Moore v. Getahun, 2015 ONCA 55

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 wrist.

Moore underwent surgery on his wrist. Afterwards, Dr. Tajedin Getahun, a recently qualified orthopaedic surgeon, put a cast on Moore's wrist.

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 his injuries.

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' final reports.

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 Moore.

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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