The downside of judge’s ruling on reviewing draft expert reports

While a judge had commendable goals in declaring an end to lawyers’ practice of reviewing draft expert reports, her recent Superior Court decision may have the unwelcome consequence of affecting who counsel retain as experts.

According to Justice Janet Wilson’s conclusions in Moore v. Getahun on Jan. 14, counsel’s practice of reviewing draft expert reports must stop and meetings with experts to go over the reports are no longer acceptable.

In Moore, the plaintiff had developed compartment syndrome and claimed it was as a result of negligent medical treatment he received on his fractured wrist following a motorcycle accident.

Like many experts, the defence medical expert had prepared a draft report and had sent it to his counsel for comments.

In reviewing the expert’s file at trial, plaintiff’s counsel found the draft reports as well as the notes in relation to a 1-1/2 hour telephone conference with defence counsel.

While the defence expert suggested the amendments to the report were slight changes such as headings and punctuation, Wilson concluded the meeting between the expert and his counsel addressed more than simply superficial cosmetic changes. In fact, Wilson noted there were deletions or modifications to some content that was helpful to the plaintiff. Wilson found that while the expert’s opinion didn’t change as a result of the discussions, defence counsel’s suggestions certainly helped to shape it.

Wilson took great issue with the common approach by counsel towards reviewing draft reports. She stated: “For reasons that I will fully outline, the purpose of Rule 53.03 is to ensure 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.”

With respect to the issue of how counsel may be able to appropriately give feedback to an expert on a report, Wilson suggests it must be in writing with disclosure to the opposing party. “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,” she wrote.

Wilson expressed her view that Rule 53.03 precludes meetings between counsel and an expert in relation to a draft report since they lead to a perception of bias or actual bias and put lawyers in conflict as a potential witness. “The practice formerly may have been for counsel to meet with experts to review and shape expert reports and opinions. However, I conclude that the changes in Rule 53.03 preclude such a meeting to avoid perceptions of bias or actual bias. Such a practice puts counsel in a position of conflict as a potential witness, and undermines the independence of the expert.”

To comply with Wilson’s comments, counsel will now have to receive the expert’s final report without having reviewed a draft and then, if necessary, request any clarification in writing while disclosing any such letter to opposing counsel as an attachment to any addendum report.

With the inability to review draft reports, counsel will only engage experts they know to be extremely familiar with expert report writing and the complexities that come along with it. Those complexities include an understanding of the various causation and legal tests.

While Wilson’s reasoning on this issue appears to have the commendable goal of ensuring experts can freely voice their unbiased opinions without interference or pressure from the retaining lawyer, her comments may have the unwelcome consequence of forcing counsel to rely only on experienced professional experts they know will use the correct lingo. As a result, it would perhaps be better to address the hazards of reviewing draft reports through effective cross-examination.