Restrictions on communication with experts: Advocacy groups provide guidance on Moore v. Getahun

The Superior Court's January decision in Moore v. Getahun¹ has caused concern, anxiety² and even outright defiance in the bar as lawyers opt to discard³ Justice J. Wilson's central finding in the case-that counsel cannot consult privately with their experts once they've received first drafts of their expert reports-in the wake of the case's pending appeal. In the interim, two prominent advocacy groups have stepped forward to provide guidance for counsel caught between the prospects of adverse findings at trial for ignoring Moore v. Getahun and of prejudicing their clients' cases by following the ruling.

The Decision in Moore v. Getahun

It bears (briefly) revisiting Justice Wilson's conclusions in the case, a personal injury action concerning medical opinions about a motorcycle accident and the medical treatment that followed. The controversy concerned a lengthy telephone call between counsel and an expert concerning a draft report. The trial judge found this communication-which would be considered routine by many if not most counsel-improper:

[50] 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.

[51] 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.

[52] I do not accept the suggestion in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC 272 (CanLII), 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.]

Commentators have been quick to point out that compliance with this decision means counsel-and judges-should expect to be saddled at trial with reports that are disorganized, poorly written, based on mistaken assumptions, or that miss the point, since counsel cannot steer their experts in the right direction without being required to disclose every minor correction or innocuous suggestion to opposing counsel, and risking exposing their experts to charges of bias.

It is perhaps worth noting that in the nearly six months since the release of Moore v. Getahun, the case has been referenced in only a handful of decisions, none of which has rejected Justice Wilson's conclusions on this issue or applied them.⁴

Advocacy Groups Weigh In

Notwithstanding what may be judicial reluctance to follow Justice Wilson's lead, two leading advocacy groups have come forward with guidance for the profession in the hope of both providing useful principles to help lawyers in their daily dealings with experts, and of arming them with authority to defend their practices if called into question by courts.

The Holland Group

The first to wade into the debate was the Holland Group (comprised of plaintiff and defence counsel in the medical malpractice bar), releasing a position paper⁵ that takes a firm stand against Moore v. Getahun. The Group's contribution is notable, among other reasons, for its criticism of Justice Wilson's invoking Justice Coulter Osborne's 'Osborne Report' to support her position. The paper states that her reasons misconstrue the Report's findings with respect to the 2010 changes to Rule 53.03.⁶ The Group's position is particularly credible because the Group is, as it happens, chaired by Justice Osborne.

The Group makes the case for counsel continuing to review and shape expert reports:

All members of the Holland Group engaged in medical malpractice litigation currently review draft expert reports and discuss draft expert reports with their authors, with a view to ensuring that the finished product appropriately serves the many purposes of an expert report, including notice to opposing counsel, a sufficient recitation of the factual underpinnings and assumptions within the report and an explanation concerning the specific details and basis for the expert's opinion. The Holland Group's very firm consensus is that such communications are necessary to achieve the important purposes set out above.

...

As such, the Holland Group unanimously and firmly supports the practice, which it believes to be in the category of best practices, of counsel reviewing draft reports and communicating with experts as necessary to ensure the delivery of appropriate expert reports.

[Emphasis added.]⁷

The Group draws a line at counsel attempting to change the substance of an expert's opinion and offers a means of testing whether an expert's opinion is genuinely held:

The members of the Holland Group unanimously agree that it is inappropriate for counsel to persuade or attempt to persuade experts to articulate opinions that they do not genuinely hold, and that it is of paramount importance that the expert genuinely believes the opinion that he or she articulates both in the expert report and in the witness box. In some circumstances additional opinions bearing on the particular case not already articulated by the expert should be put to the expert to determine whether such views are compatible with their expert opinion.

