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Personal Injury Law: The downside of judge’s ruling on reviewing draft expert reports

Personal Injury Law
|Written By Darcy Merkur

While a judge had commendable goals in declaring an end to lawyers’ practice of reviewing draft expert reports, her recent Superior Court decision may have the unwelcome consequence of affecting who counsel retain as experts.

According to Justice Janet Wilson’s conclusions in Moore v. Getahun on Jan. 14, counsel’s practice of reviewing draft expert reports must stop and meetings with experts to go over the reports are no longer acceptable.

In Moore, the plaintiff had developed compartment syndrome and claimed it was as a result of negligent medical treatment he received on his fractured wrist following a motorcycle accident.

Like many experts, the defence medical expert had prepared a draft report and had sent it to his counsel for comments.

In reviewing the expert’s file at trial, plaintiff’s counsel found the draft reports as well as the notes in relation to a 1-1/2 hour telephone conference with defence counsel.

While the defence expert suggested the amendments to the report were slight changes such as headings and punctuation, Wilson concluded the meeting between the expert and his counsel addressed more than simply superficial cosmetic changes. In fact, Wilson noted there were deletions or modifications to some content that was helpful to the plaintiff. Wilson found that while the expert’s opinion didn’t change as a result of the discussions, defence counsel’s suggestions certainly helped to shape it.

Wilson took great issue with the common approach by counsel towards reviewing draft reports. She stated: “For reasons that I will fully outline, the purpose of Rule 53.03 is to ensure expert witness’ independence and integrity. The expert’s primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude that counsel’s prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.”

With respect to the issue of how counsel may be able to appropriately give feedback to an expert on a report, Wilson suggests it must be in writing with disclosure to the opposing party. “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,” she wrote.

Wilson expressed her view that Rule 53.03 precludes meetings between counsel and an expert in relation to a draft report since they lead to a perception of bias or actual bias and put lawyers in conflict as a potential witness. “The practice formerly may have been for counsel to meet with experts to review and shape expert reports and opinions. However, I conclude that the changes in Rule 53.03 preclude such a meeting to avoid perceptions of bias or actual bias.

Such a practice puts counsel in a position of conflict as a potential witness, and undermines the independence of the expert.”

To comply with Wilson’s comments, counsel will now have to receive the expert’s final report without having reviewed a draft and then, if necessary, request any clarification in writing while disclosing any such letter to opposing counsel as an attachment to any addendum report.

With the inability to review draft reports, counsel will only engage experts they know to be extremely familiar with expert report writing and the complexities that come along with it. Those complexities include an understanding of the various causation and legal tests.

While Wilson’s reasoning on this issue appears to have the commendable goal of ensuring experts can freely voice their unbiased opinions without interference or pressure from the retaining lawyer, her comments may have the unwelcome consequence of forcing counsel to rely only on experienced professional experts they know will use the correct lingo. As a result, it would perhaps be better to address the hazards of reviewing draft reports through effective cross-examination.

Darcy Merkur is a partner at Thomson Rogers practising plaintiff’s personal injury litigation, including plaintiff’s motor vehicle litigation. Darcy is a certified specialist in civil litigation and creator of the personal injury damages calculator.

  • Brian
    this statement from FSCO tells injured claimants all they need to know about this broken system:

    "..Regulation 7/00 states that it is an unfair or deceptive act or practice to require a claimant to be examined by a person who is unqualified to conduct the examination. However, there are no standards or qualifications for assessors in the auto insurance system. Some stakeholders suggested that FSCO develop guidelines that cover best practices for insurer examinations, standardized reports and assessor qualifications. FSCO is of the view that some stakeholders would like to see FSCO regulate the provision of third party medical examinations. FSCO believes that this is neither an appropriate role for a regulator of financial services nor is it an area that requires the involvement of another regulator since all assessors are already regulated by one of the health regulatory colleges. What is needed is a process to develop some industry-wide standards.
  • Rhona
    Accident victims would welcome the enforcement of rule 53.03 as described in this decision as a first step toward putting some integrity back into the medico-legal assessment industry. Insurers are spending big bucks to prep a witness, far more than plaintiff counsel - see Blake v. Dominion of Canada General Insurance Co., 2013 ONSC 7445 (CanLII) where the insurer spent $22,000 to prep an expert witness. Honest, qualified reports should be the norm, not the exception and the dishonesty in the system has to be purged. There needs to be standards in respect to these medico-legal reports - that's where the system fails the accident victim and the dishonesty of inflating and deflating a claim begins. We should work towards developing a system of qualified medical assessors whose work product is unbiased and standardized so that lingo and form of these report requirements can be met.
  • Brian
    Yes, while there may be a "downside' (as described) to this decision - there is a much greater downside in waiting for "effective cross-examination" of experts. Put simply - far too many plaintiff lawyers far too often fail to effectively cross-examine defense medico-legal experts. It is so bad that even when one popular defense expert conceded under "aggressive cross-examination", to a lack of training and competence - plaintiff lawyers in subsequent cases failed to question this "expert's" competence. Put simply - they allowed their clients to be skewered by an unchallenged, self-confessed unqualified "expert". Given too many plaintiff personal injury lawyers are unwilling/unable to cross-examine opposing experts regarding competence/qualifications - why would anyone believe they would step up to cross-examine effectively on the drafting issue. "Downsides" aside - this was the correct decision and is (at worst ) the lesser of two evils.

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