A recent Ontario Superior Court of Justice decision concerning
communications between counsel and experts could have a drastic
impact on many of the common practices of the product liability bar
in Ontario. In Moore v. Getahun
("Moore"), Justice Janet Wilson issued a stark
warning to counsel that the practice of reviewing and commenting on
draft expert reports "should stop" and that
"[d]iscussions or meetings between counsel and an expert to
review and shape an draft expert report are no longer
The decision arises in the context of a medical malpractice
action, although its potential impact could stretch to all areas of
civil litigation, particularly product liability, where liability
and damages are often contested by way of multiple expert reports.
At issue was whether the defendant physician, Dr. Getahun, had met
the requisite standard of care in his treatment of his patient,
Moore. Justice Wilson found Dr. Getahun had breached the standard
of care expected of a reasonable orthopaedic surgeon, resulting in
the development of the plaintiff's compartment syndrome.
Justice Wilson took issue with the defendant's medical
expert, Dr. Ronald Taylor, for a number of reasons. Most notable
were Justice Wilson's comments on the impropriety of defence
counsel having reviewed and commented on Dr. Taylor's initial
draft report. During Dr. Taylor's testimony, he was questioned
about a 90 minute phone call with defence counsel following the
delivery of a draft report. At first, Dr. Taylor testified that
defence counsel had made "suggestions ... of what to put
in" his report, resulting in a revised final report. However,
after breaking for the day and resuming for trial the following
day, Dr. Taylor's evidence changed, suggesting that any changes
made over the phone were minimal.
Ultimately, Justice Wilson disagreed, finding that:
... the meeting between defence counsel and Dr. Taylor involved
more than simply superficial, cosmetic changes. The conversation
took place over a period of one and a half hours. Some content
helpful to the plaintiff in the August 27, 2013 draft report was
deleted or modified. I find that Dr. Taylor's opinion, although
not changed, was certainly shaped by defence counsel's
Justice Wilson noted that because Dr. Taylor would not have been
aware that the discussions and changes to his report were improper,
he had been put in "a very awkward situation" for which
defence counsel was responsible.
Pointing to the 2010 amendments to Ontario's Rules of
Civil Procedure, which imposed new requirements and duties on
experts under Rule 53.03, Justice Wilson held that the practice of
discussing draft reports between counsel and experts, especially
over the phone, was improper and undermined the purpose of Rule
53.03 as well as the credibility and neutrality of the expert.
Whereas Rule 53.03 reinforced the duties of experts as being owed
to the court, Justice Wilson found that Dr. Taylor's change in
tone regarding the changes made to his report evidenced that he
viewed his obligations as being to defence counsel
instead. This was fatal to both his credibility and neutrality
as an expert.
The Court's suggested solution is to require full
transparency in all communications after a draft report is provided
to counsel. More specifically, Justice Wilson proposed that if
after submitting the final expert report, counsel believes that
there is need for clarification or amplification, any input
whatsoever from counsel should be in writing and should be
disclosed to opposing counsel.
Many commentators have suggested that this new direction
prohibiting any communication between counsel and experts following
delivery of a draft report, unless made in writing and disclosed to
opposing counsel, goes too far and is overly restrictive. This
decision also says nothing about communications before
delivery of a draft report, leaving open the possibility that phone
conversations between experts and counsel prior to a draft being
furnished could shape the report while escaping scrutiny.
Key Takeaway Principle:
If followed, the Moore decision will have a massive
impact on the litigation of product liability cases, which
invariably rely on expert evidence for liability and damages. New
counsel has been retained to appeal Justice Wilson's decision
to the Ontario Court of Appeal. Until then, counsel for
manufacturers ought to be mindful of this decision's commentary
on conversations with experts and the fact that their
communications with their expert following the delivery of the
expert's draft report, are subject to production.
The Cassels Brock Product Liability Group will be closely
watching the appeal to best advise clients on managing expert
evidence in the products context.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The recent decision of the Ontario Court of Appeal in BMW Financial Services Canada, a Division of BMW Canada Inc. v. McLean provides some useful insight into the relationship between automobile dealers and the financing arms of the manufacturers for whom those dealers are franchisees.
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