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Focus: Bias a hot topic for experts as Getahun debate continues

Brief: Litigation Support
|Written By Michael McKiernan

Bias is once again the hot topic among expert witnesses after an Ontario Superior Court judge banned lawyers from meeting with their experts to review draft reports.

Justice Janet Wilson ignited a firestorm with her January decision in Moore v. Getahun, a ruling currently under appeal. Meanwhile, the Supreme Court of Canada will also tackle the issue of expert independence this fall when it hears arguments in the Nova Scotia case of Abbott and Haliburton Co. v. WBLI Chartered Accountants.

James McAuley, an accountant and senior vice president of KPMG Forensic Inc. in Toronto, says such decisions help emphasize the importance of expert independence in a similar way to the change to Ontario’s Rules of Civil Procedure in 2010. Since then, experts must sign Form 53 that confirms their duty to the court above and beyond the party that retained them.

“That may have forced some people to focus on what’s always been their duty,” he says.

“There was a change in form, but it shouldn’t have been a change in substance. Avoiding bias and independence have always been front and centre in how I approach a mandate.”

Carolyn Seaquist, a principal in the litigation accounting and valuation services group at Collins Barrow Toronto LLP, says it’s “absolutely crucial that we are not perceived as advocates.”

“We are keenly aware, in each and every case, that if our reports are not perceived as being fair, objective, and independent, not only will our expert evidence not be accepted by the court, but our professional reputation will be damaged,” she says.

In Getahun, a medical malpractice case, a defence expert faced questions about alterations made to his report following a 90-minute phone call with counsel. While he claimed the changes were minor, the judge concluded the meeting involved “more than simply superficial, cosmetic changes” and condemned the practice of counsel and experts meeting to “review and shape” reports and opinions.

“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,” Wilson wrote in the Jan. 14 judgment.

Norm Emblem, a partner at Dentons Canada LLP in Toronto, says he’s confident the Ontario Court of Appeal will overturn the decision because its sweeping nature makes it unworkable in practice. He says most experts, particularly those inexperienced in court proceedings, need help ensuring their reports are helpful to the judge.

“There are some experts who, unguided, wouldn’t have a clue how to properly frame a report that will ultimately assist the court,” he says. “The manner in which a report is structured in certain cases requires assistance of counsel. That is not changing the opinion.”

Darcy Merkur, a personal injury lawyer with Toronto’s Thomson Rogers, says the decision has chilled the medical-legal community and forced him to deal only with experts he has previously used.

“I don’t want to be put in a position where I have to educate them,” he says. “It’s not a good decision for access to justice because it muzzles lawyers and ramps up the costs of litigation by forcing reliance on seasoned veteran expert witnesses.”

Although the decision involved medical experts, Seaquist says it applies equally to accounting specialists like her and is already affecting relationships with counsel. Experts issue draft reports only on demand while defence lawyers are increasingly forgoing that option.

“Once a draft report is issued, we are very cautious about the nature of changes that are made,” says Seaquist. “For example, new information of which we were previously unaware may affect our opinion and therefore changes are appropriate. Alternatively, we will correct a typo or other error that was noticed by counsel.”

On the rare occasions where a lawyer may attempt to influence her opinion, Seaquist says she’s not shy about standing her ground.

“If we disagree with counsel, we simply state so and explain the reasons. In most cases, counsel is very understanding once the reasons are fully explained. In rare cases, we have lost clients because we were unwilling to manipulate the numbers to satisfy a lawyer.”

Seaquist offers these tips for accountants and other experts who don’t want to be the recipient of judicial ire:

•    Never disregard relevant information just because it doesn’t suit your client. “For example, if a plaintiff acknowledges to the accountant that they planned to retire by age 60, the accountant cannot simply disregard this information and assume a retirement age of 65,” she says.

•    Stick to your turf: Avoid straying from your area of expertise and, if you must, ensure the report clearly says so. “As professional accountants, we are unable to provide an opinion as to an injured plaintiff’s ability to work or earn. Thus, we must clearly state that any scenarios provided as to his or her ability to work and earn are based on what appear to be reasonable assumptions rather than our opinion,” says Seaquist.

•    Always acknowledge assumptions: In cases of insufficient information or data, experts have to make assumptions and should note them. Seaquist says this can come up in loss-quantification cases when financial statements are incomplete or inaccurate for tax reasons. “Clearly state this deficiency in information and any assumptions that had to be made as a result,” she says.

•    Play for both teams: “We ensure that we accept both plaintiff and defence assignments,” says Seaquist. “It really just depends on who calls us first. This policy is deliberate, so that we are perceived as unbiased by the trier of fact, but also because working for both plaintiffs and defendants reduces the likelihood that the expert will develop his or her own biases, possibly even unknowingly.”   

For more, see "Lawyers to resist Getahun pending appeal."

  • Frank Shostack
    A blanket prohibition against counsel being able to review draft expert reports is ridiculous. Except in the most unusual circumstances, no initial report is ever perfectly clear, addresses every issue, question or nuance, and has no need for improved clarity. Justice Wilson's decision appears to be founded on a view that counsel, if permitted will attempt to corrupt the expert's independence, and that experts are corruptible. That is insulting to both counsel and the expert community, even though there may be some merit to that kind of concern in selected instances. Let's get realistic and give professionals the respect they deserve, and let the cross-examination process ferret out where conduct has been inappropriate.
  • Griswald G
    First we toss out the treating physicians because of a perception of bias and bring in the 'expert' witness. Now those witnesses turn out to be 'experts' in either inflating or deflating a claim and can't be trusted? The partisanship that the family doctors and specialists were accused of pales in comparison to the trouble these medico-legal 'experts' have brought to the accident victim and the courts. Maybe it's time to turn the clock back and rely on the family physician and our OHIP paid experts and put back some integrity back into a system that is now seen as corrupt and that no longer serves us but rather serves all those who make money off the accident victim.

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