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Look who’s talking: Collaboration in the authorship of expert reports

February 11th, 2015   Authored by Theresa Yurkewich

The Ontario Court of Appeal has reaffirmed the propriety of effective consultation between counsel and expert witnesses.

In Moore v Getahun, 2015 ONCA 55, the plaintiff was injured in a motorcycle accident. Prior to surgery, his wrist was placed in a cast which resulted in the plaintiff suffering from compartment syndrome. At trial, the central issue was whether applying a full cast to the plaintiff’s wrist was below the standard of care, and whether the cast caused the compartment syndrome.

Experts were retained to provide medical reports on the above issues. During cross-examination, one expert testified that he produced and discussed his draft and final report with counsel who provided advice on the report. The trial judge criticised these actions and stated that these discussions breached an expert’s duty of impartiality. The judge found that it was improper for counsel to assist an expert witness in preparation of the expert’s report. This view was challenged on appeal.

The Ontario Court of Appeal concluded that the trial judge erred in ruling that it is unacceptable for counsel to review and discuss draft expert reports, although this did not affect the overall decision of the court.

At paragraph 49, the Court of Appeal discussed Ontario Rules of Civil Procedure Rule 53.03, stating that it is:

“Widely accepted that consultation between counsel and expert witnesses in the preparation of Rule 53.03 reports, within certain limits, is necessary to ensure the efficient and orderly presentation of expert evidence and the timely, affordable and just resolution of claims.”

Further, Rule 4.1.01(1) specifically states that an expert witness has a duty to “provide opinion evidence that is fair, objective, and non-partisan.” This evidence should be seen as the independent product of an uninfluenced party which provides independent and unbiased assistance to the court.

In Moore, the changes made by the expert at the direction of counsel were relatively minor, and were aimed at improving clarity of the report. The Court stated that banning discussions between counsel and expert witnesses or mandating that all communication be documented is contrary to well-established precedent. These discussions may be necessary in highly technical areas of the law when an expert requires an increased level of instruction and consultation. Proper communication is vital to the expert being able to communicate effectively to the court.

There are a number of factors that foster an expert witness’ independence, including: professional standards forbidding counsel from engaging in practices that may interfere with this objectivity, ethical standards requiring members of professional bodies to be impartial when giving expert evidence, and the tool of cross-examination during the trial process.

Finally, at para 65, the Court stated:

“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. Such a rule would encourage the hiring of “shadow experts” to advise counsel. There would be an incentive to jettison rather than edit and improve badly drafted reports, causing added cost and delay. “

Just as judges require the assistance of expert witnesses, these expert witnesses require the assistance of lawyers to frame their evidence in a comprehensive and responsive manner. As such, these discussions are to be permitted.