On January 14, 2014, a decision issued by Madam Justice Wilson in the case of Moore v. Getahun 2014 ONSC 237 ("Getahun") created a stir in the legal community with implications for legal practitioners who work with experts that appear before courts and tribunals.
Getahun was a medical malpractice case in which a plaintiff alleged that an emergency room physician negligently treated a wrist fracture which resulted in compartment syndrome from a cast that was applied too tightly.
After being treated initially by the defendant, the plaintiff went to a different hospital emergency room complaining of increased pain and swelling which necessitated emergency surgery to relieve pressure. The corrective surgery was unable to reverse all of the damage to the muscles resulting in permanent injury to the plaintiff.
Counsel Review and Correction of Reports
At trial the defence called a physician to testify as an expert with respect to the treatment provided by the defendant. During the expert’s evidence, plaintiff’s counsel reviewed the expert’s file and found notes regarding a 90 minute phone call during which defence counsel reviewed the physician’s draft report and suggested changes and corrections for the final report.
Citing the Rules of Civil Procedure as they apply to expert’s reports, Justice Wilson stated:
For reasons that I will more fully outline, the purpose of Rule 53.03 is to ensure the expert witness' independence and integrity. 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.
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.
I do not accept the suggestion in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC 272, 211 N.S.R. (2d) 201, that discussions with counsel of a draft report go to merely weight. The practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 53.03 as well as the expert's credibility and neutrality [emphasis added].
Rule 53.03 of the Rules of Civil Procedure provides:
53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference required under Rule 50, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48.
(2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48.
(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:
1. The expert’s name, address and area of expertise.
2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.
3. The instructions provided to the expert in relation to the proceeding.
4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
6. The expert’s reasons for his or her opinion, including,
i. a description of the factual assumptions on which the opinion is based,
ii. a description of any research conducted by the expert that led him or her to form the opinion, and
iii. a list of every document, if any, relied on by the expert in forming the opinion.
7. An acknowledgement of expert’s duty (Form 53) signed by the expert. O. Reg. 438/08, s. 48.
Other Ontario Case Law
Getahun appears to conflict with an earlier decision of the Ontario Superior Court concerning expert reports, Mendlowitz v. Chiang (Berenblut), 2011 ONSC 2341. In that case, an expert produced reports that included tables prepared by counsel’s staff. With respect to this issue, the court found the origin of the tables to be irrelevant provided source documentation was available to verify the accuracy of the table.
The court also considered whether it was appropriate for counsel to make suggestions to the expert regarding substantive changes to the report and whether draft reports must be retained. The court stated:
I am satisfied that it is appropriate for counsel for the plaintiffs to make suggestions to Mr. Berenblut and his staff. In this way, counsel will come to understand the report, and Nera Economic Consulting can get the benefit of any information which counsel has that may have been inadvertently excluded from the report.
It is not possible to know whether counsel made suggestions which were incorporated into subsequent drafts of the report because all prior drafts are destroyed when a new version is produced. Mr. Berenblut agreed that one of the reasons Nera Economic Consulting follows this practice is to prevent cross-examination on earlier drafts of their report.
In my view, it is not necessary for an expert to keep all previous drafts of a report. It is possible that the failure to keep previous drafts could become an issue for the judge on a voir dire concerned with the admissibility of opinion evidence. It is not possible to imagine all situations which might occur and, therefore, I do not propose to define or create a list of such situations.
In this case, I am satisfied, based on Mr. Berenblut's evidence, which, apart from the documentary exhibits was the only evidence on the voir dire, that Mr. Berenblut did exercise independent judgment about the contents of his report and did not include anything which he felt he could not defend by reference to source documentation. The characterizations and conclusions in the January 7, 2011 report do not appear to be unsupported characterizations and conclusions.
Accordingly, for the purpose of determining the threshold reliability of Mr. Berenblut's evidence, I attach no significance to the failure to maintain earlier drafts of reports [emphasis added].
The decision suggests that counsel input is appropriate and that draft reports may not need to be retained provided the expert can defend the opinions and conclusions included in the final report by reference to source documentation.
This decision conflicts with Getahun to the extent that it endorses counsel review of and input to draft reports. In addition, although Getahun makes a fleeting reference to whether changes made to draft reports at counsel’s suggestion go to the admissibility of the evidence, rather than the weight to be given to the evidence, the case law to date suggests it is only relevant as to weight. It is noted that the court in Getahun did not find the revised report inadmissible.
