Expert Witnesses, Adultery and Consequences - The Legal Debate

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Codification or

Construction: to what

extent have the “new”

expert rules changed the

landscape?

By Tom Curry

Prepared for

The Law Society of Upper Canada

Expert Evidence for Litigators

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Codification or Construction: to what extent have the “new” expert rules changed the landscape?

By Tom Curry 1

Expert testimony is admissible in Canadian courts as an exception to the evidentiary rules prohibiting opinion evidence. It has long been recognized that “certain exceptional issues require the application of special knowledge lying outside the experience of the usual trier of fact.”1 However, courts have for an equally lengthy measure expressed concerns that an expert “may usurp the role of the trier of fact”, and therefore require trial judges to be “vigilant in

monitoring and enforcing the proper scope of expert evidence.”2

The inherent tension caused by the necessity of yet danger posed by expert opinion evidence has been addressed in Ontario by requiring expert witnesses uphold certain duties and obligations to the court itself, rather than the litigants before it. These duties were first enunciated as common law principles and, more recently, as legislative requirements. Since the amendments to the Rules of

Civil Procedure (the “Rules”) in 2010, a debate simmered in the profession and

the case law as to whether these amendments had merely codified existing expert obligations, or, rather, had constructed new requirements for experts. This debate was re-ignited by the recent decision of Moore v. Getahun, a decision of Madam Justice Janet Wilson who held that the legislative amendments created new duties for experts. She concluded that these amendments made the widespread practice of counsel consulting with their experts no longer proper. This paper reviews certain aspects of the judgment and suggests that, contrary to the ruling of the learned Trial Judge, the legislative amendments were a codification of existing law, rather than an introduction of new duties or obligations on expert witnesses. It also highlights some of the criticisms of the purported ban on counsel consulting with their experts.

II. THE EXPERT EVIDENCE RULES

A. Expert Witnesses’ Common Law Duties

Courts have long required special obligations of expert witnesses. At common law in Ontario, an expert witness owes duties to the court above those owed to any party, including the duty to proffer unbiased testimony:

Whatever role the expert may have undertaken during the course of the litigation in assisting counsel to a fuller appreciation of the facts in dispute and the inferences that might be drawn from them, the expert must set aside that role upon entering the witness box at trial. From the witness box the expert speaks only to assist the court. […]

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The court endeavors to adjudicate each matter coming before it fairly and free from bias. To the extent that the court must receive and rely upon the expert opinions of others and to the extent that those opinions are tainted, the administration of justice is imperiled.3

Canadian jurisprudence frequently cites the English case generally referred to as

Ikarian Reefer for the common law duties and obligations of a testifying expert.

In that case, Justice Cresswell stated that expert evidence should be, inter alia, the independent product of the expert uninfluenced by the litigation; objective, unbiased and related to matters within the expert’s expertise; clear as to the facts and assumptions that underlie the opinion; and transparent with regards to any limitations or qualifications on the opinion presented.4

The duties and obligations enumerated by Justice Cresswell have beencited with approval by courts in Ontario and other Canadian jurisdictions both before and after the enactment of the amendments to the Rules in 2010.5

B. The 2010 Amendments

In 2006, the Honourable Coulter Osborne undertook a review of the civil justice system in Ontario.6 Among the many proposed changes to the Rules contained in his report are a number that address expert opinion evidence. Mr. Osborne’s proposals addressed the perception that expert evidence in civil cases had become too prevalent, too dominant and too partial. He noted the complaint that “too many experts are no more than hired guns who tailor their reports and evidence to suit the client’s needs.”7 Mr. Osborne’s recommendations resulted in amendments to the Rules that came into effect in 2010.

In addition to amendments to Rule 53.03 specifying the requirements of an expert report, Rule 4.1.01 was introduced to address the duty of an expert witness.8 Rule 4.1.01 reads:

(1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan; (b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and

(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.

