A recent Ontario Superior Court of Justice decision concerning communications between counsel and experts could have a drastic impact on many of the common practices of the product liability bar in Ontario. In Moore v. Getahun ("Moore"), Justice Janet Wilson issued a stark warning to counsel that the practice of reviewing and commenting on draft expert reports "should stop" and that "[d]iscussions or meetings between counsel and an expert to review and shape an draft expert report are no longer acceptable."
The decision arises in the context of a medical malpractice action, although its potential impact could stretch to all areas of civil litigation, particularly product liability, where liability and damages are often contested by way of multiple expert reports. At issue was whether the defendant physician, Dr. Getahun, had met the requisite standard of care in his treatment of his patient, Moore. Justice Wilson found Dr. Getahun had breached the standard of care expected of a reasonable orthopaedic surgeon, resulting in the development of the plaintiff's compartment syndrome.
Justice Wilson took issue with the defendant's medical expert, Dr. Ronald Taylor, for a number of reasons. Most notable were Justice Wilson's comments on the impropriety of defence counsel having reviewed and commented on Dr. Taylor's initial draft report. During Dr. Taylor's testimony, he was questioned about a 90 minute phone call with defence counsel following the delivery of a draft report. At first, Dr. Taylor testified that defence counsel had made "suggestions ... of what to put in" his report, resulting in a revised final report. However, after breaking for the day and resuming for trial the following day, Dr. Taylor's evidence changed, suggesting that any changes made over the phone were minimal.
Ultimately, Justice Wilson disagreed, finding that:
... the meeting between defence counsel and Dr. Taylor involved more than simply superficial, cosmetic changes. The conversation took place over a period of one and a half hours. Some content helpful to the plaintiff in the August 27, 2013 draft report was deleted or modified. I find that Dr. Taylor's opinion, although not changed, was certainly shaped by defence counsel's suggestions.
Justice Wilson noted that because Dr. Taylor would not have been aware that the discussions and changes to his report were improper, he had been put in "a very awkward situation" for which defence counsel was responsible.
Pointing to the 2010 amendments to Ontario's Rules of Civil Procedure, which imposed new requirements and duties on experts under Rule 53.03, Justice Wilson held that the practice of discussing draft reports between counsel and experts, especially over the phone, was improper and undermined the purpose of Rule 53.03 as well as the credibility and neutrality of the expert. Whereas Rule 53.03 reinforced the duties of experts as being owed to the court, Justice Wilson found that Dr. Taylor's change in tone regarding the changes made to his report evidenced that he viewed his obligations as being to defence counsel instead. This was fatal to both his credibility and neutrality as an expert.
The Court's suggested solution is to require full transparency in all communications after a draft report is provided to counsel. More specifically, Justice Wilson proposed that if after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.
Many commentators have suggested that this new direction prohibiting any communication between counsel and experts following delivery of a draft report, unless made in writing and disclosed to opposing counsel, goes too far and is overly restrictive. This decision also says nothing about communications before delivery of a draft report, leaving open the possibility that phone conversations between experts and counsel prior to a draft being furnished could shape the report while escaping scrutiny.
Key Takeaway Principle:
If followed, the Moore decision will have a massive impact on the litigation of product liability cases, which invariably rely on expert evidence for liability and damages. New counsel has been retained to appeal Justice Wilson's decision to the Ontario Court of Appeal. Until then, counsel for manufacturers ought to be mindful of this decision's commentary on conversations with experts and the fact that their communications with their expert following the delivery of the expert's draft report, are subject to production.
The Cassels Brock Product Liability Group will be closely watching the appeal to best advise clients on managing expert evidence in the products context.
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