On January 29, 2015, the Ontario Court of Appeal released its judgment in Moore v. Getahun,1 a decision that provides important clarity regarding the preparation and use of expert reports in the context of civil actions. The decision holds that:

  • The 2010 amendments to the Rules of Civil Procedure with respect to expert witnesses do not create new duties but rather codify and reinforce existing common law principles;
  • Consultation between counsel and expert witnesses in preparing expert reports, within certain limits, is necessary to ensure the efficient and orderly presentation of expert evidence and the timely, affordable and just resolution of claims;
  • Draft reports, notes and records of any consultation between experts and counsel, even where the party intends to call the expert as a witness, are protected by litigation privilege;
  • Where the party seeking production of draft reports or notes of discussions between counsel and an expert can show reasonable grounds to suspect that counsel communicated with an expert witness in a manner likely to interfere with the expert witness’s duties of independence and objectivity, the court can order disclosure of such discussions; and
  • Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a party should not be allowed to demand production of the draft reports and other communications between counsel and expert witnesses. Consultation between counsel and an expert witness on an expert report does not meet this threshold.

Facts

The respondent (plaintiff) had been in a motorcycle accident and was treated for a wrist fracture by the appellant (defendant) orthopedic surgeon. The respondent suffered permanent damage to the muscles in his arm, which he alleged was caused by the appellant’s negligence.

At trial, the appellant’s expert witness indicated during cross-examination that he had sent a draft of his report to the appellant’s counsel for review and had produced his final report after an hour-and-a-half conference call with counsel. The trial judge expressed concern over this, and questioned the expert on his draft reports and meetings with appellant’s counsel. The trial judge also instructed the expert to provide the court with any records relating to the drafts and communication with counsel, leading to a detailed review of the expert’s draft report and the notations and changes he made as a result of discussing the drafts with appellant’s counsel.

In her reasons, the trial judge preferred the evidence of the respondent’s expert over that of the appellant’s expert. The trial judge found that the 2010 changes to rule 4.1.01(1) and rule 53.03 of the Rules of Civil Procedure, governing the use of expert witnesses at trial, had introduced a “change in the role of expert witnesses.” The trial judge held that the practice of discussing draft reports with counsel should stop as it “is improper and undermines both the purpose of Rule 53.03 as well as the expert’s credibility and neutrality.”

However, the trial judge did not explain which changes made by the expert to his report following discussion with counsel were significant. The trial judge also held that if any changes are made as a result of counsel’s communication, they should be fully disclosed in writing.

Communications with experts

On appeal, the appellants and various interveners argued that the trial judge erred at law in holding that it was improper for counsel to assist an expert witness in preparing the expert’s report. The Court of Appeal described the changes made to the expert’s report as relatively minor editorial and stylistic modifications intended to improve the clarity of the reports. It further found no significant change in substance to the final report and no evidence this report reflected anything other than the expert’s own genuine and unbiased opinion.

The Court of Appeal found that, contrary to the opinion of the trial judge, the 2010 amendments to rule 53.03 did not create new duties but rather codified and reinforced basic common law principles relating to expert witnesses.

The Court of Appeal was clear that, “Banning undocumented discussions between counsel and expert witnesses or mandating disclosure of all written communications is unsupported by and contrary to existing authority.” Instead, the Court of Appeal observed that, “Expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case.”

In coming to this conclusion, the Court of Appeal noted that the objectivity of expert witnesses is fostered under existing law and practice in a number of ways, including by virtue of the professional and ethical standards of both lawyers and witnesses, and by a court’s ability to reject or assign lesser weight to expert opinion that is discredited via cross-examination.

Documenting exchanges on draft reports between counsel and experts

The Court of Appeal further noted that draft expert reports, notes and records of any consultations between experts and counsel are protected by litigation privilege. As such, these materials cannot be made subject to automatic disclosure as doing so would discourage participants from reducing preliminary or tentative views to writing and would unduly interfere with the orderly preparation of a party’s case.

Indeed, the Court of Appeal affirmed that “absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert,” a party should not be allowed to demand production of draft reports or notes of communication between counsel and expert witnesses.

Requiring all changes to drafts of expert reports to be documented in a formalized written exchange was also rejected by the Court of Appeal. It reasoned that doing so would result in increased delay and cost in a regime that already faces challenges in delivering timely and efficient justice.  

Expert reports not entered as exhibits

The appellant also argued that the trial judge erred when, in assessing the credibility of the expert witness, she considered contradictions between the expert’s viva voce evidence and his written reports, which had not been filed into evidence but provided to the trial judge only as an aide memoire.

The Court of Appeal held that trial judge erred at law in discounting viva voce evidence of the expert that apparently conflicted with the contents of his expert report, where the expert was not cross-examined on that discrepancy and given a chance to explain it.

Conclusion

The Court of Appeal’s decision in Moore v. Getahun offers much-needed clarification on the treatment of exchanges between counsel and expert witnesses on draft reports. Except where, on evidence, there are reasonable grounds to suspect that counsel communicated with an expert witness in a manner likely to interfere with the expert witness’s duties of independence and objectivity, communications between counsel and an expert witness should not be ordered disclosed and should be protected under litigation privilege.