Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable
A controversial ruling from a Canadian court earlier this year could have implications for the way expert witnesses prepare their reports (at least in Canada). In Moore v Getahun1, a medical malpractice suit heard in the Ontario Superior Court of Justice, the trial judge was highly critical of the way a medical expert [Dr T] discussed a draft copy of his report with counsel and made changes based on their suggestions.
Discovery of the expert's notes revealed that his draft report was discussed during a 90-minute phone call. Upon cross-examination, Dr T said that although he was happy with his report, counsel made 'suggestions' and he 'made the corrections over the phone'. Counsel for the Plaintiff submitted that it was 'inappropriate for defence counsel to make suggestions to shape Dr T's report'. Unfortunately, the ruling does not explain what those 'suggestions' were.
In her decision, Wilson J emphasised the requirement for expert witnesses to be independent, stating:
Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable2...
I do not accept the suggestion... 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 [the Canadian Rules of Civil Procedure] as well as the expert's credibility and neutrality3.
Wilson J further ruled that:
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 neutral4.
The Canadian Bar Association has criticised the decision, noting that if lawyers spot errors in an expert report, they 'will have to choose between identifying [the errors] in correspondence that will be disclosed, or starting again with a new expert', potentially causing delays and added costs. As a result, they argued, lawyers may be reluctant to hire witnesses who are less experienced in giving evidence – even when those experts' opinions would have been helpful to the court.
The decision may have implications for the Australian court system, as Canadian judgments are sometimes considered by judges considering matters in Australia. Wilson J's narrow interpretation of Rule 53.03 of the Rules of Civil Procedure (the Canadian requirements for expert witnesses' reports) adds to the requirement for expert witnesses to maintain their independence and duty to the court. This principle is emphasised in similar provisions in Australia's Uniform Civil Procedure Rules5.
Many of our engagements involve the provision of accounting, valuation or technology expert witness services, where our foremost duty is to the court. Without knowing the substance of the 'suggestions' and changes that were made to the expert report in this case, it is hard to know whether we would have considered them appropriate in an Australian context. Our work can involve discussions with legal representatives after issuing a draft report. However, these are usually restricted to confirming our understanding of background matters and instructions included in our report or to dealing with obvious errors or omissions. We are conscious that we may be required to explain changes between a draft and a final report (and that any draft we send may be discoverable).
Indeed, at least some authority in Australia directly contradicts this ruling. In Harrington-Smith on behalf of the Wongatha People v Western Australia (No 7)  , Justice Lindgren said (emphasis in original):
Unfortunately, in the case of many of the experts' reports, little or no attempt seems to have been made to address in a systematic way the requirements for the admissibility of evidence of expert opinion. Counsel protested that, in order to ensure that the requirements of admissibility are met, lawyers would have to become involved in the writing of the reports of expert witnesses. In the same vein, counsel said, in supporting the admission of certain parts of a report, that they were written in the way in which those qualified in the particular discipline are accustomed to write.
Lawyers should be involved in the writing of reports by experts: not, of course, in relation to the substance of the reports (in particular, in arriving at the opinions to be expressed); but in relation to their form, in order to ensure that the legal tests of admissibility are addressed. In the same vein, it is not the law that admissibility is attracted by nothing more than the writing of a report in accordance with the conventions of an expert's particular field of scholarship. So long as the Court, in hearing and determining applications such as the present one, is bound by the rules of evidence, as the Parliament has stipulated in subs 82(1) of the NT Act, the requirements of s 79 (and of s 56 as to relevance) of the Evidence Act are determinative in relation to the admissibility of expert opinion evidence.
It is a careful balancing act. We agree that having discussions to 'review and shape' a draft report may well be inappropriate, particularly if the "shaping" is intended to alter the expert's opinion on a critical matter. However, saying that every change should be disclosed in writing appears somewhat onerous (and time consuming, which adds to the costs). This is particularly the case where the expert may not have prior experience in providing expert reports and so will need some guidance from their instructing solicitors/counsel as to the appropriate form of the report.
The decision has been appealed to the Ontario Court of Appeal.
1 - Moore v. Getahun, 2014 ONSC 237
2 - Ibid, at 50
3 - Ibid, at 52
4 - Ibid, at 520
5 - See example, Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW)
6 - Harrington-Smith on behalf of the Wongatha People v Western Australia (No 7)  FCA 893 (20 August 2003) [at 18].
Moore v. Getahun, 2014 ONSC 237
Rule 53.03, Canadian Rules of Civil Procedure
Canadian Bar Association commentary
Harrington-Smith on behalf of the Wongatha People v Western Australia (No 7)  FCA 893 (20 August 2003)
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