Canada: Restrictions On Communication With Experts: Advocacy Groups Provide Guidance On Moore v. Getahun

The Superior Court's January decision in Moore v. Getahun1 has caused concern, anxiety2 and even outright defiance in the bar as lawyers opt to discard3 Justice J. Wilson's central finding in the case—that counsel cannot consult privately with their experts once they've received first drafts of their expert reports—in the wake of the case's pending appeal.  In the interim, two prominent advocacy groups have stepped forward to provide guidance for counsel caught between the prospects of adverse findings at trial for ignoring Moore v. Getahun and of prejudicing their clients' cases by following the ruling.

The Decision in Moore v. Getahun

It bears (briefly) revisiting Justice Wilson's conclusions in the case, a personal injury action concerning medical opinions about a motorcycle accident and the medical treatment that followed.  The controversy concerned a lengthy telephone call between counsel and an expert concerning a draft report.  The trial judge found this communication—which would be considered routine by many if not most counsel—improper:

[50] For reasons that I will more fully outline, the purpose of Rule 53.03 is to ensure the expert witness' independence and integrity. 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.

[51] 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.

[52] I do not accept the suggestion in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC 272 (CanLII), 2002 NSSC 272, 211 N.S.R. (2d) 201, 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 Rule 53.03 as well as the expert's credibility and neutrality.

 [Emphasis added.]

Commentators have been quick to point out that compliance with this decision means counsel—and judges—should expect to be saddled at trial with reports that are disorganized, poorly written, based on mistaken assumptions, or that miss the point, since counsel cannot steer their experts in the right direction without being required to disclose every minor correction or innocuous suggestion to opposing counsel, and risking exposing their experts to charges of bias.

It is perhaps worth noting that in the nearly six months since the release of Moore v. Getahun, the case has been referenced in only a handful of decisions, none of which has rejected Justice Wilson's conclusions on this issue or applied them.4

Advocacy Groups Weigh In

Notwithstanding what may be judicial reluctance to follow Justice Wilson's lead, two leading advocacy groups have come forward with guidance for the profession in the hope of both providing useful principles to help lawyers in their daily dealings with experts, and of arming them with authority to defend their practices if called into question by courts.

The Holland Group

The first to wade into the debate was the Holland Group (comprised of plaintiff and defence counsel in the medical malpractice bar), releasing a position paper5 that takes a firm stand against Moore v. Getahun.  The Group's contribution is notable, among other reasons, for its criticism of Justice Wilson's invoking Justice Coulter Osborne's 'Osborne Report' to support her position.  The paper states that her reasons misconstrue the Report's findings with respect to the 2010 changes to Rule 53.03.6  The Group's position is particularly credible because the Group is, as it happens, chaired by Justice Osborne. 

The Group makes the case for counsel continuing to review and shape expert reports:

All members of the Holland Group engaged in medical malpractice litigation currently review draft expert reports and discuss draft expert reports with their authors, with a view to ensuring that the finished product appropriately serves the many purposes of an expert report, including notice to opposing counsel, a sufficient recitation of the factual underpinnings and assumptions within the report and an explanation concerning the specific details and basis for the expert's opinion. The Holland Group's very firm consensus is that such communications are necessary to achieve the important purposes set out above.

...

As such, the Holland Group unanimously and firmly supports the practice, which it believes to be in the category of best practices, of counsel reviewing draft reports and communicating with experts as necessary to ensure the delivery of appropriate expert reports.

[Emphasis added.]7

The Group draws a line at counsel attempting to change the substance of an expert's opinion and offers a means of testing whether an expert's opinion is genuinely held:

The members of the Holland Group unanimously agree that it is inappropriate for counsel to persuade or attempt to persuade experts to articulate opinions that they do not genuinely hold, and that it is of paramount importance that the expert genuinely believes the opinion that he or she articulates both in the expert report and in the witness box. In some circumstances additional opinions bearing on the particular case not already articulated by the expert should be put to the expert to determine whether such views are compatible with their expert opinion.