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(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.9 Mr. Osborne considered that these amendments served as a reminder to experts of the existing requirements of the role and their professional obligations. Further, they would, at a minimum, “cause experts to pause and consider the content of their reports and the extent to which their opinions may have been subjected to subtle or overt pressures.”10

C. Codification of Existing vs. Construction of New Obligations

Whether the amendments to the Rules represent a change in the common law obligations of expert witnesses has been the subject of judicial consideration. The jurisprudence is not unanimous,11 but the weight of authority holds that the duties now expressly imposed by the Rules are not new or different in substance but, rather, codify those common law obligations to which experts were

previously bound.12 As explained by Lederman J.:

The new rule amendments and certification requirement impose no higher duties than already existed at common law on an expert to provide opinion evidence that is fair, objective and non-partisan [citations omitted]. The purpose of the reform was to remind experts of their already existing obligations.13

III. MOORE V. GETAHUN

The debate over the purpose and impact of the amendments relating to expert opinion evidence has become more furious in the aftermath of Justice Wilson’s judgment in Moore v. Getahun.14 Though this decision was appealed on numerous grounds, this paper focuses on the Trial Judge’s rulings on the

propriety of counsel’s interactions with their expert witnesses in light of experts’ “new” role, including consultation and review of draft reports.

A. The Underlying Event

On the afternoon of Saturday November 12, 2005, Blake Moore crashed his motorcycle into a parked SUV while being videotaped stunt-riding. He sustained injuries, including to his right wrist.15 Mr. Moore was taken by ambulance to the Emergency Department at the Scarborough General Hospital, where he was first seen by an Emergency Room physician and then by Dr. Getahun, the

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X-rays confirmed that Mr. Moore’s right wrist had been fractured. Dr. Getahun performed a closed reduction of the injury to place the bones in alignment, and then applied padding and a full circumference plaster cast on Mr. Moore’s wrist and forearm.16 A second set of x-rays confirmed that the reduction was

successful, however a part of the wrist was broken into many pieces. Dr. Getahun recommended to Mr. Moore that he undergo surgery to repair the injury, and offered to perform the surgery that night.17 Mr. Moore declined. He and his father were concerned about Dr. Getahun’s relative experience and wanted to obtain a second opinion.18

Prior to discharging Mr. Moore, Dr. Getahun examined the circulation in the arm to ensure the cast was not too tight and provided him with instructions, including a written pamphlet, which Mr. Moore acknowledged he read.19

Mr. Moore slept through the night, but upon awakening the next morning he noticed an increase in the pain and swelling in his wrist. As a result, Mr. Moore and his father attended at the North York General Hospital Emergency

Department. Another x-ray was ordered while the cast remained in place. Mr. Moore’s cast was split open after the x-ray, and the on call Orthopaedic Surgeon, Dr. Orsini, was called.

Dr. Orsini performed surgery on Mr. Moore that evening and repaired the underlying fracture. Dr. Orsini’s opinion was that Mr. Moore had a compartment syndrome.20 Compartment syndrome results from “the expansion of enclosed tissue within its anatomical enclosure, producing pressure that interferes with circulation and adversely affects the health and function of the tissue itself.”21 Mr. Moore has permanent injuries to his right arm as a result of these events. B. The Trial

The trial of this medical negligence action took eight days, including argument. Two other attendances were required to address issues raised by the Trial Judge concerning certain exhibits after the matter was reserved. There were two issues to be decided at trial: whether Mr. Moore could prove a breach of the standard of care and causation. The standard of care issue turned on the application of a plaster cast to the full circumference of the wrist as opposed to a bi-valved (or split) cast or splint. The causation issue turned on whether the compartment syndrome was caused by the type of cast used or the original injury. The quantum of damages was agreed prior to the start of trial.

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C. The Decision of the Trial Judge

The Trial Judge found that Dr. Getahun had fallen below the standard of care in two ways. First, by applying the full circumferential cast and second, by failing to adequately educate Mr. Moore about the risks and symptoms of compartment syndrome – an issue on which no expert opinion evidence as to the standard of care was led. The Trial Judge concluded that but for the application of the cast by Dr. Getahun, the compartment syndrome would not have developed.22

In the course of her reasons, the Trial Judge made controversial rulings about the state of the law on expert evidence in Ontario including, inter alia, the propriety of counsel’s interaction with their experts. The Trial Judge stated at numerous points in her reasons that the amendments to the Rules, specifically Rule 53.03, had changed the role of expert witnesses in litigation.23 She held:

