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.
Regards,
Blair
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