Doctor with 9 retractions loses lawsuit over work as expert witness

Cory Toth

A Canadian doctor with nine retractions due to misconduct has lost a court case seeking payment for an expert medical exam he performed in August 2014. The exam took place several months after his university found he had allowed a breach of research integrity in his lab and a month before news of the investigation and his departure from the school made national news in Canada.

On Dec. 5, Cory Toth, a former professor at the University of Calgary (U of C), appeared in an Edmonton, Alberta courtroom as the plaintiff in a lawsuit filed in Provincial Civil Court. The story was first reported by the Edmonton Journal.

Court documents, which we’ve made available here, show that in April 2016 Toth sued Western Medical Assessments (WMA) — the company that hired him to perform the exam, which was used in another case — and Michele Reeves — the lawyer who hired WMA. Toth alleged that he never received payment for his work and sought Can$2,000 (US$1,552) plus interest. In his claim, he said that despite the U of C finding:

my standing as a physician to perform any medicolegal assessments or any patient assessment was never held in question.

But the defendants disputed Toth’s claim and both countersued. WMA said it never would have let him to perform the exam had it known about the U of C finding, issued in March 2014, and that it suffered reputational damages of Can$5,000. WMA CEO Roger Hodkinson told Retraction Watch they’d used Toth as a medical expert before:

He had excellent neurology opinions. But there’s a huge difference between being a competent physician with an ability to practice medicine and being an expert with credibility before the court. He didn’t understand that distinction.

Reeves said she was forced to hire another medical expert — at a cost of Can$2,500 — after news of Toth’s research integrity problems broke on Sept. 8, 2014.

The story about the U of C finding and Toth’s subsequent departure from the university, published in Canada’s National Post, noted that comments written in response to our coverage of Toth’s retractions helped identify other questionable data in Toth’s papers, leading to the university’s investigation.

Toth did not respond to our request for comment.

In her dispute note, Reeves said that the National Post story came out just three days after she had submitted Toth’s expert report to the opposing counsel in her case. She said:

[Toth] knew or ought to have known his credibility would have been attacked successfully in cross-examination; and he knew or ought to have known he was not fit to be used as an expert and his report was useless, potentially harmful even.

WMA’s dispute note said Toth had an “ethical obligation” to disclose the U of C finding; had he done so, the company said it wouldn’t have chosen him to conduct the exam.

At trial, Reeves asked Judge Kalil Haymour to dismiss Toth’s claim. Haymour did so. Hodkinson, who was present in the courtroom, told us:

[Haymour] just stopped the proceedings and gave his opinion, which was that the civil claim was dismissed against both defendants.

In a judgement issued the same day, Haymour also dismissed both countersuits as well. Haymour did not elaborate on why he dismissed any of the suits, neither in the written order, nor at trial, Hodkinson told us.

Haymour also ordered Toth to pay Reeves Can$875 in costs and WMA to pay Toth Can$200, for travel costs Toth incurred when WMA cancelled an earlier trial date (Toth now lives in British Columbia.) The parties ultimately agreed that the costs would be settled if Toth paid Reeves Can$675.

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