In another case before the Ontario Superior Court, Thermapan Structural Insulated Panels Inc. v. Ottawa (City), 2014 ONSC 2365 (“Thermapan”) on a motion for production, a Master considered the extent of disclosure with respect to experts’ files suggested by the ruling in Getahun. In this case, a party sought access to the contents of an expert’s entire file to test the expert’s independence, objectivity and credibility. The party seeking production took the position that service of the expert’s affidavit operated as an automatic waiver of privilege attached to the file.
As a rule, litigation privilege attaches to communications between lawyers and experts in the context of ongoing or contemplated litigation making such communications in an expert’s file immune from a discovery request.
Counsel for the party seeking disclosure relied on Getahun as the basis to argue for full disclosure of the contents of the file. The court rejected the request stating:
The recent changes to Rule 53.03 and the role of the expert have recently led Justice J. Wilson to conclude that the previous practice of counsel reviewing expert reports "should stop" in order to ensure that the expert witness remains "neutral". See Moore v. Getahun, 2014 ONSC 237 (Ont. S.C.J.) at paragraph 520.
However, for the reasons that follow, it is my view that the evolution of the role of the expert witness has not yet reached the point where this court should automatically require full disclosure of an expert's entire file as a matter of course [emphasis added].
After reviewing existing case law regarding production of experts’ files, the court rejected the notion of automatic full disclosure finding that service of a report operates as a limited implied waiver of the litigation privilege only with respect to material related to formulation of the expert’s opinion. The court distinguished cases that militated toward full disclosure as follows:
In my view, the principle that the implied waiver should be narrowly construed remains the law of Ontario. I note that in Moore,[Getahun] there was an admission by the expert witness that he had reviewed his draft report with counsel and made "corrections" as a result. See Moore at paragraph 47.
There is simply no suggestion in the evidence before me of any concern about the conduct of Ottawa's expert. There is no evidence on which it could be argued that the expert is anything other than independent. This is to be distinguished from Ebrahim where the expert acknowledged that he did not draft his own expert report. As can be seen from the excerpt above, this was the determining factor in Justice Brown's decision to order production of written correspondence with counsel and prior drafts of the expert's report. No circumstances exist on the evidence before me to justify such an order [emphasis added].
Thermapan appears to suggest that it is only in cases where an expert’s independence is in question, for example where the expert admits to making corrections to a draft report as a result of consultation with counsel or admits to not being the author of the report that a court would order production of the entire file. Absent these presumably rare circumstances, this case suggests that litigation privilege would still protect communications in the file between counsel and an expert notwithstanding the Getahun decision.
Unintended Consequence of Getahun
In spite of the laudable goal of ensuring the impartiality of experts to protect the integrity of the justice system, the Getahun decision has the potential to limit access to justice by increasing the costs of litigation and ignores the utility of counsel review of draft expert reports and the service this practise provides to the trier of fact.
The reasons lawyers cite for supporting the practice of meeting with experts to discuss and review draft reports include:
- Ensuring factual accuracy
- Correcting grammar and/or spelling errors
- Focusing the discussion on issues and providing opinions only within the expert’s area of expertise
- Improving clarity and preventing misinterpretation
- Testing the views of experts and assessing reliability of the opinions stated and conclusions reached in the report
It has been suggested by some, including the Holland Group (see below) that if the practice of meeting with experts and reviewing draft reports is discontinued, counsel may be compelled to retain a second expert to ensure all necessary issues are addressed which will increase the cost of litigation thus limiting access to justice. In addition, courts and tribunals will have to deal with reports that may not be comprehensive or comprehensible which require time to fully explain and clarify resulting in longer trials and increased costs.
Members of the Medical Malpractice Bar Weigh-in
One group of lawyers made up of leading practitioners in the field of medical malpractice representing both plaintiffs and defendants has released a position paper arguing against complying with the ruling in Getahun. The Holland Group encourages lawyers to continue the practice of communicating with experts to discuss and review draft reports while agreeing that attempts to persuade experts to articulate opinions they do not genuinely hold are clearly improper.
Interestingly, in part Getahun purports to justify its conclusions by reference to a report authored by Justice Coulter Osborne titled Civil Justice Reform Project: Summary of Findings & Recommendations. However, Justice Osborne who leads the Holland Group takes the position shared unanimously with the other members of the group, that Getahun misconstrues the findings of the report and reaches conclusions not intended in the report. The group argues that the changes to Rule 53.03 were intended to address concerns about bias in expert reports but not stifle the important dialogue that occurs between counsel and experts.
The Holland Group intends to seek leave to intervene in the upcoming appeal of the Getahun decision.