Canadian Court takes strict position on advocates involvement in amending expert reports

A Canadian Court has taken a strict view on the involvement of advocates in settling and discussing the contents of expert reports used in litigation.

The decision

Moore v. Getahun 2014 ONSC 237 takes a much stricter approach than the Australian Courts with regarding the involvement of solicitors in reviewing or settling expert reports for use in legal proceedings.

Moore v Getahun was a medical negligence/malpractise case where, in the course of evidence, it was discovered that one of the experts, Dr Ronald Taylor, had participated in a one and a half hour telephone call with counsel for the defence in relation to a draft report created by Dr Taylor. Whilst defence counsel was “happy with” the draft report, he made “suggestions” and “corrections over the phone”.  The final report was amended to include the “corrections over the phone.”

During the hearing, the plaintiff took issue with this practice and argued that it was a breach of rule 53.03 of the Ontario Rules of Civil Procedure. As stated in the judgment, the purpose of rule 53.03 is to “ensure the independence and integrity of the expert witness. The expert’s primary duty is to the court… I conclude 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, to ensure transparency in the process and to ensure that the expert witness is neutral.”

The Australian position

Whilst the Australian Courts have not taken as strict an approach as the courts in Canada, there are a number of parallels in the decision and it serves as a timely reminder of how much involvement a solicitor can have in expert reports; especially in light of the primary duty to the Court.

Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW) and the analogue Federal and State expert codes of conduct state that the primary duty of an expert:

• is to assist the court; and
• not to be an advocate for either party involved in the litigation.

Despite this, some involvement by solicitors in the amendment of expert reports is accepted in Australia. One oft cited passage is that of Lindgren J in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893 where his Honour said: 

“Lawyers should be involved in the writing of reports by experts: not, of course, in relation to the substance of the reports (in particular, in arriving at the opinions to be expressed); but in relation to their form, in order to ensure that the legal tests of admissibility are addressed.  In the same vein, it is not the law that admissibility is attracted by nothing more than the writing of a report in accordance with the conventions of an expert’s particular field of scholarship.  So long as the Court, in hearing and determining applications such as the present one, is bound by the rules of evidence, as the Parliament has stipulated in subs 82(1) of the NT Act, the requirements of s 79 (and of s 56 as to relevance) of the Evidence Act are determinative in relation to the admissibility of expert opinion evidence.”

This view was accepted by all three judges of the Supreme Court of the Australian Capital Territory in Re Doogan; Ex parte Lucas-Smith and Others (2005) 193 FLR 239 where their Honours referred to the above passage and said: 

“… the mere fact that some editing of the [expert] reports occurred does not demonstrate any impropriety on the part of the lawyers in question or provide any valid ground for concern… It has not been established that any of the lawyers assisting the first respondent sought to change passages in the reports conveying relevant opinions or information, so the prosecutors’ complaints seem to have been based upon the editing of passages that were, at best, of marginal relevance.”

Finally, solicitors should also be aware of rule 24 of the Australian Solicitors Rules which states that:

24.1        A solicitor must not:

24.1.1    advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or

24.1.2    coach a witness by advising what answers the witness should give to questions which might be asked.

It remains to be seen whether, in time, Australian courts will also begin to take a stricter approach to the involvement of solicitors/advocates in the drafting, amendment of expert reports, or disclosure of any amendments to reports in light of the similar duties of an expert to the Court.

Irrespective, it is clear that in Australia, it would likely be improper for a solicitor/advocate to amend an expert report in order to change the substance of the opinion provided by the expert.