The purpose of Rule 53.03 of the Rules of Civil Procedure is to ensure the independence and integrity of the expert witness. The expert's primary duty is to the court. In light of this change in the role of the expert witness under the new rule, 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. 24

The Trial Judge further concluded that counsels’ practice of reviewing draft expert reports was “improper and undermines both the purpose of Rule 53.03 as well as the expert’s credibility and neutrality.”25

IV. THE AFTERMATH OF MOORE V. GETAHUN

The Trial Judge’s decision in Moore v. Getahun provoked extensive discussion among diverse segments of the Ontario Bar, as it was widely seen as contrary to practices that were longstanding, widespread and proper. The Trial Judge’s interpretation of the perceived changes to the rules relating to expert witnesses led her to redefine the bounds of propriety and impartiality. Some of the main criticisms of this decision include:

·It failed to appreciate the role that counsel play to properly prepare experts. For example, experts must understand that it is the legal burden of proof, not the scientific threshold of certainty, which is determinative. Counsel must also ensure that the expert’s opinion is properly confined within his or her expertise,

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and does not include inadmissible or otherwise improper information. The report of the Honourable Stephen Goudge specifically recommended that counsel should meet with and prepare their experts prior to giving testimony as a means of improving the reliability of their evidence.26

·It failed to appreciate that any concerns with respect to undue influence on an expert’s opinion are the proper subject of cross examination, and it is through the crucible of the adversarial process that opinions can be tested and any bias revealed. Mr. Osborne considered and rejected the mandatory use of court-appointed or joint experts,27 and Mr. Goudge emphasized the importance of cross examining expert witnesses testifying about disputed or controversial issues.28

·It failed to appreciate the additional costs that would be generated if counsel were not permitted to communicate with experts about their draft reports. Counsel would inevitably be driven to retain additional experts to “shadow” the testifying expert and guide counsel in their work.

·It presumed that participants in the civil justice system will act contrary to their professional duties, rather than upholding them. Like many expert witnesses, the physicians who were qualified as experts in Moore v. Getahun had independent professional duties.29 Advocates similarly have professional obligations distinct from the Rules, including the duty to treat the tribunal with candour, fairness, courtesy and respect.30

The Court of Appeal heard the appeal of Moore v. Getahun in September 2014, alongside an appeal of the Divisional Court’s decision of Westerhof v. Gee Estate.31 In addition to counsel for the parties, over the four days of hearings the Court heard submissions from interveners including The Advocates’ Society, The Holland Access to Justice in Medical Malpractice Group, the Ontario Trial Lawyers Association, the Criminal Lawyers Association and the Canadian Defence Lawyers Association. The tenor in the courtroom was overwhelming contrary to the conclusions of the Trial Judge regarding the “new” duties of experts, and how those duties should be practically adhered to. The Court reserved its judgment but signaled it was persuaded the Trial Judge went too far in her comments on counsel’s role in communicating with expert witnesses.

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V. CONCLUSION

The scope and practical application of the procedural rules pertaining to expert witnesses will certainly be clarified by the Court of Appeal in the coming months. The Ontario Bar, as represented by numerous interveners during the

Moore v. Getahun appeal, urged the Court to endorse an approach that is

consistent with the common law obligations that have since been codified in Rules 4.1.01 and 53.03 – that is, to require expert witnesses to provide fair, objective and non-partisan evidence within their area of expertise, and to provide any such additional assistance as the court may reasonably require to determine a matter in issue. And, importantly, to permit advocates, while acting within ethical and professional bounds, to assist expert witnesses in upholding their duties to the court.

Tom Curry is a Partner at Lenczner Slaght Royce Smith Griffin LLP. He thanks Laura Robinson, Student-at-Law, for her assistance in the preparation of this paper.

1

R. v. D.(D.), 2000 SCC 43 at para. 50.

2

R v. Sekhon, 2014 SCC 15 at para. 46.

3

Frazer v. Haukioja, [2008] O.J. No. 3277 at paras. 138, 140 (S.C.J.).

