Expert Witnesses. looking back thinking forward. The Honourable Madam Justice Jane A. Milanetti. Ontario Superior Court of Justice.

Transcription

1 Expert Witnesses looking back thinking forward The Honourable Madam Justice Jane A. Milanetti Ontario Superior Court of Justice April 2011 (With sincere thanks to Christine A. Jackson, Judicial Law Clerk to the Superior Court of Justice, for her assistance)

2 I. INTRODUCTION Dating back to medieval times, courts have sought the assistance of persons with specialized knowledge when adjudicating disputes between parties. At that time, expert testimony was initiated and controlled by the court through either a special jury or court advisor. 1 The special jury was selected by the court on the basis they possessed the specialized training and knowledge to particularly fit them to decide the facts in issue. 2 Similarly, the court advisor was a person with special skills in an art, science, or trade and was selected by the court to assist with the determination of questions of fact. 3 It was not until the late eighteenth century, and the move towards a more adversarial system of law, that we see a shift from court appointed special juries and advisors to the present role of party-selected expert witnesses. 4 By the nineteenth century, experts were no longer seen as impartial court officers and took on a representative role for the party who hired them. Today, expert evidence serves an important, albeit costly and time consuming, function in civil litigation and is governed by the Rules of Civil Procedure. 5 The increased use of and reliance upon experts in civil litigation trials has generated concern over the proliferation, partiality, cost, and delay associated with their use. 6 In June of 2006, the Civil Justice Reform Project, led by the Honourable Coulter Osborne, undertook to review potential areas of reform and make recommendations aimed at making the civil justice system more accessible and affordable for Ontarians. 7 At the time, there was general agreement that the increased use of experts raised the costs of litigation and contributed to delay. Consequently, on January 1, 2010, significant amendments were made to the rules which included changes to expert witness evidence. Briefly stated, the rules respecting expert witnesses were amended to: codify the duty of an expert, standardize mandatory requirements for expert reports; and call for timelier service of reports. This paper examines the new rules affecting expert witnesses and the rationale behind the amendments. Following an examination of the new rules, I will provide the reader with practical implications arising out of the amendments, and will conclude with practice tips for lawyers when proffering expert witnesses. II. DUTY OF EXPERT The new rule deals with the duty of the expert to assist the court. This new rule requires an expert to provide opinion evidence that is fair, objective, and non-partisan. Experts may only give opinion evidence on matters within their area of expertise, and they are required 1 Glenn R. Anderson, Expert Evidence 2d ed (Markham: Lexis Nexis Canada Inc, 2009) at 1. 2 Ibid. 3 Ibid. at 2. 4 Ibid. at RRO 1990, Reg 194 [rules]. 6 Osborne J., Summary of Findings and Recommendations of the Civil Justice Reform Project. Online: < [Report]. 7 Ibid. 2

3 to provide assistance to the court to determine matters in issue. The duty of the expert prevails over any obligation owed to the party by whom the expert is engaged. 8 This duty was succinctly stated by Justice Campbell in Docherty v Lauzon, 2010 ONSC 1006 at para 102: It is the role of the trier of fact to weigh the relevant evidence and to make findings of fact. Experts can often be of assistance to a court in the discharge of this function. However, to be helpful, experts must be scrupulously fair and impartial and base their opinions to the extent possible on objectively reliable data. The recent amendments to the Courts of Justice Act, R.S.O. 1990, c. C. 43 reinforce that notion. Experts come to court to assist the trier in the pursuit of the truth. They are not advocates. 9 The expert, therefore, has an overriding duty to the court and as such, must act as an impartial officer and avoid advocating for either party. To ensure that experts are aware of their duty to be fair, objective, and non-partisan, an Acknowledgement of Expert s Duty (Form 53) must now be signed and appended to the expert s report. This new duty was imposed in response to concerns raised by Osborne regarding the proliferation of experts and expert bias. The duty is aimed at overcoming what had become a battle of experts and the hired gun or opinion for sale approach to expert evidence. 10 At the risk of painting all experts with the same brush, the opinion for sale approach likely resulted from a misunderstanding among experts as to their role in the litigation process. And while it is not always the case, this lack of understanding led to experts preparing reports that met the needs of the party that hired them as opposed to the needs of the court. 11 The hope for rule , then, is twofold: first, it will educate experts about their role in the litigation process and their prevailing duty of objectivity; and second, it will cause experts to pause and consider the content of their report and the extent to which their opinions may have been subjected to subtle or overt pressures. 12 While rule is a new addition to our rules, the duty of an expert to assist the court is far from a foreign concept. As discussed above, in medieval times expert witnesses were selected and controlled by the court which ensured their impartial assistance. More recently, but prior to the amendments to the rules, in Frazer v Haukioja, [2008] OJ No 3277 (Sup Ct), Justice Moore explained the obligation of the expert as follows: 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 8 Rules, supra note 5 at r Docherty v Lauzon, 2010 ONSC 1006 at para 102 [Docherty]. 10 Osborne J., supra note 6 at Ibid. 12 Ibid. at 76. 3

