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
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
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
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions