ONCA Preserves Protection of Discussions between Expert Witnesses and Lawyers

ONCA Preserves Protection of Discussions between Expert Witnesses and Lawyers

Moore v Getahun, 2015 ONCA 55

The Ontario Court of Appeal made reference to patent law when it considered the issue of whether it was appropriate for counsel for the appellant, Getahun, who was facing a medical malpractice suit, to have had lengthy discussions with its medical expert witness about the expert’s report. The Court referred to UK authorities that described patent law as an example of a highly technical area where “expert witnesses require a high level of instruction by the lawyers”, [55] supposedly to liken the highly technical area of patent law to the highly technical area of medical malpractice with respect to its reliance on expert evidence (without explicitly saying so). [34] In the result, the Court concluded that the lengthy discussion between appellant’s counsel and the expert witness, which resulted in modifications to the report being made by counsel, was not inappropriate. [78]

A second issue in the case was whether the trial judge erred by using the experts’ reports, which were not entered into evidence, but served as aide memoire, to point out contradictions in expert’s viva voce evidence. [5]

Further issues on appeal include (3) whether the trial judge erred in her application of the doctrine of res gestae, (4) whether she erred in her causation analysis, and (5) whether the trial judge’s errors ultimately caused a miscarriage of justice warranting a new trial. [32]

Factual Background and the Trial Judge’s Decision

The medical malpractice suit was brought by the respondent Moore after Dr. Getahun had treated his fractured wrist with a circumferential cast. [2] Favouring the respondent’s expert evidence, [31] the trial judge found the treatment to have been negligent and to have caused the respondent to suffer the development of compartment syndrome. [3]

Both parties had competing medical experts who put together expert reports that the trial judge wanted the parties to submit into evidence. The parties objected to submitting the reports into evidence, and instead provided the trial judge with copies of the report to serve as an aid to her following the evidence. [18]

It came up in trial that one of the appellant’s experts had prepared his report following an hour and a half conference call with counsel. [27] This was concerning to the trial judge, who ordered the witness to provide the court with all draft reports, instructing letters from counsel, records of discussions, and notes of any changes the expert made as a result of discussions with counsel. [27] The trial judge commented adversely on the effect the discussions had on the expert’s neutrality and credibility, [28, 42-43] and ultimately favoured the evidence of the respondent’s expert over that of the appellant’s. [31] The trial judge went further to say that, in general, the practice of reviewing draft reports should stop, and any changes to an expert’s final report as a result of counsel’s direction should be fully disclosed in writing to ensure that the expert witness is neutral. [44]

1) The Trial Judge’s Disapproval of Lawyer-Expert Discussions was in Error

The Court concluded that the trial judge erred in holding that it was unacceptable for counsel to review and discuss the draft expert reports. [7] The Court found that only minor changes were made to the expert’s report, which appeared to be genuine and unbiased. [50]

While some judges have expressed a concern that discussions with counsel could taint the impartiality of expert evidence, the Court thought that banning undocumented discussion would be contrary to existing authority. [55] The Court also thought that the risk of losing objectivity on the part of the expert is already counteracted by existing law and practices, including (1) the ethical and professional standards of the legal profession, [56-57] (2) the ethical and professional standards of professional bodies to which many experts belong, [60] and (3) the adversarial legal system. [61]

Referring to Medimmune Ltd v Novartis Pharmaceuticals UK Ltd & Anor, [2011] EWHC 1669 (Pat), the Court explained that such undocumented discussion between lawyers and experts is practically necessary in highly technical areas such as patent law, where “expert witnesses ‘require a high level of instruction by the lawyers’ which may necessitate ‘a high degree of consultation’ involving ‘an iterative process through a number of drafts’”. [55]

The Court further stated that discussions between lawyers and experts are protected by litigation privilege. [70] Reasonable exceptions to this privilege are already in place, such as the requirement to disclose the opinion of an expert witness to the other party before trial. [74]

The Court concluded that “[a]bsent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness.” [78]

In this case, the Court thought that the evidence did not meet the threshold of constituting a factual foundation for an allegation of improper influence. The trial judge thus erred by ordering the production of the appellant’s witness’s drafts and notes. She also erred in law by stating that all changes in the reports of expert witnesses should be routinely documented and disclosed. [78]

2) The Trial Judge Erred in using the Expert Reports to Discredit the Expert’s Viva Voce Evidence

The Court held that the trial judge erred in using the written expert reports, which were not entered into evidence and thus not the subject of cross-examination, to discredit aspects of the expert’s viva voce evidence. [85] As a matter of trial fairness, such perceived contradictions should not be used as a factor by the trial judge to hold against the expert’s credibility if the issue was not brought up in cross-examination. [86]

3) The Trial Judge’s Misuse of the Term Res Justae was Harmless

The Court found that the trial judge misused the term res justae, but harmlessly so. She was not using the hearsay exception to admit a witness’s report for the truth of its contents. She was merely using the report to assist her understanding of the evidence. [92]

4) The Trial Judge did not Err in her Causation Analysis

The Court found that the trial judge was alive to the issues of causation raised at trial and on appeal [99] and made no error in fact or law that warranted appellate review. [101]

5) The Trial Judge’s Errors Ultimately Had No Effect on the Outcome

Although the trial judge erred when she ordered the production of the appellant’s expert’s drafts and notes, and further erred when she used the expert reports that were not entered into evidence to discredit aspects of the expert’s viva voce evidence, the Court held that these the trial judge’s preference of the respondent’s evidence over the appellant’s was “in no way linked to the errors she made”. [109] Rather, she favoured the respondent’s evidence because it gave a logical and convincing explanation of the applicable standard of care and the cause of the respondent’s compartment syndrome. [109] Even without her errors, the trial judge would have reached the same result. [117] Thus, the appeal was dismissed. [119]


The Court’s statements about patent law requiring a high degree of consultation between counsel and expert witnesses was technically obiter, and the comments would have been more significant had the Court explicitly compared the need for expert witnesses in patent law to the need for expert witnesses in medical malpractice cases (see para 55 for the comments).

Nevertheless, the comments may gain force if the protection of discussions between lawyers and witnesses in non-technical areas of law are ever curtailed. This case may stand for the principle that especially in areas of law that deal with highly technical fact scenarios, lawyer-expert discussions should attract heightened protection.

As a practical matter, counsel and expert witnesses can see this case illustrates the need for careful control over drafts and their communications, lest those drafts are used to mischaracterize the evidence presented by the expert, or lead to perception that the final expert report is biased or otherwise tainted.  Counsel and expert witnesses are therefore wise to consider protocols and best practices in their work together to minimize this risk.