The Court of Appeal for Ontario has clarified the law in deciding that it is appropriate for counsel to review and discuss draft reports of expert witnesses. In so doing, the Court rejected the reasoning in an earlier trial court decision.

In Moore v. Getahun, the Court of Appeal concluded that the practice of counsel reviewing draft expert witness reports was both long-standing and acceptable. It held that adequate safeguards were in place to protect against counsel interference with an expert's objectivity and impartiality, including lawyers' ethical and professional obligations.

In this FTR Now, we review this much-anticipated decision and its implications for trial advocacy.

BACKGROUND

The issue arose in a medical malpractice case. The trial judge considered a number of issues relating to expert witnesses, including: the role of counsel in the preparation of the expert's written report, the use of draft reports and the court's use of expert witness reports where a conflict exists between the evidence given by the expert at trial and his or her report.

The trial judge referred to Rule 53.03 of the Ontario Rules of Civil Procedure ("Rules") regarding "Expert Witnesses" and concluded that the Rule was meant to address the "hired gun approach" to expert evidence, and to emphasize the importance of expert witness independence and integrity [at para 297]. In light of the Rule and the expert's duty to the court, the trial judge held that "counsel's practice of reviewing draft reports should stop. There should be full disclosure in writing of any changes to an expert's final report as a result of counsel's corrections, suggestions, or clarifications, to ensure transparency in the process and to ensure that the expert witness is neutral" [at para 520].

The trial judge also concluded that where there was an inconsistency between the evidence given at trial by the expert witness and his or her report, the contents of the written report, which was provided to the judge as an aide but not otherwise entered as an exhibit, would be admissible to assess the reliability and credibility of the expert's opinion [at para 73].

This decision caused significant disagreement and debate among experienced trial and appellate lawyers, and clients.

THE COURT OF APPEAL CLARIFIES THE LAW

The Court of Appeal found that the trial judge erred in her analysis of the role of counsel and expert witnesses, as well as in her interpretation of Rule 53.03.

The Court clarified that Rule 53.03 did not change the role of the expert witness in the civil litigation process, but rather served as a "restatement" and codification of the common law principles, specifically that an expert witness must "provide opinion evidence that is fair, objective and non-partisan." The Court held that banning "undocumented discussions between counsel and expert witnesses or mandating disclosure of all written communications is unsupported by and contrary to existing authority" [at para 55]. With this conclusion, the Court endorsed and reinforced the long-standing litigation practice of counsel reviewing and consulting on draft reports prepared by expert witnesses.

The Court identified existing safeguards against the concern that permitting counsel to engage in undocumented reviews of draft expert witness reports may compromise the impartiality of expert witnesses:

  • the ethical and professional standards of the legal profession preclude counsel from interfering with an expert witness' independence and objectivity. Moreover, case law has established that lawyers should be mindful at all times of the need for the witness to remain objective;
  • the ethical standards of other professional bodies require that their members remain impartial and independent when giving expert evidence; 
  • the Rules require that every expert witness be reminded of his or her duty of objectivity and impartiality; and
  • the adversarial process provides effective tools to deal with an allegation of improper interference (e.g. cross-examinations, a trial judge's discretion to disregard evidence).

In addition, the Court held that it would be "bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports." The Court provided this helpful summary:

[63] Consultation and collaboration between counsel and expert witnesses is essential to ensure that the expert witness understands the duties reflected by rule 4.1.01 and contained in the Form 53 acknowledgment of expert's duty. Reviewing a draft report enables counsel to ensure that the report (i) complies with the Rules of Civil Procedure and the rules of evidence, (ii) addresses and is restricted to the relevant issues and (iii) is written in a manner and style that is accessible and comprehensible. Counsel need to ensure that the expert witness understands matters such as the difference between the legal burden of proof and scientific certainty, the need to clarify the facts and assumptions underlying the expert's opinion, the need to confine the report to matters within the expert witness's area of expertise and the need to avoid usurping the court's function as the ultimate arbiter of the issues.

The Court also noted that, subject to certain exceptions, litigation privilege attaches to draft reports, notes and records of consultation between counsel and expert witnesses. Disclosure of such drafts would be "contrary to existing doctrine and would inhibit careful preparation." It would result in "open-ended" inquiry into the differences between a draft and a final report, would interfere with the preparation of a party's case and would prolong the proceedings.

The Court concluded that expert reports which were never introduced as evidence could not be relied upon. These reports have no evidentiary value and cannot be subject to cross-examination. As a matter of trial fairness, a trial judge should not place weight on a "perceived inconsistency" between evidence offered at trial and an expert report never introduced into evidence.

While the Court of Appeal found that the trial judge had erred in the above respects, it found these errors did not result in a miscarriage of justice. The Court therefore upheld the trial judge's determination that the appellant had fallen below a standard of care in the medical treatment of the respondent

IMPLICATIONS

The Court's decision to allow preliminary reviews of expert witness reports, and to protect the privilege that attaches to correspondence between counsel and expert, restores practicality and common sense to the trial advocacy process. The decision also promotes efficiency in the litigation process, by relying on existing means of ensuring the impartiality of expert witnesses, as opposed to presumptively invading the privileged and creative space that exists between counsel and expert. Finally, by clarifying the propriety of this long-standing practice and experience, the Court's decision provides welcome relief to counsel, expert witnesses and clients alike.