[Emphasis added.]8

The Group's paper puts the bench on notice of its members' intention to ignore Moore v. Getahun until the Court of Appeal has had its say:

Recognizing that the Moore decision, like any decision of the Superior Court, is entitled to careful consideration and respect, the unanimous view and recommendation of the members of the Holland Group is to continue the best practices described above pending a decision of the Ontario Court of Appeal in the Moore case. That is, Holland Group members intend to continue to review draft expert reports and to communicate with experts appropriately to ensure that expert reports filed in their cases are of high quality and ultimately of assistance to the parties and the Court.

[Emphasis Added.]9

The Holland Group is seeking intervener status in the appeal of Justice Wilson's decision.

The Advocates' Society

If the Holland Group draws its authority on this issue from the fact that it speaks for the medical malpractice bar—recall that Moore v. Getahun was a medical malpractice case—the Advocates' Society's submission (which takes the form of a brief set of principles,10 and a longer position paper including those principles11) is the product of a broad consultation across several areas of practice12 and various stakeholder groups in the profession.13

Of greatest importance to counsel seeking to rely on the principles in court (much in the way in which counsel and the bench refer to the Society's Principles of Civility in numerous cases) will be the Society's rejection of Justice Wilson's decision and its affirmation of the propriety and necessity of ongoing consultation between counsel and experts, regardless of the stage of the proceeding or the status of the expert's report.  What might prove to be of equal importance in insulating lawyer-expert consultation from criticism are the prophylactic steps set out in principles 5-8 (below).  Counsel may wish to consider providing a copy of the principles to their experts, as well as preparing a standard-form document to provide to experts at the outset of their engagement (understanding that it would be producible in a proceeding) providing the information called for in these principles.  This would allow counsel to state with certainty what a given expert was told in the course of her or his retainer.

The principles themselves merit quoting verbatim:14

PRINCIPLE 1

An advocate has a duty to present expert evidence that is: (i) relevant to the matters at issue in the proceeding in question; (ii) reliable; and (iii) clear and comprehensible. An appropriate degree of consultation with testifying experts is essential to fulfilling this duty in many cases. An advocate may therefore consult with experts, including at the stage of preparing expert reports or affidavits, and in preparing experts to testify during trials or hearings. An advocate is not required to abandon the preparation of an expert report or affidavit entirely to an expert witness, and instead can have appropriate input into the format and content of an expert's report or affidavit before it is finalized and delivered.

PRINCIPLE 2

At the outset of any expert engagement, an advocate should ensure that the expert witness is fully informed of the expert's role and of the nature and content of the expert's duties, including the requirements of independence and objectivity.

PRINCIPLE 3

In fulfilling the advocate's duty to present clear, comprehensible and relevant expert evidence, the advocate should not communicate with an expert witness in any manner likely to interfere with the expert's duties of independence and objectivity.

PRINCIPLE 4

The appropriate degree of consultation between an advocate and a testifying expert, and the appropriate degree of an advocate's involvement in the preparation of an expert's report or affidavit, will depend on the nature and complexity of the case in question, the level of experience of the expert, the nature of the witness's expertise and other relevant circumstances of the case.

PRINCIPLE 5

An advocate should ensure that an expert has a clear understanding of the issue on which the expert has been asked to opine. An advocate should also ensure that the expert is provided with all documentation and information relevant to the issue they have been asked to opine on, regardless of whether that documentation or information is helpful or harmful to their client's case.

PRINCIPLE 6

An advocate should take reasonable steps to protect a testifying expert witness from unnecessary criticism.

PRINCIPLE 7

An advocate should inform the expert of the possibility that the expert's file will be disclosed, and should advise the expert witness not to destroy relevant records.

PRINCIPLE 8

At the outset of the expert's engagement, an advocate should inform the expert of the applicable rules governing the confidentiality of documentation and information provided to the expert.

PRINCIPLE 9

In appropriate cases, an advocate should consider an agreement with opposing counsel related to the non-disclosure of draft expert reports and communications with experts.

