In a much anticipated decision, the Ontario Court of Appeal recently released its reasons setting out the parameters of legal counsel’s communication with expert witnesses. The issue arose in a case called Moore v. Getahun (2015 ONCA 55) in which the plaintiff, Blake Moore seriously injured his right wrist in a motorcycle accident. As a result of the treatment that he received at the emergency department at Scarborough General Hospital, including the realigning of the bones in his broken wrist and the application of a plaster cast to his wrist and forearm, Moore suffered permanent muscle damage. He brought an action for negligence against the attending physician and the hospital.
The central issues at trial were whether the doctor had fallen below the standard of care by applying a full circumferential cast on Moore’s wrist and whether the full cast had caused the permanent muscle damage. The trial ended in a finding of liability. Before trial the parties had agreed that the appropriate award of damages would be $350,000.
The doctor appealed.
During the course of the trial, a number of issues were raised involving the preparation of the written report of the doctor’s expert witnesses. The trial judge, Justice Janet Wilson, held that it was improper for counsel to assist an expert witness in the preparation of the expert’s report. She was critical of the doctor’s counsel discussing the expert’s draft report with him during an hour and half telephone call. She concluded that there had been significant changes to the expert’s report as a result. Justice Wilson concluded that it had put the expert in a very awkward position as he was “obviously totally unaware that it may be improper to discuss and change a draft report, as a breach of his duty of impartiality”.
Justice Wilson referred to rule 53.03 of the Ontario Rules of Civil Procedure. That rule was amended in 2010, as a result of recommendations of the Honourable Coulter Osborne in his review of Ontario's civil justice system and included requiring an expert witness to provide an acknowledgement that his or her opinion evidence was fair, objective and non-partisan and that such duty prevailed over any obligation which the expert may owe to any party on behalf of whom she was engaged. Justice Wilson concluded the purpose of the rule was to ensure the independence and integrity of the expert witness. Justice Wilson concluded that the expert's primary duty was to the court and in light of the change of the role of expert witnesses under the “new rule”, she concluded 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."
There was significant uproar from the legal profession and in the community of expert witnesses as a result of Justice Wilson's decision The Advocates' Society and the Canadian Institute of Chartered Business Valuators struck task forces to develop a response. Both of these organizations intervened in the appeal to provide their perspectives. The Holland Access to Justice in Malpractice Group, also an intervener, prepared a positon paper that stated that the trial judge’s ruling would have the effect of impairing normal, reasonable and prudent litigation practices, would substantially increase the cost of litigation, would do a disservice to the court in terms of hearing “fulsome, well organized and appropriate evidence, and ultimately would result in a chilling and significantly restrictive effect on access to justice”.
The Canadian Defence Lawyers Association submitted that the trial judge’s ruling was “unprecedented, unsupported in law and seriously flawed”.
In all, six interveners put forward positions on counsel’s role in helping to shape and prepare expert reports for use at trial.
The appeal was heard before Justices Laskin, Sharpe and Simmons of the Ontario Court of Appeal. Justice Sharpe wrote the decision.
Not surprisingly, Justice Sharpe accepted the positions taken by the interveners as to counsel’s role in communicating with expert witnesses.
First, he disagreed with Justice Wilson’s statement that the 2010 amendments to rule 53.03 introduced a “change in the role of expert witnesses”. He held that the amendments were only intended to clarify and emphasise the existing duties of expert witnesses. Expert evidence presented should be seen to be the independent product of the expert uninfluenced as to form or content by counsel. Expert witnesses should provide independent assistance to the court by way of objective unbiased evidence and should not assume the role of an advocate. However, Justice Sharpe found that lawyers have a very important role to play in ensuring that expert reports are appropriately shaped and address the relevant issues to be determined at trial: "The independence and objectivity of expert witnesses is fostered under existing law and practiced in a number of ways including the ethical and professional standards of the legal profession which forbid counsel from engaging in practices likely to interfere with the independence and objectivity of expert witnesses."
Justice Sharpe agreed that it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports. Expert witnesses need the existence of lawyers in framing the reports in a way that is comprehensible and responsive to the pertinent legal issues in a case.
He further held that consultation and collaboration between counsel and expert witnesses is essential to ensure that the expert understands the duties reflected by the rules and the acknowledgement of the expert’s duty.
Justice Sharpe ruled that leaving an expert 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 costs in a regime already struggling to deliver justice in a timely and efficient manner.
Justice Sharpe also dealt with the issue of the extent to which consultations between counsel and expert witnesses need to be documented and disclosed to an opposing party. He found that litigation privilege protects communications with experts but that the litigation privilege was qualified and that disclosure may be required in certain situations.
Absent a factual foundation to support a reasonable suspicion that counsel has improperly influenced the expert, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness.
In this case, although Justice Sharpe concluded that the trial judge had erred in holding that it was unacceptable for counsel to review and discuss the draft expert report and that she had further erred using the written expert reports that were not entered into evidence or the subject of cross-examination to contradict and discredit aspects of the oral testimony of the experts, those errors did not affect the outcome of the trial and as there was no substantial wrong or miscarriage of justice that flowed from the errors, a new trial would not be justified.