Counsel Should Not Review Draft Expert Reports

A recent trial decision held that counsel should not review draft expert reports.  In Moore v. Getahun, 2014 ONSC 237 (S.C.J.), the plaintiff brought an action against an emergency room physician for negligently applying a cast after he fractured his wrist.

At trial, there were a number of evidentiary issues with respect to expert evidence, including whether it is appropriate for counsel to review draft expert reports and provide input?

Justice Wilson held that it was not proper for counsel to review an expert’s draft report.  If there are changes to a report, there should be disclosure to the other party:

[520]      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.

Counsel should review the Moore decision as it potentially has repercussions for the way that counsel interact with experts in the future.  One has to wonder whether the Rule Committee intended r. 53 to be interpreted so broadly.