[Emphasis added.]⁸

The Group's paper puts the bench on notice of its members' intention to ignore Moore v. Getahun until the Court of Appeal has had its say:

Recognizing that the Moore decision, like any decision of the Superior Court, is entitled to careful consideration and respect, the unanimous view and recommendation of the members of the Holland Group is to continue the best practices described above pending a decision of the Ontario Court of Appeal in the Moore case. That is, Holland Group members intend to continue to review draft expert reports and to communicate with experts appropriately to ensure that expert reports filed in their cases are of high quality and ultimately of assistance to the parties and the Court.

[Emphasis Added.]⁹

The Holland Group is seeking intervener status in the appeal of Justice Wilson's decision.

The Advocates' Society

If the Holland Group draws its authority on this issue from the fact that it speaks for the medical malpractice bar-recall that Moore v. Getahun was a medical malpractice case-the Advocates' Society's submission (which takes the form of a brief set of principles,¹⁰ and a longer position paper including those principles¹¹) is the product of a broad consultation across several areas of practice¹² and various stakeholder groups in the profession.¹³

Of greatest importance to counsel seeking to rely on the principles in court (much in the way in which counsel and the bench refer to the Society's Principles of Civility in numerous cases) will be the Society's rejection of Justice Wilson's decision and its affirmation of the propriety and necessity of ongoing consultation between counsel and experts, regardless of the stage of the proceeding or the status of the expert's report. What might prove to be of equal importance in insulating lawyer-expert consultation from criticism are the prophylactic steps set out in principles 5-8 (below). Counsel may wish to consider providing a copy of the principles to their experts, as well as preparing a standard-form document to provide to experts at the outset of their engagement (understanding that it would be producible in a proceeding) providing the information called for in these principles. This would allow counsel to state with certainty what a given expert was told in the course of her or his retainer.

The principles themselves merit quoting verbatim:¹⁴

PRINCIPLE 1

An advocate has a duty to present expert evidence that is: (i) relevant to the matters at issue in the proceeding in question; (ii) reliable; and (iii) clear and comprehensible. An appropriate degree of consultation with testifying experts is essential to fulfilling this duty in many cases. An advocate may therefore consult with experts, including at the stage of preparing expert reports or affidavits, and in preparing experts to testify during trials or hearings. An advocate is not required to abandon the preparation of an expert report or affidavit entirely to an expert witness, and instead can have appropriate input into the format and content of an expert's report or affidavit before it is finalized and delivered.

PRINCIPLE 2

At the outset of any expert engagement, an advocate should ensure that the expert witness is fully informed of the expert's role and of the nature and content of the expert's duties, including the requirements of independence and objectivity.

PRINCIPLE 3

In fulfilling the advocate's duty to present clear, comprehensible and relevant expert evidence, the advocate should not communicate with an expert witness in any manner likely to interfere with the expert's duties of independence and objectivity.

PRINCIPLE 4

The appropriate degree of consultation between an advocate and a testifying expert, and the appropriate degree of an advocate's involvement in the preparation of an expert's report or affidavit, will depend on the nature and complexity of the case in question, the level of experience of the expert, the nature of the witness's expertise and other relevant circumstances of the case.

PRINCIPLE 5

An advocate should ensure that an expert has a clear understanding of the issue on which the expert has been asked to opine. An advocate should also ensure that the expert is provided with all documentation and information relevant to the issue they have been asked to opine on, regardless of whether that documentation or information is helpful or harmful to their client's case.

PRINCIPLE 6

An advocate should take reasonable steps to protect a testifying expert witness from unnecessary criticism.

PRINCIPLE 7

An advocate should inform the expert of the possibility that the expert's file will be disclosed, and should advise the expert witness not to destroy relevant records.

PRINCIPLE 8

At the outset of the expert's engagement, an advocate should inform the expert of the applicable rules governing the confidentiality of documentation and information provided to the expert.

PRINCIPLE 9

In appropriate cases, an advocate should consider an agreement with opposing counsel related to the non-disclosure of draft expert reports and communications with experts.

The Debate Continues

It is too early for these papers and principles to have been cited in jurisprudence. It will be interesting to see whether and how they shape the debate in the upcoming appeal of Moore v. Getahun itself.