Canada: "Is Too Much Communication A Bad Thing?" The Perils Of Correspondence With Experts In Civil Cases

In the recent Ontario Superior Court case of Moore v. Getahun, 2014 ONSC 237 ("Moore") the Court answered yes to this question and took a very restrictive approach to communications between counsel and experts.  Almost all civil litigators across the spectrum of cases deal with experts. Experts can play a significant, if not pivotal role in civil proceedings.  As someone with special knowledge, training or skill, the role of an expert is to assist the judge in areas that are beyond his or her scope of knowledge.  As set out in Rule 11-2 of the Court Civil Rules an expert had a duty to assist the court and not to be an advocate for any party.  The fact an expert's duty to be impartial has been codified in the BC Rules of Court underscores the importance of an expert being impartial.  A finding that an expert is not impartial and is acting as an advocate can result in the exclusion of an expert's report or it may go to weight.

Moore v Getahun

Moore is a medical malpractice action arising out of the medical care the plaintiff received after a motorcycle accident.  The plaintiff alleged that the defendant failed to meet the standard of care of a general orthopedic surgeon and that the defendant's casting of his fractured wrist caused a serious condition called Compartment Syndrome.

The most controversial portion of the decision relates to the Court's comments on the objectivity of experts and permissible interactions between counsel and experts, because they represent a marked departure from generally acceptable practices.

The Court's comments were directed at the defendant's expert, Dr. Taylor, who had provided an opinion on the issues of causation and the appropriate standard of care.  When reviewing Dr. Taylor's file, counsel for the plaintiff found notes referring to a 90 minute phone call with defence counsel.  When cross examined Dr. Taylor's evidence was that once he was happy with his draft report he sent it to counsel for their comments, and during the call counsel made suggestions and he made corrections to his report. 

Ultimately, the Court found that the practice of counsel reviewing and commenting on draft versions of an expert's report is not proper and in the course of the decision made some very strong comments regarding appropriate communications between counsel and experts:

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. [emphasis added] [para. 50]

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][para 52]

The Court found that Dr. Taylor had breached his duty of impartiality by participating in the call with counsel and making changes to his report during the call, but lay the blame for this squarely at the feet of defence counsel.  While the Court found that Dr. Taylor's opinion itself was not changed as a result of suggestions by counsel, it found that it was "certainly shaped" by defence counsel's suggestions. 

The Moore decision has been appealed.

Issues Arising from Moore

Not surprisingly, this case has generated a strong reaction from counsel both in Ontario and across Canada.  The most common response is that there are legitimate and entirely proper reasons for counsel to review and comment on an expert's report and that doing so does not interfere with an expert's duty to be impartial. 

Experts are engaged because they have special expertise in an area, but having expertise does not necessarily mean that these professionals have experience in writing reports or writing for an audience outside their particular field.  Counsel play an important role in ensuring that an expert's report is of assistance to the court and is in a form and at a level that can be readily understood.  By reviewing a draft report, counsel can ensure that an expert had not strayed beyond the scope of their expertise, provided an opinion on an ultimate issue, or based their opinion on incomplete or inaccurate facts. 

The Holland Group (a group of practitioners in Ontario in medical malpractice cases) has published a Position Paper expressing its strong concerns on Moore in this regard and setting out potential undesirable consequences from the decision.  The consequences cited in their Position Paper include:

     

(i) Increased Litigation Costs

Counsel may need to retain multiple experts, which will significantly increase litigation costs.   For example, if an expert report proves to be non-responsive, poorly written or unhelpful, counsel will likely discard the report and start fresh by retaining a new expert.  Counsel may also retain a "shadow expert" that they can consult with freely in an addition to retaining an expert to provide a report. 

(ii) Unhelpful Expert Reports

          

By reviewing draft reports counsel are able to assist in identifying errors and ensure that the report is in the proper form for the court.  If counsel are not able to review and comment on draft reports, expert reports will be less focused and comprehensive and may contain improper assumptions or opinions.   

(iii) The Emergence of "Professional Experts"

       

Counsel may become wary of working with new or untested experts and will gravitate towards experienced experts whose ability to provide cogent reports and evidence has been proven, leading to the emergence of "professional experts."  It was precisely this "hired gun" approach to experts that motivated changes to the Ontario rules dealing with experts.

Implications for Practice in British Columbia

While lawyers in Ontario are faced with how Moore will be applied pending appeal, Moore has not yet been cited in any B.C. decisions and is at odds with recent B.C. decisions dealing with this issue.   

In Conseil scolaire francophone de la Colombie-Britannique v. British Columbia (Education), 2014 BCSC 851, the BC Supreme Court issued reasons on the admissibility of the report of the plaintiff's expert, (the "Martel Report").  The defendants had objected to the admissibility of the Martel Report on the basis that it lacked impartiality and independence after Prof. Martel provided evidence on cross examination that she had met with plaintiff's counsel several times to review her report and she also consulted with them over the phone.  Prof. Martel's evidence was that the input of plaintiff's counsel was limited to proof-reading and suggestions for clarification and that they did not influence the substance of her report in any way.  Prof. Martel had not provided drafts of her report and rarely exchanged emails with plaintiff's counsel so there was almost no record of the extent of counsel's involvement in the drafting of her report.

The Court found that it is "quite proper" for counsel to provide feedback on the form of an expert report to ensure it is useful to the court.  The Court also disagreed with the suggestion from counsel for the defendants that counsel should retain records to demonstrate the extent of their involvement in the expert report, noting that the failure of counsel to retain such records ought not raise the suspicion of improper involvement.

In Maras v. Seemore Entertainment Ltd., 2014 BCSC 1109, the BC Supreme Court provided reasons on a pre-trial voire dire on the admissibility of various expert reports.  In his decision Mr. Justice Abrioux held that: "counsel have a role in assisting experts to provide a report that satisfies the criteria of admissibility." and cited the following excerpt from Surrey Credit Union v. Wilson (1990), 45 B.C.L.R. (2d) 310 (S.C.):

There can be no criticism of counsel assisting an expert witness in the preparation
of giving evidence.  Where the assistance goes to form as opposed to the substance
of the opinion itself, no objection can be raised.  It would be quite unusual in a case of this complexity if counsel did not spend some time in the preparation of witnesses before they were called to give evidence.  It is no less objectionable to engage in the same process when the witness to be called is an expert.  Indeed, had the process been followed here much of the objectionable material might have been avoided.

In contrast to Moore, instead of placing limits on the interaction between counsel and experts the case seems to place a positive duty on counsel to explain to an expert their role in providing expert evidence, including the boundaries of their opinion evidence.

While Moore has not been adopted in BC, the decision is a good reminder for counsel to consider how they deal with experts and ensure that their practices fulfill their duties as officers of the court and will not undermine the credibility of their expert.

This article was prepared with input from Amy Nathanson

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
Blaney McMurtry LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Blaney McMurtry LLP
Related Articles
 
Related Video
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