Moore v. Getahun, 2015 ONCA 55

This case deals with an appeal in a medical malpractice suit. However, central issues on the appeal relate to the use of expert reports in trials. This summary focuses on those issues. The trial judge held that it was improper for counsel to assist an expert witness in the preparation of the expert’s report. The trial judge further considered the expert’s reports, which were not entered into evidence, nor subjected to cross-examination, but rather were tendered as an aide memoire, to make credibility assessments. The OCA held that the trial judge had erred in both of these respects. 

During trial, one of the experts testified that he sent a draft report to counsel for review, and that his final report was produced after a ninety minute telephone call with counsel. The judge asked for production of the draft reports and scrutinized the notations and changes made. The trial judge’s ruling stated a strong disapproval for the practice of counsel reviewing draft expert reports, and indicated that there should be full disclosure of any changes to an experts report as a result of counsel’s corrections, suggestions or clarifications. On appeal, numerous groups on all sides of court proceedings intervened. The OCA concluded that the submissions of the parties and the interveners indicated that if accepted, the trial judge’s ruling would represent a major change in practice, as it is widely accepted that consultation, within limits, between counsel and experts is necessary to ensure the efficient and orderly presentation of expert evidence.

The OCA held that the amendments to the rules of civil procedure did not change the law with respect to expert witnesses, they just codified the basic common law principles. Furthermore, the changes “suggested by the trial judge find no support in the various reviews and studies on civil justice reform”. Banning all “undocumented discussions between counsel and expert witnesses or mandating disclosure of written communications is unsupported by and contrary to existing authority.” The OCA held that lawyers should keep the expert’s need to remain objective at the front of their minds, that the ethical standards of other professional organizations also require their members to be independent and impartial when giving evidence, and cross-examination is an effective tool to deal with situations where there is a suggestion that counsel improperly influenced a witness. Furthermore, the OCA held that expert witnesses need the assistance of lawyers to ensure their reports are framed in a way that is understandable and responsive to the issues.

The OCA held that the draft reports of experts not called are privileged, as are drafts, notes and records of any consultations even when the expert is called. Disclosure may be required only in certain circumstances. Litigation privilege cannot be used to shield improper conduct; however, a factual foundation is required before a party can demand production of draft reports. Evidence of a 90 minute call plainly does not meet the threshold for an allegation of improper influence. Thus, the trial judge erred in ordering production of the drafts and notes in this case.

During the trial, the judge also asked several times for the expert reports to be made exhibits. Counsel refused these requests. The reports were only given to the trial judge as an aide memoire. Thus, the OCA held it was an error of law to consider them. The reports have no evidentiary value. If a witness was not cross-examined on inconsistencies between their testimony and their report, it was not open to the judge to place any evidence in assessing credibility on the perceived inconsistency.