Thursday, February 25, 2010

For Love and For Justice / Part 121 / Zabeth and Paul Bayne



An expert witness is an authority, who by virtue of education, training, skill, or experience, is believed to have specialized knowledge and expertise in a particular subject beyond that of the average person, sufficient that others should legally rely upon the witness's specialized (scientific, technical or other) opinion about an evidence or fact issue within the scope of his/her expertise, referred to as the expert opinion.

In this Bayne versus MCFD trial, Judge Crabtree will render a verdict. Leading to that anticipated and inevitable outcome each legal counsel calls witnesses some of whom are to be regarded as ‘expert.’ The contest is ongoing between the opposing sides, either to persuade the Judge that the witness is ‘expert’ or to discourage the claim to ‘expertise.’ Each lawyer is acquainted with the Canadian precedents that establish ‘expert’ definition. For testimony to be considered ‘expert’ its content must be the kind that informs the trier of the case, the jury or in this case, the judge, with facts that could not be discerned without the expert and without which the correct conclusion could not be reached. Expert evidence must be necessary or essential and relevant and reliable. To be reliable it must be able to withstand close scrutiny. A judge must then finally rule that the witness is entitled to testify by way of opinion or confirmation or otherwise. While several witnesses have already been presented, their admissability as experts and their 'expert' testimony has not yet been ruled upon by Judge Crabtree. That might be ruled today.

Well that’s what it was all about in court on Tuesday when Dr. Michael Sargent, a Pediatric Radiologist and part of the Children's Hospital physicians’ team was called as a witness for the Ministry of Children and Family Development. Finn Jensen presented him as an expert and his written report as expert testimony. We didn’t get to his testimony yet. That will wait for a later day in the schedule. If he is recognized as an expert, the expectation of the MCFD and Mr. Jensen is that his report and testimony should reinforce the position that the Bayne baby’s physical condition upon admission to Children’s Hospital in October 2007 was consistent with Shaken Baby Syndrome. That's what he is there to do. Will that testimony withstand the heat of a Christie cross-examination may be the issue.

Perhaps Dr. Sargent was aware that his qualifications would be stoutly questioned by Mr. Doug Christie. The morning was spent examining his credentials. Christie’s resultant submission in the afternoon was that Dr. Sargent was not qualified to be the objective, independent expert, that he doesn't have the requisite expertise to speak to shaken baby causation from his examination of X-Ray film. Christie challenged Sargent's expertise to provide a forensic opinion. He should not be allowed to present as to cause. Christie calls this intrusion into areas for which the doctor is unqualified. As he conducted his examination of Dr. Sargent it was clear that Christie took issue with the collegial relationship Sargent has with Dr. Margaret Colbourne. Colbourne’s Shaken Baby diagnosis is a substantial founding block to the MCFD case against the Baynes having their children returned to them. It was Colbourne and Jensen who just a few weeks ago asked Sargent to stand as a witness in support of Colbourne's position. Sargent acknowledged that Colbourne had told him her opinion before she came to court to give testimony. The judge has yet to rule on Sargent's admissability as an 'expert.'
Why we didn't hear Dr. Sargent's testimony on Tuesday: The start of the court session proper, was delayed as both lawyers discussed new evidence that Finn Jensen wanted to present with respect to Dr. Sargent's testimony. Dr. Sargent's multi-page report was emailed to Doug Christie on Feb 22 2010. Sargent had written the report Feb 17, 2010. Doug Christie was prepared to cross examine Dr. Sargent with regard to his report until he learned that that it contained reference to two X-Rays that had only recently been located and were not delivered to the defence radiologist for review. Christie then requested an adjournment to this testimony until Bayne's expert, Dr. Barnes from Stanford would have an opportunity to review and to respond. The Judge would not hear the testimony that day in fairness to Mr. Christie. Cross-examination was limited to Dr. Sargent's qualifications.

7 comments:

  1. Why wouldn't Dr. Sargent's report have been produced nearly two and a half years ago when he completed the examination on baby Bethany?

    In normal trials (in BC Supreme Court, for example), evidence is supposed to be presented up front well in advance of the trial, so each party has plenty of time to examine and formulate a reponse.

    Last-minute disclosures in a judicial process with such huge consequences attached must certainly raise a concern as to the motives of the ministry for doing this.

    Would not this late production of the "expert" report bring up a suspicion that the contents of the report could have been "tweaked" after the individual writing it was apprised with the evidence that has been presented at the trial? After all, there would be no way of knowing by the recipient of the information.

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  2. Expert witness reports are to be served/filed within legal time frames before trial. I thought it was 14 days prior to commencement. Why is the judge allowing exceptions to the rules? MCFD and legal council should be well aware. How can the Baynes provide full and proper answer at this late date? Is this not witholding evidence/disclosure issue?

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  3. I will inquire further about the matter.

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  4. I know on my sisters case the PD filed a motion for limine which is basically asking to dis-allow evidence/witnesses to be used by the other side in court due to the fact that they did not follow procedure and inform of their intention to use this evidence/witness (within the time frame allowed)therefore not allowing the other side to prepare appropriately. It is seen as a form of sabatoge. Thing is, if it goes un-noticed or un-challenged then prosecution can get away with it!

    Not sure if that is relevant? Just throwing that out there!

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  5. I can see from comments that I must clarify. MCFD's lawyer didn't pull a fast one, not yet. The Judge has permitted Christie the time he needs to read and prepare but on Tuesday, for the sake of fairness to Christie, Dr. Sargent could only be in the witness box for the purpose of presenting qualifications and cross examination related to qualification but none of the testimony or evidence.

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  6. May I repeat what I have said before? It demands clear and compelling evidence to forcibly remove children against the will of the parents.What evidence does the ministry have? They have the opinion of Dr.Colbourne that the Baynes deliberately harmed their daughter We have the opinion of numerous forensic experts that she is in error and they detail their arguments. In order to find a supportive opinion, the ministry had to bring in a doctor from Texas, who makes a living out of testifying that babies have been shaken. The radiologist who did the actual original examinations declined to support Colbourne and so the ministry had to shop around until the found a close colleague of Colbourne who would back her opinion. Let us assume that all the physicians who have offered opinions can are qualified experts. What is the one clear and compelling piece of evidence that emerges? It is that the experts disagree in very fundamental ways. This leads to the inevitable conclusion that it is obvious that there is no clear and compelling medical evidence and the only option is to return the children. It can be noted that apart from medical opinion, the ministry witnesses have not offered one piece of factual evidence. The only clear evidence that they have offered is that they are extremely adversarial and heedless of the best interests of the children.

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  7. Clarification: Dr. Sargent's multi-page report was emailed to Doug Christie on Feb 22, 2010. Sargent had written the report Feb 17, 2010. Doug Christie was prepared to cross examine Dr. Sargent with regard to his report until he learned that that it contained reference to two X-Rays that had only recently been located and were not delivered to the defence radiologist for review. Christie then requested an adjournment to this testimony until Bayne's expert, Dr. Barnes from Stanford would have an opportunity to review and to respond. The Judge would not hear the testimony that day in fairness to Mr. Christie.Cross-examination was limited to Dr. Sargent's qualifications.

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