A recent decision of the Court of Appeal for Ontario offers guidance on the relationship between an expert witness and counsel under Canada's Rules of Civil Procedure. The January 29, 2015, decision in Moore v. Getahun, 2015 ONCA 55 (Can.), has confirmed that there is nothing improper in counsel reviewing a draft report with an expert witness and that draft expert reports and related material are protected from production unless there is a reasonable basis to suspect that counsel improperly influenced the expert.
The trial judge in Moore, a medical malpractice case, ordered the defendant's testifying expert physician to produce copies of his draft expert reports and proceeded to question the expert at length about the changes he made to the reports after consulting with the defendant's lawyer. The trial judge went on to hold that "counsel's practice of reviewing draft reports should stop. There 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 . . . ." Moore, 2015 ONCA 55, ¶ 44. The trial decision caused alarm and attracted criticism from counsel and expert witnesses in Canada and abroad.
The Court of Appeal firmly rejected the trial judge's proposed approach to communications between lawyers and expert witnesses, but ultimately dismissed the appeal on the basis that the trial judge's error did not affect the outcome.