On January 14, 2014, Madam Justice Wilson of the Superior Court of Justice released her decision in Moore v. Getahun1 ("Moore") strongly criticizing the current practice of lawyers reviewing and commenting on draft expert reports prepared for use at trial.
Moore v. Getahun
Moore was a personal injury action. During the examination of an expert retained by the defendants at trial, plaintiff's counsel reviewed the expert's file and found notes referring to a telephone conversation between the expert and defence counsel. During the call, counsel reviewed the expert's report and suggested changes, which were made by the expert.
The plaintiff argued that it was inappropriate for defence counsel to make suggestions to the expert concerning his report. Defence counsel took the position that experts are entitled to prepare draft reports to be shared with counsel for comment.
Madam Justice Wilson agreed with counsel for the plaintiff, admonished counsel's common practice concerning expert reports and found as follows:
"[50] For reasons that I will more fully outline, the purpose of Rule 53.03 is to ensure the expert witness' independence and integrity. The expert's primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude that counsel's prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.
[51] 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.
[52] I do not accept the suggestion in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC 272 (CanLII), 2002 NSSC 272, 211 N.S.R. (2d) 201, that discussions with counsel of a draft report go to merely weight. The practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 53.03 as well as the expert's credibility and neutrality....
[520] The purpose of Rule 53.03 of the Rules of Civil Procedure is to ensure the independence and integrity of the expert witness. The expert's primary duty is to the court. In light of this change in the role of the expert witness under the new rule, I conclude that counsel's practice of reviewing draft reports should stop. There should be full disclosure in writing of any changes to an expert's final report as a result of counsel's corrections, suggestions, or clarifications, to ensure transparency in the process and to ensure that the expert witness is neutral." [Emphasis added in bold.]2
The Expert's Duty
An expert is required to be independent and impartial. Their duty lies to the Court, he or she must not advocate for the party on whose behalf they are engaged. An expert's duty is codified in Rule 4.1.01 of the Rules of Civil Procedure (the "Rules")3.
Current Practice
It is common practice for experts to provide counsel with draft copies of their reports for review and comment. Counsel regularly provide the expert with input where appropriate.
In our opinion, this practice was accepted by the Court because an expert's impartiality remained protected in at least the following ways. Firstly, the entire file of an expert called to testify at trial, including their notes, correspondence with counsel and draft reports, may be the subject of a production order4. Secondly, an expert can and often is cross-examined by opposing counsel on their draft reports. Thirdly, pursuant to Rule 53.03(2.1)5, experts must sign an acknowledgment of their duty to be objective and non-partisan as set out in Rule 4.1.01 of the Rules.
Best Practices Following Moore v. Getahun
The comments of Justice Wilson in Moore, if followed, represent a marked departure from the current practice concerning the preparation of expert reports in Ontario. According to Justice Wilson, it is no longer appropriate for counsel to review and provide comment on draft expert reports. The current practice may result in the Court refusing to accept the report or limiting the evidentiary value or the report.
As a decision of the Superior Court of Justice, it remains open for other trial judges of coordinate jurisdiction to disagree with the analysis of Wilson J. and confirm the acceptability of the current practice.
In our view, for the reasons set forth above, consultation between counsel and an expert concerning the expert's draft report does not compromise the expert's impartiality or create a perception of bias. Moreover, such consultation is not inconsistent with the expert's duty to the Court. Interestingly, the Court's decision in Moore does not appear to expressly prohibit discussions between counsel and an expert prior to the report being drafted.
However, until the comments of Justice Wilson are overruled6 or rejected, counsel and experts should be mindful of the Court's direction. They may consider proceeding by expanding discussions and consultation prior to the report being written. Further, any revisions requested to a draft report by counsel might be provided by correspondence and disclosed to opposing counsel. At a minimum, there should be a discussion between the expert and counsel on the level and manner of counsel's involvement in the preparation of an expert report.
Footnotes
1 2014 ONSC 237.
2 Ibid. at paras. 50-52 and 519. See also paras. 288-300.
3 R.R.O. 1990, Reg 194, r. 4.1.01(1).
4 Conceicao Farms Inc. v. Zeneca Corp. (2006), 272 D.L.R. (4th) 532 (Ont. C.A [In Chambers]) rev'd on other grounds, (2006), 272 D.L.R. (4th) 545 (Ont. C.A.).
5 Supra note 3, r. 53.03(2.1).
6 As at January 23, 2014, counsel for the defendants was awaiting instructions as to whether appeal the decision. However, even if the decision is overturned, the Court of Appeal may not comment on Justice Wilson's findings on this issue.
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