Canada: Ontario Court Of Appeal Confirms Privilege Over Counsel And Expert Communications

A little over one year ago, the Ontario Superior Court's decision in Moore v. Getahun sent a chill through the litigation bar in Ontario. During a medical negligence trial, the trial judge criticized an expert witness for discussing a draft expert report with counsel and required disclosure of all his drafts and notes of his communications with counsel during the course of the trial.1 The Court of Appeal's decision has been among the most eagerly anticipated appellate decisions of this year. The decision, released on January 29th, confirms and clarifies the law prior to the trial judge's decision. Communication between counsel and experts is both appropriate and necessary to ensure effective presentation of expert evidence at trial. It is only where there is a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert's opinion that disclosure of drafts and communications between counsel and expert will be warranted.

Background

In Moore, the plaintiff alleged that Dr. Getahun, an orthopaedic surgeon, fell below the standard of care by applying a circumferential cast to the plaintiff's wrist. The plaintiff alleged that the circumferential cast caused him to develop compartment syndrome, which led to permanent muscle damage. Dr. Getahun's position at trial was that it was within the standard of care to apply a circumferential cast and that the compartment syndrome was caused by the original injury, rather than the circumferential cast.

The Trial Decision

The trial judge found for the plaintiff. She preferred the evidence of the plaintiff's expert over the evidence of the expert witnesses called by the defence. In her reasons, she was highly critical of the interactions between defence counsel and the experts called by the defence.

One of the defendant's expert witnesses testified during cross-examination that he sent a draft report to defence counsel for review and produced his final report following an hour and a half conference call with counsel. Plaintiff's counsel did not pursue the issue further. Nonetheless, the trial judge demanded that the expert organize his file in chronological order and provide her with copies of his draft reports and notes of discussions with counsel. She also required counsel to produce all instructing letters and records of conference calls. The trial judge proceeded to question the expert about his drafts, his conversations with counsel and changes to his reports that were the result of those discussions.

In her reasons, the trial judge rejected the defence expert's explanation that the changes to his report after discussions with defence counsel were minor. Further, she used the revisions as a basis to reject his opinion as biased. According to the trial judge:

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.2

The trial judge concluded that the practice of reviewing draft reports should stop:

The purpose of Rule 53.03 of the Rules of Civil Procedure is to ensure the independence and integrity of the expert witness. The expert's primary duty is to the court. In light of this change in the role of the expert witness under the new rule, I conclude that counsel's practice of reviewing draft reports should stop. 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 neutral.3 [Emphasis added.]

The Appeal Decision

The trial judge's ruling came under heavy criticism in the legal profession and the community of expert witnesses.4 Various task forces were struck to develop a response to the trial judge's decision. Several interveners, including The Holland Access to Justice in Medical Malpractice Group (composed of leading members of the plaintiff and defence bar), participated in the appeal and opposed the trial judge's ruling.

Sharpe J.A., for a unanimous Court of Appeal, agreed with the appellant and the interveners. The Court's decision clarified the law regarding expert evidence in several important ways.

First, Moore clarifies prior uncertainty surrounding the effect of the 2010 amendments to the Rules of Civil Procedure. The amendments do not create substantive changes in the area of expert testimony or the expectations of counsel and expert witnesses. The changes "represent a restatement of the basic common law principle that it is the duty of an expert witness 'to provide opinion evidence that is fair, objective and non-partisan.'"5

Second, the dividing line between permissible and impermissible communication is whether the communication would compromise the independence and objectivity of the expert. Justice Sharpe referred to the existing "ethical and professional standards of the legal profession" which "forbid counsel from engaging in practices likely to interfere with the independence and objectivity of expert witnesses" as well as "ethical standards of other professional bodies place an obligation upon their members to be independent and impartial when giving expert evidence." He endorsed principles set out in the Advocates' Society's Principles Governing Communications with Testifying Experts as well as a position paper by the Holland Group regarding communications between counsel and experts.

Third, it follows that there is no general prohibition on substantive communications between counsel and expert witnesses, as the trial judge had suggested. Communications between counsel and expert witnesses are not per se improper and are, in fact, a necessary component of effective trial advocacy. Referring to Justice Stephen Goudge's comments in the Inquiry into Pediatric Forensic Pathology in Ontario, Justice Sharpe concluded that "proper communication with and preparation of expert witnesses" is "vital to enable them to communicate their opinions effectively to the court". Consultation and collaboration between counsel and experts is not only permitted, but it is "essential to ensure that the expert witness understands" his or her duties as an expert. As Justice Sharpe put it:

Counsel play a crucial mediating role by explaining the legal issues to the expert witness and then by presenting complex expert evidence to the court. It is difficult to see how counsel could perform this role without engaging in communication with the expert as the report is being prepared.6

Fourth, Moore clarifies the circumstances in which draft reports and communications between counsel and expert witnesses should be disclosed to the opposing party. The starting proposition is that all such communications are protected by litigation privilege. It is only where there has been an interference with the expert's duties of independence and objectivity that litigation privilege must yield "to the ends of justice". The Court held that disclosure will be warranted

[w]here the party seeking production of draft reports or notes of discussions between counsel and an expert can show reasonable grounds to suspect that counsel communicated with an expert witness in a manner likely to interfere with the expert witness's duties of independence and objectivity, the court can order disclosure of such discussions....

Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness.7 [Emphasis added.]

On the facts in Moore, the Court held that "[e]vidence of an hour and a half conference call" between defence counsel and the witness "plainly does not meet the threshold of constituting a factual foundation for an allegation of improper influence." Accordingly, the trial judge erred in law by requiring the expert's drafts and notes to be produced during the trial.

Implications

The Court of Appeal's decision largely confirms the common law as it stood prior to the Superior Court's decision in Moore v. Getahun. Specifically, it reaffirms the propriety of counsel's engaging in discussions with experts as they develop their reports, provided that counsel does not cross the line and compromise the independence and objectivity of the expert.

The most important practical effect of the decision is the threshold for disclosure of draft reports and communications between counsel and the expert. The party seeking disclosure must demonstrate "reasonable grounds" or a "factual foundation" to support a reasonable suspicion of improper communication between counsel and an expert witness before disclosure of communications or draft reports. It remains to be seen how this threshold will be interpreted and applied by trial judges in different circumstances going forward.

Case Information

Moore v. Getahun, 2015 ONCA 55

Docket: C58338

Date of Decision: January 29, 2015

Footnotes

1 Moore v. Getahun, 2014 ONSC 237.

2 Ibid. at para. 52.

3 Ibid. at para. 520.

4 Moore v. Getahun, 2015 ONCA 55 at paras. 46-49.

5 Ibid. at para. 52, citing Henderson v. Risi, 2012 ONSC 3459 at para. 19.

6 Moore v. Getahun, 2015 ONCA 55 at para. 64.

7 Ibid. at paras. 77-78.

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