The Debate Continues

It is too early for these papers and principles to have been cited in jurisprudence.  It will be interesting to see whether and how they shape the debate in the upcoming appeal of Moore v. Getahun itself.

Footnotes

1 2014 ONSC 237 (CanLII), online: http://canlii.ca/t/g2lwp.

2 See e.g. Arshy Mann, "Exercise caution in consultation on expert witness reports," Legal Feeds (Canadian Lawyer & Law Times), June 16, 2014, online: http://www.canadianlawyermag.com/legalfeeds/2138/exercise-caution-in-consultation-on-expert-witness-reports.html; Greg Tamelini, "Decision may cause counsel to rely on professional expert," AdvocateDaily.com, online: http://advocatedaily.com/2014/02/decision-may-cause-counsel-to-rely-on-professional-experts/; Rebecca Zaretsky and Bernard LeBlanc, "Tinkering with the experts, " The Lawyers Weekly, May 2, 2014, online: http://www.lawyersweekly.ca/index.php?section=article&articleid=2130.

3 Julius Melnitzer, "Lawyers to resist Getahun pending appeal," Law Times, April 28, 2014, online: http://www.lawtimesnews.com/201404283936/headline-news/lawyers-to-resist-getahun-pending-appeal.

4 It appears the closest any court has come to endorsing or adopting Her Honour's prescription is to cite it, in the context of a motion to allow an expert to attend discoveries, for the proposition that "numerous substantive, private discussion, meetings and expert report revisions will disqualify an expert witness at trial." Blenk Development Corp. v. The Queen, 2014 TCC 185 (CanLII) at para. 17, online: http://canlii.ca/t/g7m90.

5 The Holland Group, "Position Paper Of The Holland Group Regarding Issues Arising from a Recent Ontario Superior Court Of Justice Decision in Moore v. Getahun, [2014] ONSC 237," online: http://thehollandgroup.ca/DOCS-13192246-v4-Position_Paper_of_The_Holland_Group_-_revised_Mar-6-2014.pdf.

6 Ibid. at p.4.

7 Ibid.

8 Ibid.

9 Ibid. at p.4.

10 The Advocates Society, "Principles Governing Communications with Testifying Experts," online: http://www.advocates.ca/assets/files/pdf/news/The%20Advocates%20Society%20-%20Principles%20Governing%20Communications%20with%20Testifying%20Experts.pdf.

11 The Advocates Society, "Position Paper on Communications with Testifying Experts," online: http://www.advocates.ca/assets/files/pdf/news/The%20Advocates%20Society%20-%20Position%20Paper%20on%20Communications%20with%20Testifying%20Experts.pdf.

12 These included "family, personal injury, intellectual property, corporate commercial, administrative and criminal law." Supra note 10 at p.2.

13 These included the Ontario Trial Lawyers Association, and the Intellectual Property Section of the Canadian Bar Association.  Ibid. at p.2.

14 Ibid. at pp.3-9, notes omitted, emphasis added.  Note that only the principles themselves are excerpted here; in their original form, each is followed by commentary specific to that principle.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
7 Dec 2016, Seminar, Ottawa, Canada

Staying local but going global presents its challenges. Gowling WLG lawyers offer an international roundtable on doing business in the U.K., France, Germany, China and Russia. This three-hour session will videoconference in lawyers from around the world to discuss business and intellectual property hurdles.

17 Dec 2016, Other, Ontario, Canada

Podcast summary

In the inaugural episode of Diversonomics, co-hosts Roberto Aburto and Sarah Willis introduce listeners to the podcast and discuss their experiences with diversity and inclusion in the legal industry. They also outline some of the obstacles the profession faces with respect to adopting new strategies and overhauling old practices.

22 Dec 2016, Other, Toronto, Canada

Podcast summary

For episode two of Diversonomics, co-hosts Roberto Aberto and Sarah Willis interview Mark Greenburgh, a partner in Gowling WLG's London office. They discuss the exciting new diversity and inclusion opportunities that have arisen since the combination of Gowlings and Wragge Lawrence Graham, as well at Gowling WLG UK's LGBT OpenHouse initiative.

 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.