Draft Expert Reports in Ottawa Personal Injury Cases
In most personal injury cases, it becomes necessary to retain various experts to assist in proving various aspects of the injured person’s case. In most cases, is it required to retain medical experts. In some cases, it is required to retain non-medical experts such as actuarial evaluators and engineers. In a recent case called Moore v. Getahun et al, 2014 ONSC 237, the defense lawyers defending an action against an orthopedic surgeon spoke to an expert retained on behalf of their client. It is not unusual for experts to provide draft reports to legal counsel, have the legal counsel review the expert report in draft form and make some commentary as to the final draft. In this case, upon review of the medical file, plaintiff’s counsel noted a 90 minute telephone call that took place three days prior to the date of the experts second report. The medical expert confirmed that he had sent his draft report to defense counsel for commentary. As a result of the conversation between the expert and legal counsel for comments, a final report was submitted.
The plaintiff argued that the phone conversation between defense counsel and the expert was improper and inappropriate. Defense counsel argued that experts are entitled to prepare draft reports and to share those drafts with counsel for commentary and discussion. Justice Wilson concluded that counsel’s prior practice of reviewing draft reports should stop. The Court commented that given that the experts primary duty is to assist the court, pursuant to rule 53.03, this practice of reviewing draft reports is no longer acceptable. It is improper and undermines the purpose of rule 53.03 as well as the expert credibility and neutrality as required by that rule. If counsel believes that the final report requires any changes, any input from counsel should be in writing and disclosed to opposing counsel to ensure transparency in the process and to ensure that the expert witness is neutral.
Rule 53.03 states in part as follows:
Experts’ Reports
53.03
(1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference required under Rule 50, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48.
(2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).
(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:
1. The expert’s name, address and area of expertise.
2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.
3. The instructions provided to the expert in relation to the proceeding.
4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
6. The expert’s reasons for his or her opinion, including,
I. a description of the factual assumptions on which the opinion is based,
ii. a description of any research conducted by the expert that led him or her to form the opinion, and
iii. a list of every document, if any, relied on by the expert in forming the opinion.
7. An acknowledgment of expert’s duty (Form 53) signed by the expert.
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