The long awaited decision from the Court of Appeal in Moore v. Getahun, 2015 ONCA 55 (CanLII) has arrived and it provides much needed clarity on the issue of communications between counsel and experts. In its ruling, the court emphasized the professional and ethical obligations of counsel, as well as the adversarial process, including cross-examinations, as safeguards to protect and ensure an expert's duty to provide objective and unbiased opinion evidence that is of assistance to the trier of fact.
The decision has clarified or reaffirmed the law on several issues, including: (1) discussions between counsel and experts regarding draft reports; (2) the production of draft reports, notes and records prepared by an expert; (3) the use of written reports that are not in evidence; and (4) findings regarding a breach of the standard of care that was not pleaded or argued.
Below is a summary of the important findings:
Discussions between counsel and expert regarding draft reports
Contrary to the trial decision, the Court of Appeal held that communications between counsel and experts are necessary to ensure the efficient and orderly presentation of expert evidence as well as the timely, affordable and just resolution of claims. The court noted that the 2010 amendments to the Rules of Civil Procedure prompted by the report of Justice Coulter Osborne did not impose any new duties on experts, only codified those that had already existed in common law.
Similarly, the court referred to the report of Justice Stephen Goudge and noted that the recommendations following the inquiry into pediatric forensic pathology practices emphasized the importance and necessity of communications between counsel and experts to avoid the so-called "hired gun" and ensure reliability. The court also referred to multiple statements of professional ethics of lawyers, including from The Advocates' Society and The Holland Group, as well as the professional ethics of various types of experts, as safeguards against improper communications between counsel and experts. Finally, the court identified the adversarial process itself, including cross-examination, as a tool for exposing partisan expert evidence.
Ultimately, the court concluded that consultation and collaboration between counsel and expert witnesses is essential to ensure that the expert witness understands his or her duties and reviewing a draft report enables counsel to ensure that the report (1) meets the requirements of the Rules, (2) addresses and is restricted to the relevant issues and (3) is written in a manner that is accessible and comprehensible.
Production of draft reports
The court held that litigation privilege extends to the draft reports, notes and records prepared by an expert during the course of preparing his or her opinion and therefore these items need not be disclosed or produced to the opposing party. However, since litigation privilege is not absolute, this rule is subject to two caveats.
First, the findings, opinions and conclusions, including "foundational information," must still be produced in accordance with the Rules and second, litigation privilege cannot be used to shield improper conduct. Thus, where a party can show reasonable grounds that communication by counsel with the expert interfered with the expert's duties, the court can order disclosure.
Use of written reports not in evidence
The court confirmed that a report which is provided to the trial judge as an aide-memoire only is not in evidence and, while it can be used to cross-examine the expert on inconsistencies, it is not open to the trial judge to put any weight on anything that was not cross-examined upon. This is a matter of trial fairness. An expert is entitled to be confronted with any apparent inconsistencies and given an opportunity to respond.
Finding re: standard of care that was not pleaded
At trial, the judge held that the defendant had breached the standard of care by failing to provide adequate discharge information and instructions. The court held that since this allegation had not been pleaded or argued at trial, it was an error to make a finding on this issue. However, once again, the court found that this had no impact on the outcome of the case given that the trial judge had found that application of a full circumferential cast was also a breach of the standard of care.
Overall, the findings in Moore are welcome, and will be very important for both counsel and experts moving forward.
Jennifer Hunter is a partner at Lerners LLP and was co-counsel at trial in the Moore v Getahun case.