UPDATE, June 4, 2014: I learned yesterday, at a meeting of the Civil Rules Committee, that the appeal of this decision is to be heard by the Court of Appeal during the week of September 22, 2014. I understand that the appeal of Westerhof v. Gee will also be heard that week.

In Moore v. Getahun, a medical malpractice action, Madam Justice Janet Wilson commented extensively on a number of aspects of expert testimony.

Draft reports and “corrections” by counsel

It emerged at trial that one of the defence experts had submitted a draft of his report to the law firm representing the defendant physician “for comments”. A ninety minute telephone conversation ensued between counsel and the expert, during which the lawyer suggested changes to the draft report. The expert implemented the “corrections” in the final version of the report, which was served on counsel for the plaintiff.

Justice Wilson took a rather dim view of this practice (which, in my experience, is very widespread). She said:

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.

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 added, later in her reasons, that “[t]here should be full disclosure in writing of any changes to an expert’s final report as a result of counsel’s corrections, suggestions, or clarifications, to ensure transparency in the process and to ensure that the expert witness is neutral.”

In my own experience (yes, I have engaged in the now-forbidden practice of reviewing draft reports of experts and suggesting changes), there can be several reasons for revising the report. The most common one (for me, at least) has been that the expert expresses opinions that go beyond the bounds of the expertise for which he or she is likely to be qualified at trial.

Another common problem that I have seen is that the expert makes factual assumptions that either are not in the evidence or whose source is unclear.

I have had the occasional experience of receiving a draft report that contained so many grammatical and spelling mistakes that I feared that the expert’s authority would be compromised if the court were to see his (it was always a “he” where this happened) report in its original form. In those cases, I edited the reports solely for form.

Obviously though, the involvement of a lawyer can result in more substantive changes being made to the report. An expert could be asked to remove a comment that is critical of the lawyer’s client, if the comment was considered to be extraneous to the expert’s opinion. Or a criticism could be re-worded in a gentler form. (I am not saying that I ever engaged in either of these practices.)

If Justice Wilson’s comments represent the practice going forward, there will probably be far fewer draft reports floating around. As it is, it is very common for counsel to discuss the expert’s opinion with him or her before deciding whether or not to obtain a report at all. And that practice will likely continue. Unless an expert’s written report contains an obvious error though, there will probably be far fewer “corrections” to written reports made by counsel in future.

Expert’s report as evidence

An issue that very commonly arises at a trial that involves the testimony of expert witness is: what use can the court make of the expert’s written report?

The usual practice (again, in my experience) is that the trial judge is given a copy of the report to refer to but that the report itself is not marked as an exhibit. The evidence of the expert is made up entirely of what he or she says in oral testimony.

That issue arose in the Moore case. Defence counsel objected to the experts’ reports forming part of the evidence and again, Justice Wilson was unhappy with this position. She felt that it would be preferable, in future, for the reports to form part of the expert’s evidence. However, she left the matter to be dealt with by an appellate court or by the Rules Committee:

Defence counsel also objected to the experts’ written reports being admitted for their truth as exhibits in evidence. Copies of the reports were filed as lettered exhibits and available to me as an “aide” to assist in following the evidence, but not admitted into evidence as exhibits. The oral evidence was not necessarily as clear or complete as the written reports, making my task to fairly summarize the expert evidence challenging. Does the common law rule, that an expert has the option of filing his report or testifying at the trial, continue after the amendments to the Rules of Civil Procedure? Should experts be allowed to prepare affidavits affirming their reports so the report can be admitted as evidence to both streamline trial process and assist the trier of fact in understanding and assessing the evidence? Are there different considerations in judge alone trials and jury trials? If there are differences or omissions between the expert report and the expert evidence, how are the differences or omissions to be treated?

I conclude that the defence approach dilutes the intended effect of Rule 53.03 to ensure that expert opinions are clearly and neutrally presented to the trier of fact. This issue is properly a matter for the Civil Rules Committee, or a higher court.

Can expert’s testimony go beyond written report?

Another issue arising out of the expert evidence was whether an expert witness was constrained by his or her report in what testimony could be given. In other words, could the expert go beyond the scope of the written report in his or her viva voce testimony?

The issue came up in a somewhat unusual way though. Her Honour had suggested to counsel that after the plaintiff’s fact witnesses had testified, they be given either an agreed statement of facts or a statement of facts from each counsel, summarizing the evidence as it had emerged at trial, “to ascertain whether the facts disclosed in the evidence in any way changed the expert’s previous opinions on standard of care and causation as expressed in the reports”.

Counsel for the defendant objected to this approach, arguing that the defendant was entitled to know the case he had to meet before testifying. He raised the prospect of an adjournment of the trial and possibly additional experts’ reports, if Her Honour’s suggestion had been implemented. Rather than face an adjournment, counsel for the plaintiff acquiesced. However, Justice Wilson was again critical of the defence position, saying that she favoured a “liberal” and a “robust and practical approach” to the expert’s evidence. Unless a completely new and unrelated issue were raised by the evidence, the fact that the expert’s report did not specifically cover some aspect of the viva voce testimony should not, in her view, preclude that evidence from being admitted:

Inevitably, a report is a summary, and cannot be a complete rendition of all of the evidence. In this case, plaintiff’s counsel capitulated to the defence arguments to avoid a possible adjournment. As a result, Dr. Richards’ testimony was strictly limited, at least in chief, to the four corners of his report.

Interestingly enough, defence counsel did not follow the same rules when it came to questioning their own experts. Notwithstanding their position limiting the scope of Dr. Richards’ evidence, I allowed defence counsel to explore facts and issues not directly contained in the defence expert reports that were latent in their reports, with a possible right of reply evidence by Dr. Richards.

In my view, the meaning of “substance of the report,” “latent in a report,” or “touched upon” must be interpreted in a robust, practical fashion to ensure the trier of fact has the full benefit of the expert’s opinion, without raising completely unrelated, new issues that would take the opposing party by surprise. Certainly the facts as they evolve in a trial both agreed to or in dispute should be presented to the expert witnesses, whether or not they were specifically referred to by the expert in his or her report. If the factual underpinnings of the expert opinion are not born out in the evidence, the validity of the expert opinion is weakened or nullified.

Testimony from ER doctor: Westerhof v. Gee

Justice Wilson had to deal with the application of the Divisional Court’s decision in Westerhof v. Gee (see my post here). Defence counsel sought to exclude all of the evidence of the physician who saw and treated the plaintiff in the emergency room, on the basis that no report under Rule 53.03 had been filed in relation to that doctor.

Her Honour rejected that submission but limited the scope of the evidence that could be adduced from the ER doctor:

As Dr. Tanzer did not serve a report pursuant to Rule 53.03 of the Rules of Civil Procedure, I conclude that he cannot provide opinions on the ultimate issue of causation or standard of care. Therefore, Dr. Tanzer’s opinion evidence that the development of compartment syndrome was caused by the tight cast is not admissible.

However, the doctor was permitted to testify as to “his observations, diagnosis at the time, the reasons for his diagnosis, and the steps that he took as a consequence of his observations and diagnosis”.

As noted in my post about the Westerhof case, the Divisional Court’s decision is evidently being appealed so this area of the law is in something of a state of flux.