While retaining experts is commonplace in civil litigation, counsel are not always aware of who the expert has worked with, behind the scenes, to compile research or prepare analyses that contribute to the written report. We are also not always aware when the report itself was written not by the signatory, but someone else who worked on the file. The tenability of this practice, commonly referred to as "ghost-writing", has been the subject of recent jurisprudence. In this second article in the series on expert evidence, two recent decisions on ghost-writing and their implications are discussed.
In Lavecchia v McGinn, 2016 ONSC 2193 (CanLII), a 2016 personal injury case, Master MacLeod of the Ontario Superior Court discussed the practice of ghost-writing in obiter. Here, the defendant moved for an order compelling the plaintiff to attend an independent medical examination ("IME"), and the plaintiff argued for the court to impose restrictions on the defendant's right to require the IME. One of the contemplated restrictions, which the parties eventually agreed to, was effectively a prohibition against ghost-writing – the expert report had to be prepared by the examining doctor exclusively, and not by administrative staff or other individuals employed by the agency through which the doctor provided expert services. The plaintiff sought to prohibit ghost-writing in order to preserve the confidentiality of her health records. Master MacLeod commented favourably on the agreed-upon prohibition against ghost writing stating, "Suffice to say that there is merit to the argument that greater rigour and predictability concerning the role and use of experts might save time at trial and promote settlements".
Last year, in Kushnir v Macari, 2017 ONSC 307 (CanLII), another personal injury case, the parties were not so agreeable on the issue of ghost-writing and the Ontario Superior Court ruled on the issue, once again in the context of an IME. Here, the plaintiff sued the defendant for damages arising from injuries she sustained when his car struck her while she was walking through a parking lot. When the defendant requested that the plaintiff undergo an IME, the plaintiff agreed on the condition that the expert report would not be ghost-written. The defendant took issue with this condition and brought a motion under Rule 33 for an order requiring the plaintiff to undergo an IME. Justice MacLeod-Beliveau granted the defendant's motion but held that the plaintiff was required to undergo the IME pursuant to the following three conditions:
a) The written report must be
drafted solely and entirely by the examining doctor;
b) The research and medical record review leading to the report must be conducted solely and entirely by the examining doctor; and
c) The plaintiff's medical records must not be shared with any third parties.
Justice MacLeod-Beliveau held that ghost-writing offends Rule 33.06, which states, "the examining health practitioner shall prepare a written report setting out his or her observations":
"The proper interpretation of Rule 33.06 is that the report of the expert shall be written solely by its author. To be clear, the expert report must be that of the expert and not a report written partly by administrative staff or other individuals employed by the agency through which the doctor provides expert services. This is what the parties and the courts expect and it is what the Rule implies. I find ghost writing offends Rule 33.06".
Justice MacLeod-Beliveau went on to highlight some general concerns with ghost-writing. The judge explained that if an expert report is not actually authored by the expert to whom it is attributed, the reliability of that report is undermined. While the reliability of an expert report may be tested during cross-examination, Justice MacLeod-Beliveau recognized that many cases settle before trial and parties should be able to rely on the report at this untested stage. Moreover, Justice MacLeod-Beliveau reasoned that ghost-writing is especially problematic in the context of IMEs because it undermines the privacy of sensitive health information.
Kushnir and Lavecchia are certainly significant to the personal injury bar and there is an argument that their application should be limited to IME reports. However, it is also possible that the issue will arise at trial in any matter involving experts, regardless of the underlying action. Although the original context and argument for prohibiting ghost-writing was the protection of the plaintiff's privacy with respect to medical records, the decision of Justice MacLeod-Beliveau is broader. Her decision refers to rule 33.06, which deals with the medical examination of a party, but her comments are directed at the reliability of expert opinions generally, suggesting that the opinion would be subject to cross-examination on this basis. For this reason, counsel should review with their experts in detail the process by which the report was prepared and the individuals who were involved. If there was significant involvement by someone who is not the author, for example an engineer technologist who attended a scene and took the measurements upon which the expert relied in forming his opinion, counsel might consider having that person available to testify regarding their role. If the report has not yet been written, counsel should speak to the expert and consider disclosing the involvement of other identified persons in the body of the report so as to promote transparency and credibility.
This article originally appeared on The Lawyer's Daily website published by LexisNexis Canada Inc.
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