Good news from Ontario appellate court over expert draft reports

BVWireIssue #149-1
February 4, 2015

When a Canadian trial court decided last year to strictly control the interaction between experts and counsel and compel production of draft reports, business valuators mobilized. Together with lawyer associations, they supported the ensuing appeal. The Court of Appeal’s newly released decision is cause for cheer.

Stop the collaboration: In a medical malpractice case, the Ontario Superior Court of Justice examined the admissibility of expert evidence under Rule 53.03 of the Ontario Rules of Civil Procedure. It said that a 2010 amendment to the rules had been specifically aimed at counteracting the “hired gun approach” and ensuring the expert witness’s independence and integrity. As the superior (trial) court saw it:

The expert’s primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude that counsel’s prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.

The court went on to say that “if after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.”

The opinion generated a wave of criticism from the legal profession and the community of expert witnesses. The Canadian Institute of Chartered Business Valuators and the Advocates’ Society were among the six groups that intervened in the appeal.

Bad policy: The Ontario Court of Appeal sided with the challengers. It disagreed with the trial court’s proclamation that the 2010 amendment introduced a “change in the role of expert witnesses.” It did not create new duties for expert witnesses, the reviewing court said. Even though some judges have voiced concern about the impartiality of expert testimony, “banning undocumented discussions between counsel and expert witnesses or mandating disclosure of all written communications is unsupported by and contrary to existing authority.” The most effective way to expose “partisan expert evidence” is the use of cross-examination, the appeals court noted.

It agreed with the “interveners” that proscribing interaction between counsel and expert witnesses made for bad policy. “Just as lawyers and judges need the input of experts, so too do expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to pertinent legal issues in a case.” Attorneys need to make sure the expert understands critical legal concepts, such as who has the burden of proof and “scientific certainty,” and that the report conforms to the applicable rules of civil procedure, the appeals court pointed out.

The trial court’s approach would increase delay and cost, the Court of Appeal added. Attorneys would resort to “shadow experts” for advice and would opt to destroy draft reports that could be improved through editing. If anything, precluding collaboration would provide an incentive for using “hired guns” because the latter might require less guidance and preparation.

The appellate decision spells victory for experts, but it did not change the outcome of the case. The trial court’s evidentiary errors did not result in a miscarriage of justice, the appeals court concluded. It refused to order a new trial.

Takeaway: Even though this opinion carries no weight in U.S. courts, it merits attention from practitioners in this country. In addition to discussing the discovery rules applicable to draft expert reports, the Ontario appeals court provides a rationale for why mandatory disclosure and production of drafts has a negative effect on a party’s case and on judicial proceedings.

Find an extended discussion of Moore v. Getahun, 2015 ONCA 55 (Jan. 29, 2014) in the March edition of Business Valuation Update. The court’s opinion will appear soon at BVLaw. For prior coverage of the case, click here.

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