Moore v. Getahun balances independence of expert with effective administration of justice
A recent Ontario Court of Appeal decision allowing counsel to consult with experts prior to finalizing reports strikes a necessary balance between the independence and objectivity expected of an expert witness and the need for the effective and efficient administration of justice, says Aurora personal injury lawyer Tim Boland. Moore v. Getahun, 2015 ONCA 55 (CanLII), which reversed a controversial trial ruling, “reaffirms the boundaries for the appropriate interaction of counsel and expert witnesses,” Boland, founding partner with Boland Howe LLP, tells AdvocateDaily.com.
Justice Janet Wilson’s 2014 trial ruling said the practice of lawyers consulting with expert witnesses on draft reports should stop. Writing for the Court of Appeal, Justice Robert Sharpe says, “it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports. 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 the pertinent legal issues in a case.”
Consultation and collaboration between counsel and expert witnesses is essential to ensure the expert witness understands the necessary duties, writes Sharpe. “Counsel play a crucial mediating role by explaining the legal issues to the expert witness and then by presenting complex expert evidence to the court,” says the decision. “It is difficult to see how counsel could perform this role without engaging in communication with the expert as the report is being prepared.” Leaving the expert witness entirely to his or her own devices, or requiring all changes to be documented in a formalized written exchange, would result in increased delay and cost in a regime already struggling to deliver justice in a timely and efficient manner, writes Sharpe. Getahun involved a medical malpractice claim, but the decision will impact all areas of litigation.
The impact of Wilson’s ruling was felt throughout the litigation bar, says Boland. “There was a broad consensus of opinion amongst numerous intervenors that Justice Wilson’s ruling represented a significant change in practice. Imposing such strict controls on discussions with experts created a real chill,” he says. “After Justice Wilson’s decision, everybody was looking for clarity in this area and now we have that. The Court of Appeal decision was well received by the litigation bar.” Expert evidence “must be nonpartisan and restricted to the expert’s area of expertise but it must also be cogent, well organized and responsive to the issues and it is not always possible without some level of consultation with the expert before the report is finalized,” says Boland. “Experts with a lot of experience writing reports and testifying will have a much better appreciation for the appropriate content of a report, but sometimes you need to obtain an opinion from an expert who lacks that experience – a treating doctor, for example. The doctor will need to understand the important difference between scientific certainty and the legal burden of proof.
The doctor will also need to know that the opinions must be restricted to his or her areas of expertise and that the assumptions relied on must be clearly spelled out. Some level of consultation with the doctor is essential to ensure that the report addresses these concerns.”
In more complex cases, the expert must educate the lawyer before a determination can be made as to whether a written opinion will be sought, says Boland. “For example, in one case that went to trial, we retained a former Goodyear scientist to inform us about how automobile tires interact with different road surface conditions, like slush versus snow, to help the court evaluate the effectiveness of municipal snow clearing regulations. Without talking with him on the phone for an hour or so we would never know whether he could present an opinion that would be of assistance to the court,” says Boland. “If you can’t talk to the expert, you’re really at a disadvantage in terms of what may end up coming up in their reports.”
While the Court of Appeal ruling allows for communications between counsel and experts, Boland says significant limitations remain on what’s considered appropriate. “The courts are still going to expect counsel to make sure that they have advised the expert of their obligation to be nonpartisan and objective,” he says. “The real problem the courts are trying to eliminate is counsel overstepping the boundaries of communication by attempting to persuade an expert to express an opinion that the expert doesn’t believe or agree with. “This isn’t new at all,” he says. “The courts have always insisted that experts must not assume the role of advocates for the parties who retain them. I suspect we will see more cases where the courts come down hard on experts and even counsel where these boundaries are not strictly adhered to.”
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