had already called upon two obstetricians to provide evidence, and then sought to call two additional obstetricians. See 2009 CanLII 5156 at para 8 (ONSC). The defendant objected, invoking evidence duplication among other arguments (ibid). The trial judge found that the additional obstetrics experts would both be testifying to the applicable standard of care, and the overlap in their evidence was “so substantial as to be overwhelming” (ibid at para 33). The judge also found that the plaintiffs had not demonstrated that the additional two obstetricians were “better positioned, by education training or experience, to provide opinion evidence on liability and causation issues” than the first two obstetricians that had been called (ibid at para 39). Finally, the judge found that the additional evidence was not necessary for the plaintiffs “to fairly and fully present their case” and therefore did not allow the additional two experts to provide evidence (ibid at para 46). The other two decisions cited by the defendants in Cheesman—Kulyk v Cramp, 2014 ONSC 5354 and Gorman v Powell, 2006 CanLII 35624 (ONSC)—are uninteresting for present purposes because they stem from motor vehicle personal injury actions. See Cheesman, supra note 3 at para 66. See also Kulyk v Cramp, 2013 ONSC 1539 at para 4; Gorman v Powell, 2006 CanLII 42801 at para 1 (ONSC).

110. Cheesman, supra note 3 at para 67.

111. Ibid at para 70, citing Hayes v Symington, 2015 ONSC 7362 [Hayes]. In Hayes, two emergency medicine specialists were permitted to testify because they had complementary perspectives, one academic and the other practical.

112. Ibid at paras 71, 82 [emphasis in original].

113. Ibid at para 72.

114. This also has implications for professionals’ legal liability in multidisciplinary care settings. Fleshing out these implications is beyond the scope of this article. But note that these implications may be significant in light of the court’s statement that the “standard of care expected of a member of a multidisciplinary team is not necessarily restricted to matters unique to that physician’s area of specialization but may also extend to the manner in which the physician interacts with other members of the team.” Ibid at para 84.

115. Ibid at para 73.

116. Ibid.

117. Ibid.

118. Ibid at paras 93-94.

119. I say “seems” because customarily, judgments do not provide an exhaustive account of the parties’ arguments. Rather, they provide the reader with the “gist” of the parties’ arguments. This decision is no exception. Without transcripts of a given hearing, and copies of written arguments (where applicable), we must extrapolate what the parties’ arguments were, based on the—sometimes cursory—account of the arguments provided in the decision.

120. See Cheesman, supra note 3 at para 94.

121. Ibid at paras 95-102.

122. Ibid at para 97.

123. Ibid at paras 103-109

124. Ibid at para 106.

125. Ibid at para 108.

126. Ibid at para 107.

127. Ibid at paras 94, 101, 109.

128. See generally Paciocco, supra note 27 at 50-51; Robertson & Picard, supra note 30 at 510ff.

129. See Thomas F Gieryn, Cultural Boundaries of Science: Credibility on the Line (University of Chicago Press, 1999) at 4-5, DOI: https://doi.org/10.7208/chicago/9780226824420.001.0001 [Gieryn, Cultural Boundaries]; Thomas F Gieryn, “Boundary-Work and the Demarcation of Science from Non-Science: Strains and Interests in Professional Ideologies of Scientists” (1983) 48 Am Soc Rev 781, DOI: https://doi.org/10.2307/2095325. See also Andrew Abbott, “Things of Boundaries” (1995) 62 Soc Research 857 at 857, 860 (regarding the adoption of a “boundaries-first” approach to entities such as professional communities). Abbott argues that “we should start with boundaries and investigate how people create entities by linking those boundaries into units”; in other words, “[b]oundaries come first, then entities” (ibid).

130. See Thomas F Gieryn, “Boundaries of Science” in Sheila Jasanoff et al, eds, Handbook of Science and Technology Studies (Sage, 1995) 393 at 405, DOI: https://doi.org/10.4135/9781412990127.n18 [Gieryn, “Boundaries of Science”]. Note the notion that cognitive authority obtains within a bounded domain has, as its corollary, the notion that it is possible to overstep a domain’s boundaries. Such overstepping is discussed in the philosophical literature under the term “epistemic trespassing.” See generally Nathan Ballantyne, “Epistemic Trespassing” (2019) 128 Mind 367, DOI: https://doi.org/10.1093/mind/fzx042; Nathan Ballantyne, Knowing Our Limits (Oxford University P