Motherisk scandal highlights risk of deferring to experts without questioning credentials

The scene plays out daily in courtrooms across the country. An expert witness in forensics is sworn in. Their often lengthy resume is entered into the record. A lawyer and maybe the judge ask a few questions about qualifications. Then, in almost all cases, that expert is good to go, considered qualified to testify about a wide range of forensic evidence — from autopsy results to blood splatter patterns.

But a recent review of the Motherisk scandal at Toronto's SickKids Hospital has highlighted just how flawed that deference to "experts" can be.

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The review looked into hair analysis done at the Motherisk Drug Testing Laboratory, whose hair strand testing was used to back up allegations of drug and alcohol abuse in thousands of child protection cases in several provinces and even some criminal cases. It found that neither the lab's director, clinical toxicologist Gideon Koren, nor his staff had the qualifications or expertise to do that kind of forensic work, and those findings have now thrown 16,000 child protection cases and six criminal cases into doubt.

It is the second time in a decade that a doctor at SickKids Hospital who had been serving as a forensic expert turned out to have no forensic experience or credentials that would qualify him to give expert testimony in court or analyze forensic evidence.

In the previous case, a lack of "basic knowledge about forensic pathology" and faulty analysis of autopsy results by Charles Smith, the former director of the hospital's pediatric forensic pathology unit, led to at least 12 wrongful convictions of parents or caregivers for the deaths of children, according to a 2008 public inquiry.

Systemic failure

So, how did two spectacularly unqualified individuals end up as respected forensics experts working at one of the world's most renowned pediatric medical facilities?

"It's a failing across the system. It's a failing of prosecutors, defence and, in some occasions, the judiciary," said James Lockyer, senior counsel to the board of the Association in Defence of the Wrongly Convicted.

"Smith made himself into an icon despite warning signals. No one picked up on them. Koren has a terrible history."

While there are significant differences between the two situations, the similarities are striking: 

• Both Smith and Koren were charismatic physicians whose charisma seemed to overshadow the fact that they were out of their depth when it came to doing forensic work, work that in both cases contributed to parents losing custody of their children or losing their own freedom and serving jail time. 
• Officials ignored warning signs about both men. Early in Smith's career, a judge in a murder trial admonished him for his poor work and faulty autopsy conclusions. In Koren's case, he had a public spat with his colleagues over research into an experimental drug in the 1990s, sent them nasty, anonymous letters, then lied about it, resulting in a one-week suspension. Both Smith and Koren nevertheless went on to become the go-to forensics experts on certain types of cases.
• In both instances, the hospital that housed their labs was found to have exercised scant oversight to ensure the labs were run by qualified experts and met international standards for forensics.

Name recognition played a part

Retired Ontario Appeal Court judge Susan Lang completed her exhaustive review of Koren's Motherisk Drug Testing Laboratory (MDTL) last December and was struck by the similarities to the Smith case.

"That SickKids failed to exercise meaningful oversight over MDTL's work must be considered in the context of the hospital's experience with Dr. Charles Smith," Lang wrote in her report.

She also pointed out how in both situations, the association with the hospital bolstered the doctors' reputations and others' assumptions about their qualifications.

"Just as the SickKids name assisted in positioning Dr. Smith to become a leading expert in pediatric forensic pathology, that name likely gave credibility to the work of MDTL, as well," Lang wrote.

Lawyer and retired newspaper reporter Harold Levy saw firsthand how Smith avoided scrutiny throughout his 15-year career by exuding charisma and confidence while testifying.

When Smith walked in, the legend walked in.- Harold Levy, lawyer and former reporter

"He created such a powerful, holy, godly image of himself that people accepted him for what he held himself out to be," said Levy, who now writes a blog named after the disgraced pathologist that tracks examples of flawed forensic science.

"When Smith walked in, the legend walked in. And very few lawyers challenged him. Sometimes, innocent people, innocent parents, would plead guilty because they were told by their lawyers that his testimony was so powerful and influential that they would be convicted even though they were innocent."

Making conclusions based on preliminary results

Koren's testimony had similar heft and in 2009 helped convict a Toronto area mother accused of feeding her toddler cocaine of several serious charges, including administering a noxious substance with the intent to endanger life.

Lockyer first crossed paths with Koren while representing the mother during her appeal of the cocaine-related convictions.

Lockyer said he had never dealt with a case involving hair-sample testing before and decided to have the results from Koren's lab looked over by a certified forensic toxicologist in Alberta.

The forensic toxicologist found the original test results were not nearly good enough to have been used in court.

Lockyer says Koren argued his lab's testing methods were "gold standard," but it turned out the lab's work wasn't even worthy of a bronze.

Lang's review found the lab was drawing definitive conclusions about the presence of drugs and alcohol based on hair samples tested with a preliminary screening test that was meant to be used only as a first step to weed out negative results. Positive results were supposed to be confirmed with a more robust test and not passed directly on to authorities.

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The lab used the test for five years between 2005 and 2010 even though the testing kits, as Lang writes in her report, "included an explicit warning for the user about the preliminary nature of the … results."

Lang's review notes that even when the lab began doing more robust confirmation tests in 2010, lab workers didn't conduct those tests properly, rendering the results inaccurate.

New oversight measures in place

Lang writes that both the Smith and Koren debacles at SickKids "highlighted the dangers associated with having a laboratory within the institution that routinely provided a forensic service yet was led by individuals who lacked any forensic training."

In an emailed statement, hospital spokeswoman Matet Nebres said SickKids now has mandatory training for any staff who have dealings with the justice system. Subpoenas and summonses now have to be reviewed by the hospital's legal department. 

The hospital shut down the Motherisk lab last spring, and Koren has retired from SickKids. But the ordeal is not over for parents who may have lost custody of their children based on the lab's faulty work. The province of Ontario has appointed a commissioner to look back at 25 years' worth of cases to determine which ones need to be re-examined.