On November 12, 2005, Blake Moore lost control of his
motorcycle, flying over the handle bars. Moore and his motorcycle
hit a parked car. He was taken to hospital in Scarborough, Ontario
where he was treated by doctors for a fracture of his right
Moore underwent surgery on his wrist. Afterwards, Dr. Tajedin
Getahun, a recently qualified orthopaedic surgeon, put a cast on
The next day, Moore returned to hospital complaining that his
cast was too tight. It was discovered that the cast had cut off
circulation to muscles in his wrist. Moore was taken to surgery,
but was left with permanent injuries.
Moore later sued Dr. Getahun for medical mistakes, leading to
At trial, the judge ruled in Moore's favour, awarding him
$350,000, plus costs and disbursements. As part of her decision,
the trial judge held that it was inappropriate for Dr.
Getahun's lawyers to have communicated with and provided
instructions to the medical experts who provided reports on behalf
of Dr. Getahun. Specifically, the trial judge objected to these
lawyers having reviewed draft reports. The trial judge required Dr.
Getahun's experts to provide earlier drafts of their reports
that were ordinarily privileged. Upon reviewing these drafts, the
trial judge used the earlier drafts to criticize the experts'
Dr. Getahun's lawyers appealed the trial decision in favour
of Moore. They argued that the trial judge had misunderstood the
role of experts at trial, and this led to her ruling in favour of
The Ontario Court of Appeal held that the trial judge was
incorrect in criticizing Dr. Getahun's lawyers and experts for
discussing draft reports. While the objectivity of expert witnesses
is critical, merely communicating with a lawyer about a draft
report will not taint that expert's impartiality.
Rather, lawyers should be permitted to explain to experts the
legal issues at play, and to provide guidance on how best to
present complex evidence within an expert's report.
The Ontario Court of Appeal found that there is no obligation
upon lawyers and experts to produce earlier draft reports or notes
on meetings between experts and lawyers. These drafts are shielded
by 'litigation privilege'. However, if reasonable suspicion
exists that a lawyer has improperly influenced an expert's
opinion, a Motion can be brought requesting the court to compel the
expert and lawyer to produce this material.
Ultimately, the Court of Appeal found that though the trial
judge had made an error, it did not undermine her finding that
Moore should be compensated by Dr. Getahun.
Moore's award of $350,000 was upheld.
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