Commercial Litigation and Dispute Resolution Blog

Authors: Kinji Bourchier and Amy Nathanson.

In the recent Ontario Superior Court case of Moore v. Getahun, 2014 ONSC 237 (“Moore”) the Court answered yes to this question and took a very restrictive approach to communications between counsel and experts.  Almost all civil litigators across the spectrum of cases deal with experts. Experts can play a significant, if not pivotal role in civil proceedings.  As someone with special knowledge, training or skill, the role of an expert is to assist the judge in areas that are beyond his or her scope of knowledge.  As set out in Rule 11-2 of the Court Civil Rules an expert had a duty to assist the court and not to be an advocate for any party.  The fact an expert’s duty to be impartial has been codified in the BC Rules of Court underscores the importance of an expert being impartial.  A finding that an expert is not impartial and is acting as an advocate can result in the exclusion of an expert’s report or it may go to weight.

Moore v Getahun

Moore is a medical malpractice action arising out of the medical care the plaintiff received after a motorcycle accident.  The plaintiff alleged that the defendant failed to meet the standard of care of a general orthopedic surgeon and that the defendant’s casting of his fractured wrist caused a serious condition called Compartment Syndrome.

The most controversial portion of the decision relates to the Court’s comments on the objectivity of experts and permissible interactions between counsel and experts, because they represent a marked departure from generally acceptable practices.

The Court’s comments were directed at the defendant’s expert, Dr. Taylor, who had provided an opinion on the issues of causation and the appropriate standard of care.  When reviewing Dr. Taylor’s file, counsel for the plaintiff found notes referring to a 90 minute phone call with defence counsel.  When cross examined Dr. Taylor’s evidence was that once he was happy with his draft report he sent it to counsel for their comments, and during the call counsel made suggestions and he made corrections to his report.

Ultimately, the Court found that the practice of counsel reviewing and commenting on draft versions of an expert’s report is not proper and in the course of the decision made some very strong comments regarding appropriate communications between counsel and experts:

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. [emphasis added] [para. 50]

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 … [emphasis added][para 52]

The Court found that Dr. Taylor had breached his duty of impartiality by participating in the call with counsel and making changes to his report during the call, but lay the blame for this squarely at the feet of defence counsel.  While the Court found that Dr. Taylor’s opinion itself was not changed as a result of suggestions by counsel, it found that it was “certainly shaped” by defence counsel’s suggestions.

The Moore decision has been appealed.

Issues Arising from Moore

Not surprisingly, this case has generated a strong reaction from counsel both in Ontario and across Canada.  The most common response is that there are legitimate and entirely proper reasons for counsel to review and comment on an expert’s report and that doing so does not interfere with an expert’s duty to be impartial.

Experts are engaged because they have special expertise in an area, but having expertise does not necessarily mean that these professionals have experience in writing reports or writing for an audience outside their particular field.  Counsel play an important role in ensuring that an expert’s report is of assistance to the court and is in a form and at a level that can be readily understood.  By reviewing a draft report, counsel can ensure that an expert had not strayed beyond the scope of their expertise, provided an opinion on an ultimate issue, or based their opinion on incomplete or inaccurate facts.

The Holland Group (a group of practitioners in Ontario in medical malpractice cases) has published a Position Paper expressing its strong concerns on Moore in this regard and setting out potential undesirable consequences from the decision.  The consequences cited in their Position Paper include:

(i)                Increased Litigation Costs

Counsel may need to retain multiple experts, which will significantly increase litigation costs.  For example, if an expert report proves to be non-responsive, poorly written or unhelpful, counsel will likely discard the report and start fresh by retaining a new expert.  Counsel may also retain a “shadow expert” that they can consult with freely in an addition to retaining an expert to provide a report.

(ii)               Unhelpful Expert Reports

By reviewing draft reports counsel are able to assist in identifying errors and ensure that the report is in the proper form for the court.  If counsel are not able to review and comment on draft reports, expert reports will be less focused and comprehensive and may contain improper assumptions or opinions.

(iii)            The Emergence of “Professional Experts”

Counsel may become wary of working with new or untested experts and will gravitate towards experienced experts whose ability to provide cogent reports and evidence has been proven, leading to the emergence of “professional experts.”  It was precisely this “hired gun” approach to experts that motivated changes to the Ontario rules dealing with experts.

Implications for Practice in British Columbia

While lawyers in Ontario are faced with how Moore will be applied pending appeal, Moore has not yet been cited in any B.C. decisions and is at odds with recent B.C. decisions dealing with this issue.

In Conseil scolaire francophone de la Colombie-Britannique v. British Columbia (Education), 2014 BCSC 851, the BC Supreme Court issued reasons on the admissibility of the report of the plaintiff’s expert, (the “Martel Report”).  The defendants had objected to the admissibility of the Martel Report on the basis that it lacked impartiality and independence after Prof. Martel provided evidence on cross examination that she had met with plaintiff’s counsel several times to review her report and she also consulted with them over the phone.  Prof. Martel’s evidence was that the input of plaintiff’s counsel was limited to proof-reading and suggestions for clarification and that they did not influence the substance of her report in any way.  Prof. Martel had not provided drafts of her report and rarely exchanged emails with plaintiff’s counsel so there was almost no record of the extent of counsel’s involvement in the drafting of her report.

The Court found that it is “quite proper” for counsel to provide feedback on the form of an expert report to ensure it is useful to the court.  The Court also disagreed with the suggestion from counsel for the defendants that counsel should retain records to demonstrate the extent of their involvement in the expert report, noting that the failure of counsel to retain such records ought not raise the suspicion of improper involvement.

In Maras v. Seemore Entertainment Ltd., 2014 BCSC 1109, the BC Supreme Court provided reasons on a pre-trial voire dire on the admissibility of various expert reports.  In his decision Mr. Justice Abrioux held that: “counsel have a role in assisting experts to provide a report that satisfies the criteria of admissibility.” and cited the following excerpt from Surrey Credit Union v. Wilson (1990), 45 B.C.L.R. (2d) 310 (S.C.):

There can be no criticism of counsel assisting an expert witness in the preparation of giving evidence.  Where the assistance goes to form as opposed to the substance of the opinion itself, no objection can be raised.  It would be quite unusual in a case of this complexity if counsel did not spend some time in the preparation of witnesses before they were called to give evidence.  It is no less objectionable to engage in the same process when the witness to be called is an expert.  Indeed, had the process been followed here much of the objectionable material might have been avoided.

In contrast to Moore, instead of placing limits on the interaction between counsel and experts the case seems to place a positive duty on counsel to explain to an expert their role in providing expert evidence, including the boundaries of their opinion evidence.

While Moore has not been adopted in BC, the decision is a good reminder for counsel to consider how they deal with experts and ensure that their practices fulfill their duties as officers of the court and will not undermine the credibility of their expert.

This article was prepared with input from Amy Nathanson.