Canadian Underwriter

Ontario appeal court rules on discussions between defence lawyers and expert witnesses

January 30, 2015   by Canadian Underwriter

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The Court of Appeal for Ontario suggested this week that lawyers representing clients in lawsuits can discuss and review draft reports with expert witnesses and do not need to disclose all written communications.

“While some judges have expressed concern that the impartiality of expert evidence may be tainted by discussions with counsel …. banning undocumented discussions between counsel and expert witnesses or mandating disclosure of all written communications is unsupported by and contrary to existing authority, ” wrote Mr. Justice Robert Sharpe of the Court of Appeal for Ontario in a decision released Thursday.

In a medical malpractice case involving a wrist injury, the Court of Appeal for Ontario ruled that defence lawyers may review draft reports from expert witnesses.

Blake Moore, who was injured in a motorcycle accident in 2005, successfully sued Dr. Tajedin Getahun of The Scarborough Hospital – General Division for medical malpractice. Dr. Getahun appealed. Though Dr. Getahun’s appeal was dismissed, the Court of Appeal for Ontario did disagree with the trial judge’s finding that defence lawyers should not review draft reports from expert witnesses.

The other two appeal court judges – Mr. Justice John Laskin and Madam Justice Janet Simmons – agreed with Justice Sharpe. The issue was over section 53.03 of the Rules of Civil Procedure, in Ontario’s Courts of Justice Act, which deals with expert reports.

Court records indicate that in November, 2005, Moore “suffered a high impact fracture to his right wrist and other minor injuries.” He was taken to the emergency room, where Dr. Getahun, “applied a full circumferential cast after a partially successful closed reduction.” Moore returned the following day, “complaining of increased pain, swelling, and that the cast was too tight” and was diagnosed with compartment syndrome.

A fasciotomy was performed but Moore “suffered permanent muscle damage as a result of the compartment syndrome,” according to background information provided by the Court of Appeal for Ontario. The parties agreed, prior to trial, that “should there be a finding of liability, the appropriate award of damages would be $350,000, inclusive of pre-judgment interest.”

In a ruling released in January, 2014, Madam Justice Janet Wilson of the Ontario Superior Court of Justice found in favour of Moore, ruling that Dr. Getahun “did not meet the standard of care of a reasonably prudent general orthopedic surgeon in 2005 in a community hospital in Ontario in applying a full circumferential cast in the facts of this case.”

Dr. Getahun’s lawyer had called Dr. Ronald Taylor to testify as an expert. Court records indicate that his lawyer had a phone conversation, with Dr. Taylor, in 2013, about a draft report.

“Dr. Taylor confirmed that he had sent his draft report ‘to Lerners for comments.’ Dr. Taylor said he was happy with his draft report but Lerners made ‘suggestions’ and he made ‘the corrections over the phone,'” Justice Wilson wrote.

But noting that the purpose of section 53.03 of the Rules of Civil Procedure “is to ensure the independence and integrity of the expert witness,” she concluded – in light of changes made to the law in 2010 – “that counsel’s practice of reviewing draft reports should stop.”

Justice Wilson added: “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.”

Justice Wilson “commented adversely on the consultation between Dr. Taylor and the appellant’s counsel, and on Dr. Taylor’s reaction in the witness stand when confronted with the fact that he had discussed his draft with counsel,” the Court of Appeal wrote.

“The first and most significant legal issue raised on appeal involves the preparation of the written report of one of the appellant’s expert witnesses,” wrote Justice Sharpe. “The trial judge held that it was improper for counsel to assist an expert witness in the preparation of the expert’s report. That proposition is strongly challenged by the appellant and by all of the interveners.”

The interveners in the case were the Criminal Lawyers’ Association, the Ontario Trial Lawyers Association, The Holland Group, the Canadian Defence Lawyers Association, the Canadian Institute of Chartered Business Valuators and The Advocates’ Society.

In explaining its decision, the Court of Appeal noted that the changes in Dr. Taylor’s report for the defence “could be described as relatively minor editorial and stylistic modifications intended to improve the clarity” of his expert report.

“I can see no evidence of any significant change in substance, nor did counsel for the respondent on this appeal point to any such change,” Justice Sharpe noted.

“I reject the trial judge’s proclamation that the practice of consultation between counsel and expert witnesses to review draft reports must end,” Justice Sharpe wrote, but added Justice Wilson’s criticism of defence counsel “did not, in my view, affect the outcome of the trial.”

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