4

National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd., [1993] F.S.R. 563 (Q.B.D.) at 565-66

[Ikarian Reefer], rev’d on other grounds [1995] 1 Lloyd's Rep. 455 (C.A. Civ.).

5

For example see: Fellowes, McNeil v. Kansa General International Insurance Company Ltd. et al (1998), 40 O.R. (3d) 456 at para. 10 (Gen. Div.); Frazer v. Haukioja, [2008] O.J. No. 3277 at para. 141 (S.C.J.); Baynton v. Rayner, 1995 CarswellOnt 2820 at para. 116 (Gen. Div.); Carleton Condominium Corp. No. 21 v. Minto Construction Ltd.,

[2001] O.J. No. 5124 at para. 24 (S.C.J.); Jacobson v. Sveen, 2000 ABQB 215 at paras. 32-36; Merck & Co. v.

Apotex, 2004 FC 567 at para. 16; R v. Inco Ltd., 2006 CarswellOnt 2820 at para. 41 (S.C.J.); Lundbeck Canada

Inc. v. Canada (Health), 2009 FC 146 at para. 75; Lockridge v. Ontario (Director, Ministry of the Environment),

2012 ONSC 2316 at para. 96; Henderson v. Risi, 2012 ONSC 3459 at para. 19; Bailey v. Barbour, 2013 ONSC 4731 at paras. 17-23.

6

The Honourable Coulter A. Osborne, Q.C., Civil Justice Reform Project: Summary of Findings &

Recommendations (Toronto: Ministry of the Attorney General, 2007) [Osborne Report].

7

Osborne Report at 71.

8

9

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 4.1.01.

10

11

For example see Master D.E. Short’s decisions: Girao v. Cunningham, 2010 ONSC 4607 (Mast.); Bakalenikov v.

Semkiw, 2010 ONSC 4928 (Mast.); and Aherne v. Chang, 2011 ONSC 2067 (Mast.). Importantly, while Master

_____________ NOTES

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Short considered the amendments to be “a major sea change”, he left open the issue of whether counsel should have access to or participate in the preparation of draft expert reports (Aherne v. Chang at paras. 59-61).

12

For example see: Grigoroff v. Wawanesa Mutual Insurance Co., 2011 ONSC 2279; Brandiferri v. Wawanesa

Mutual Insurance Co., 2011 ONSC 3200; Henderson v. Risi, 2012 ONSC 3459; Lee (Litigation Guardian of) v.

Toronto District School Board, 2013 ONSC 3085; Bailey v. Barbour, 2013 ONSC 4731.

13

Henderson v. Risi, 2012 ONSC 3459 at para. 19.

14

Moore v. Getahun, 2014 ONSC 237 [Getahun].

15 Getahun at para. 1. 16 Getahun at para. 2. 17 Getahun at paras. 126-127. 18 Getahun at paras. 128-129. 19 Getahun at para. 147. 20 Getahun at paras. 185, 188, 193. 21 Getahun at para. 9. 22 Getahun at paras. 511-512. 23 Getahun at paras. 50-52, 298-299, 519-520. 24 Getahun at para. 519. 25 Getahun at para. 52. 26

The Honourable Stephen T. Goudge, Inquiry into Pediatric Forensic Pathology in Ontario, vol. 1 (Toronto: Ministry of the Attorney General, 2008) at 46-47 [Goudge Inquiry]

27

28

Goudge Inquiry, vol. 3 at 506-07.

29

College of Physicians and Surgeons of Ontario, “CPSO Policy Statement – Medical Expert: Reports and Testimony” (2012) 4 Dialogue 2. See also, for example: Professional Engineers of Ontario, Guideline: The

Professional Engineer as an Expert Witness (Toronto: Association of Professional Engineers of Ontario, 2011);

Actuarial Standards Board, Standards of Practice (Ottawa: Actuarial Standards Board, 2014).

30

The Law Society of Upper Canada, Rules of Professional Conduct (Toronto: LSUC, 2014) s. 5.1-1.

31

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Codification or Construction: to what extent have the “new” expert rules changed the landscape? By Tom Curry 10

Contact

Tom Curry 416-865-3096 tcurry@litigate.com