Moore v. Getahun, 2015 ONCA 55

Written on January 30, 2015.

The Court of Appeal for Ontario released its reasons for decision yesterday in a much anticipated appeal ruling centering upon the rules respecting experts, and the consultations between counsel and their experts, in medical malpractice actions and other actions in Ontario.

The full decision can be read here: http://www.ontariocourts.ca/decisions/2015/2015ONCA0055.htm  

The key findings by the Court of Appeal included:

 

” Making preparatory discussions and drafts subject to automatic disclosure would, in my view, be contrary to existing doctrine and  would inhibit careful preparation. Such a rule would discourage the participants from reducing preliminary or tentative views to writing, a necessary step in the development of a sound and thorough opinion. Compelling production of all drafts, good and bad, would discourage parties from engaging experts to provide careful and dispassionate opinions and would instead encourage  partisan and unbalanced reports. Allowing an open-ended inquiry into the differences between a final report and an earlier draft would unduly interfere with the orderly preparation of a party’s case and would run the risk of needlessly prolonging proceedings.”

 

“It is common ground on this appeal that it is wrong for counsel to interfere with an expert’s duties of independence and objectivity. Where the party seeking production of draft reports or notes of discussions between counsel and an expert can show reasonable grounds to suspect that counsel communicated with an expert witness in a manner likely to interfere with the expert witness’s duties of independence and objectivity, the court can order disclosure of such discussions….Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a party should not be allowed to  demand production of draft reports or notes of interactions between counsel and an expert witness.”