Ontario litigators breathed a sigh of relief last Thursday when the Court of Appeal overturned a trial judge’s ruling that it was improper for a lawyer to review and discuss draft expert reports with an expert witness, and that such discussions must be documented and disclosed to an opposing party.
During the course of cross examination of an expert at the trial of a medical malpractice claim, it emerged that an expert had reviewed his draft report with defence counsel in a 90 minute phone call, and made changes to the draft. The judge took up the issue and directed the expert to return to court with his draft reports and the notes he made while discussing them with counsel. The judge questioned the expert on the precise changes he made as a result of those discussions and concluded the changes were significant. She found the expert’s opinion was “shaped by defence counsel’s suggestions”. She wrote:
“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.”
Her Honour ruled the practice of reviewing experts’s reports should stop and that all discussions between expert witness and counsel should be subject to disclosure and production.
In the words of Sharpe J.A. writing for the court (Laskin J.A. and Simmons J.A. concurring), this ruling “caused considerable concern in the legal profession and in the community of expert witnesses.”
After stating there was nothing in the record to indicate any impropriety by defence counsel or the expert, Sharpe J.A. conducted a detailed review of the law governing expert’s reports.
He noted the changes to Rule 53.03 did not create new duties but codified and reinforced basic common law principles. He found the independence and objectivity of experts is sufficiently fostered by the ethical standards of legal and other professional bodies, and by cross examination.
The court concluded the well-established practice of counsel meeting with expert witnesses to review draft reports should not be disturbed.
On the question of the production of notes and drafts of the report, the ONCA ruled these documents, and any records of consultations between experts and counsel, fall into the “zone of privacy ” created by litigation privilege. The privilege is qualified however. Foundational information mandated by Rule 53.03(2.1) must be disclosed. In addition the privilege yields where required to meet the ends of justice, for example where there are reasonable grounds to suspect counsel communicated with an expert in a manner likely to interfere with the expert’s duty of independence and objectivity.
The finding by the trial judge that all changes in the expert’s report should be routinely documented and disclosed, has now been set aside.