Exercise caution in consultation on expert witness reports

Can lawyers consult with their own expert witnesses following the creation of a draft expert report? And do they have to hold on to any draft reports created and provided by them to opposing counsel? These remain open questions in the Ontario courts.

Speaking at the Law Society of Upper Canada’s recent Small and Solo Firms Conference, Richard Shekter, a personal injury lawyer with Shekter Dychtenberg LLP, told lawyers to remain cautious until these questions are settled.

He pointed to a recent Superior Court of Ontario case, Moore v. Getahun, that “has absolutely shaken the personal injury bar.”

In her ruling, Justice Janet Wilson said according to Rule 53.03 of the Rules of Civil Procedure, lawyers should not consult their own experts after a draft report has been completed.

“I conclude that counsel’s prior practice of reviewing draft reports should stop,” she wrote. “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.”

However this contradicted another Superior Court ruling from three years ago. In Medlowitz v. Chang, Justice Frank Morrocco came to the opposite conclusion of Wilson.

“I am satisfied that it is appropriate for counsel for the plaintiffs to make suggestions to Mr. B and his staff,” he wrote. “In this way, counsel will come to understand the report, and [the expert] . . . can get the benefit of any information which counsel has that may have been inadvertently excluded from the report.”

According to Shekter, this uncertainty should worry litigators.

“So what have you got, you’ve got two courts, judges of equal jurisdiction coming at it from completely opposite directions,” he said.

“It’s up to you to decide which way to go,” Shekter went on to say, “but the problem is, and I’ve seen this happen and it’s happened to me in court, the judge comes up on the dais, and there is one who happens to agree with Wilson and not Morrocco and then you’re stuck.”

Shekter said until the Court of Appeal decides which ruling to go with, lawyers should act cautiously and try to not consult experts on their draft reports.

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