A Canadian trial judge’s ruling on expert draft reports is sending shockwaves through the legal and expert witness communities. Even though this opinion carries no weight in U.S. courts, it merits attention from practitioners in this country.

Obligation to court: In a medical malpractice case, the Ontario Superior Court of Justice wrestled with a number of evidentiary issues related to the admissibility of expert evidence under Rule 53.03 of the Ontario Rules of Civil Procedure. The most controversial was whether it was appropriate under the rule for counsel to review draft reports of experts and provide input to shape expert reports.

Here, the defendants retained an expert who filed a first report in 2009 and a second report in September 2013. During discovery, the plaintiff found notes indicating a 90-minute telephone call between defense counsel and the expert. At trial, the expert admitted that, during the call, the attorney made “suggestions … of what to put in” the report. The expert made “the corrections over the phone.” A day after his first testimony, the expert offered a different version of the events. The changes were “slight differences, such as headings and punctuation.” He then said “the insertions were all his idea” and were not suggestions the lawyers had made. As the court noted, he “became noticeably flustered during this aspect of the evidence.” The court discredited the testimony. The expert’s “change in tone confirms that he viewed his obligations as being to the defence, and not the court,” it said. It further explained that a 2010 amendment to the civil procedure rules specifically sought to address the “hired gun approach” and ensure the expert witness’s independence and integrity. According to the court:

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.

It allowed that “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.”

The Canadian Bar Association (CBA) has criticized the opinion, noting it fails to recognize the legitimate reasons for an attorney’s reviewing and addressing concerns in expert reports. Experts may make factual errors in their drafts; they may have commented on issues outside their area of expertise; or they may have included comments that convey an unintended meaning. If an expert made an inappropriate or incorrect statement in his or her draft, even if the overall opinion was helpful, the attorney would face a tough choice of whether to point out the problem in writing that is discoverable or whether to start again with a new expert, a CBA statement pointed out.

Ian R. Campbell (50hurdles.com), a Toronto-based valuation consultant, says the case is currently on appeal. Richard M. Wise (MNP LLC) notes that The Advocates' Society of Ontario and The Canadian Institute of Chartered Business Valuators “have filed respective notices to intervene, with the Court of Appeal for Ontario.” The participation of valuators shows that, even though the case involved a medical expert, the judge’s ruling is seen to affect all areas of expertise.

U.S. principles: Meanwhile, the basic principles for U.S. valuators still apply. The expert is not the attorney's client. Therefore, assume there is no attorney-client privilege to protect the exchange of information. Assume that any oral or written report you make to or for the retaining attorney may be discoverable and may be used against you.

It became clear during the recent NACVA conference in Las Vegas that, even though the best way to avoid exposure is not to send draft reports to the attorney, some experts do it because attorneys want to see them, often for legitimate reasons: to ensure the report makes sense and supports the attorney’s narrative. Other experts believe it is too risky for the reasons given above. The Canadian decision is yet another reason to consider whether it is advisable to send "draft" reports to counsel for comments, corrections, or quality control.

Find the Ontario court’s opinion in Moore v. Getahun, 2014 ONSC 237 (Jan. 14, 2014), here.