The Ontario Court of Appeal has released its much anticipated decision in Moore v. Getahun 2015 ONCA 55. The decision specifically addresses the extent to which communication between counsel and experts is permitted, specifically under the 2010 amendments to the Ontario Rules of Civil Procedure. These amendments fostered unbiased expert evidence and effectively precluded meetings between experts and lawyers to shape expert reports and opinions.
History of the Proceedings
This decision arises in the context of a medical malpractice
action, in which the issue was whether the defendant physician, Dr.
Getahun, had met the requisite standard of care in his treatment of
his patient, Moore. The trial judge found Dr. Getahun had breached
the standard of care expected of a reasonable orthopaedic surgeon.
The trial judge took issue with the defendant's medical expert,
concluding that the practice of reviewing and commenting on draft
expert reports ought to stop and that discussions or meetings
between counsel and an expert to review and shape a draft expert
report are no longer acceptable.
In this decision, the Court concluded that the trial judge erred in
holding that it was unacceptable for counsel to review and discuss
the draft expert reports. The Court also found that the trial
judge further erred in using the written expert reports that were
neither entered into evidence, nor the subject of
cross-examination, to contradict and discredit aspects of the
viva voce evidence of the appellant's expert
witnesses.
The Court did conclude, however, that these errors did not affect
the outcome and that no substantial wrong or miscarriage of justice
flowed from the errors. As such, the Court would not be
justified in ordering a new trial and the appeal was dismissed.
It is Not Inappropriate for Counsel to Review Draft Expert Reports
In disagreeing with the trial judge, the Court stated that the
amendments to Rule 53.03 did not create changes in the role of
expert witnesses but rather reinforced the basic common law
principles regarding independence and objectivity in expert
witnesses.
It was further emphasized that prohibiting undocumented discussions
between counsel and expert witnesses or requiring that disclosure
of all written communications be produced, is unsupported by any
existing authority.
The Court was very mindful of the reaction of the legal profession
to the trial judge's ruling. Just as lawyers and judges need
the input of experts, expert witnesses equally need the assistance
of lawyers in framing their reports in a way that is comprehensible
and adequately addresses the key issues in the litigation. The
Court concluded that from a practical standpoint, "leaving the
expert witness entirely to his or her own devices, or requiring all
changes to be documented in a formalized written exchange, would
result in increased delay and cost in a regime already struggling
to deliver justice in a timely and efficient manner."
Consultations Regarding Draft Reports Should Not Be Automatically Disclosed
In turning to the issue of the extent to which consultations
between counsel and expert witnesses need to be documented and
disclosed to an opposing party, the Court took a very practical
approach. As these discussions attract the protection of litigation
privilege, making such discussions and drafts subject to disclosure
would, in the Court's view, discourage parties reducing
preliminary or tentative views to writing and ultimately, lead to
unbalanced reports.
Of course there will be the exceptional cases where a party can
show reasonable grounds to suspect that counsel communicated with
an expert witness in a manner likely to interfere with the
witness' duties of independence. However, unless a factual
foundation to support such allegations can be found, the Court
makes it clear in this decision that a party should not be allowed
to demand production of draft reports or notes of interactions
between counsel and an expert witness.
In a day and age where expert evidence is a significant aspect of
civil litigation and has become even more prevalent with the
evolution of science and technology, this issue is now, more than
ever, at the forefront of civil justice reform.
This decision provides clarity in respect of a vexing issue which
has been the subject of conflicting authorities. It is safe to say
that the Court of Appeal has restored both logic and practicality
to the use of experts in Ontario.
Find a full copy of the decision here.
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