THE ADVOCATES’ SOCIETY DRAFTS A POSITION PAPER ON COMMUNICATIONS WITH TESTIFYING EXPERTS

Is it improper for an expert to discuss a draft report with counsel and to possibly modify the draft report prior to submitting it?

This is a issue that was addressed by Madame Justice Wilson in her recent decision in the case of Moore v. Getahun, 2014 ON SC 237 (“Moore”)

Madam Justice Wilson answered this question in the positive. She held that the 2010 changes to the Rules of Civil Procedure in Ontario requiring an expert to certify that they are providing opinion evidence “that is fair, objective and non-partisan” renders such communication and alteration of the draft report improper.

In June 2014 the Advocates’ Society issued a position paper on Communications with Testifying Experts.

Such paper disagreed with Madam Justice Wilson’s decision in this regard.

The Advocates’ Society struck a Task Force to deal with communications with experts. Their position paper was released in June of this year and can be found on their website.

They submitted that the changes to the Rules did not change the law, but really codified the law that had previously existed. They agreed with Mr. Justice Lederman’s decision in the Ontario Superior Court case of Henderson v. Rizzi that held that the amendments “impose no higher duties than already existed at common law on an expert to provide opinion evidence that is fair, objective and non-partisan. The purpose of the reform was to remind experts of their already existing obligations”.

The committee was of the view that there was a role for counsel to play in interacting with experts to ensure that their reports are presented in a cogent, sustained and well organized fashion that will assist trial judges, juries and administrative tribunals.

The task force was concerned that although well-intentioned the unintended consequences of following the dictum in Moore may be to raise a barrier so that novice experts, who require a higher level of instruction by consultation with counsel, might be deterred from preparing reports. This could result in the experienced “professional experts” preparing more reports and the novices being eliminated from the field, with the result of increased litigation expense favouring affluent litigants and ultimately impairing access to justice.

The task force comes up with a list of nine limiting “principles” that counsel should keep in mind if they should have any communication with and discussion concerning the possible alteration of draft reports.

One possible source of confusion on this topic is that whereas the Rules require that opinion evidence proffered by experts be “fair, objective and non–partisan” some of the case law, including that in the Moore decision go on to describe the expert witness as being “independent”

For those of us who are old enough we may recall in decades gone by the experience of the defense orthopod in personal injury cases who appeared to practice exclusively giving defense medical opinions. The reports produced were very similar, if not identical, with merely the names changed and the conclusion reached that each soft tissue injury sufferer was a malingerer making unfounded claims.

This type of extreme case makes it easy to understand why there had been considered to be a need to stipulate that expert reports should provide opinion evidence that is “fair, objective and non–partisan“. Of course a report that is seen to be fair, objective and non–partisan will generally speaking carry more weight with the trier of fact than one that is clearly biased. To that extent the Rules really did simply codify what was appropriate practice from the preceding time.

I will suggest, however, that if a court goes on to seek to insure expert witness independence then this could muddy the waters as to the relationships between the various actors in the civil litigation.

Civil litigation is carried on in an adversarial system in our Province (apart from Rule 52.03 very seldom used, by which the Court may appoint a truly independent expert).

When a Court injects the term “independent”, or “independence” with regard to the topic of expert evidence the issue can become murky if for no other reason than the fact that this term has different meanings, or shades of meaning.

One dictionary definition that I have reviewed defines the word “independent” to mean “not relying on another or others for aid or support.”

In this sense an expert hired and paid for by one of the parties in an adversarial piece of litigation is clearly not independent. They are paid by one of the parties and hence they receive and are relying upon for their livelihood financial support from the party hiring them.

Another definition of the same word though defines it as meaning “not influenced or controlled by others in matters of opinion, conduct, etc.; thinking or acting for oneself…”.

In this sense an expert should be and should be seen to be not controlled by the party or lawyer retaining them, but rather thinking independently for themselves.

Query whether the party retained expert should also not be “influenced” by the party retaining them.

I suggest perhaps Madam Justice Wilson was applying this definition of the term “independent” when she held that retaining counsel should not even be reviewing draft reports before they are issued as final as this would offend the expert witness’ “independence and integrity”.

I would suggest that by retaining the expert, and setting the parameters of the very question that is sought to be answered that retaining counsel inevitably will be influencing the opinion of the expert retained. I would further suggest that this is not necessarily a nefarious thing.

In the balancing of what behavior is appropriate between retaining counsel and the expert retained, I would suggest that it comes down to a matter of transparency. All counsel should be alive to the fact and should be forewarned that their communications with the expert retained are going to be open to scrutiny.

Although they will be retaining the expert and setting the parameters of the question asked, and perhaps engaging in dialogue with the expert over draft reports in order to, at least ensure that the question is properly understood and addressed, counsel should be aware that all such communications will be susceptible to being produced and aired before the open court – they should govern themselves accordingly in their communication.

In all instances, counsel should communicate with the expert the provisions of Rules 4.1 and 53.03 and the certificate mandated by that Rule. Further all counsel should ensure that all communication with the expert is comprehensive with respect to the material provided to them and is seen to be fair, objective and non– partisan, both to stay on the fair side of the rule, but also to ensure that the desired expert’s report is given the weight it deserves.