4 upon entering the witness box at trial. From the witness box the expert speaks only to assist the court. At trial the expert must be and appear to be independent of the party or counsel who retained the services of the expert and must demonstrate objectivity and impartiality in the analyses and opinions that she or he is allowed to give. Because the opinions stated by an expert are predicated upon expertise that the court does not possess, the court must be confident in relying upon the expert to provide a thorough, balanced and technically sound analysis. Independence and impartiality; the court expects nothing more and it will accept nothing less. 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. 13 With the enactment of rule , this existing legal obligation of experts is now codified. The question, then, is what impact, if any, this codification will have on civil litigation. The answer to this question depends on the manner in which violations of the duty will be enforced. At present, no formal enforcement mechanism exists and the court has not gone beyond reminding counsel that the new duty under rule requires experts to be fair, objective, and nonpartisan. 14 Experts and counsel, however, can expect to have opinions disregarded by the court for bias and advocacy. And, according to Master Short, [n]ow counsel... may seek to enhance the evidence of experts by pointing out that the expert is the court s expert, without any risk of bias as his or her primary duty is now to the court. 15 III. CONTENT OF EXPERT REPORTS The new rule 53.03(2.1) effectively sets out a mandatory checklist for what must be included in an expert report. Prior to the amendments, in addition to providing the substance of his or her proposed testimony, expert reports were only to include: the author s name, address, and qualifications. Under the new regime, expert reports must now include: 1. The expert s name, address, and area of expertise. 2. The expert s qualifications, 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. 13 Frazer v Haukioja, [2008] OJ No 3277 (Sup Ct) at paras [Frazer]. 14 See: McCullough v Riffert, 2010 ONSC 3891, Girao v Cunningham, 2010 ONSC 4607, and Bakalenikov v Semkiw, 2010 ONSC Bakalenikov v Semkiw, 2010 ONSC 4928 at para 66. 4

5 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: a. A description of the factual assumptions on which the opinion is based; b. A description of any research conducted by the expert that led him or her to form the opinion; and c. 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. 16 The rule further provides that an expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in a rule compliant report or a supplementary report. 17 Rule was arguably amended to reflect concerns raised by Osborne with respect to expert bias and the cost and delay associated with, what he terms, the expert merry-go-round. 18 By codifying what must be included in the expert report, and requiring disclosure of the basis for the opinion, the new rule will expose the expert s impartiality, or lack thereof, therefore strengthening, or weakening, his or her credibility. The requirement that the expert outline in their report the range of opinion and where his or her opinion falls within that range will help close the gap between artificial and actual opinions. By and large, at a minimum, new rule reinforces the requirement that experts provide fair, objective, and non-partisan opinions. While there are numerous practical implications resulting from the new rule 53.03, three are of significant note: first, the express requirement for the expert to disclose in their report the instructions provided to them in relation to the proceeding; second, the express requirement for the expert to disclose the reasons behind his or her opinion; and third, the language in Form 53 that requires an expert to be engaged by or on behalf of [a given party] to provide evidence in relation to the... court proceeding. 19 With respect to disclosure, some lawyers have argued that this is not a new development and that instructions provided to an expert by counsel have always been subject to disclosure. For example, 20 in Browne (Litigation Guardian of) v Lavery (2002), 58 OR (3d) 49 (Sup Ct) the court provided that the system of civil litigation would function more fairly and effectively if parties were required to produce all communication which take place between counsel and an expert before the completion of a report of an expert whose opinion is going to be used at trial. 21 However, Browne should be read in light of the decision in Bookman v Loeb, [2009] OJ 16 Rules, supra note 5 at r 53.03(2.1). 17 Ibid. at r 53.03(3). 18 Osborne J., supra note 6 at Rules, supra note 5 at Form For a fuller discussion of this example see: Jane A. Langford, Disclosure: The route to objective, non-partisan expert reports? in LSUC, Expert evidence explained: a program for all civil litigators (Toronto, 2010) Browne (Litigation Guardian of) v Lavery (2002), 58 OR (3d) 49 (Sup Ct) at para 66 [Browne]. 5

6 No 2741 (Sup Ct) where the court declined to order disclosure of the lawyer s notes of discussions with the expert on the basis of litigation privilege. 22 In any event, the legislature has made a clear pronouncement that this information must now be disclosed in the expert report. This change will undoubtedly have an impact on the way counsel instruct his or her expert. The effect largely has to do with the expert s partiality and credibility. Counsel should keep in mind the effect of instructing experts to exclude unfavourable facts or documents or from usurping the expert s independence by providing too detailed instructions. 23 Instructions that give the appearance of expert bias or impartiality will likely affect the quality and persuasiveness of the opinion, and may even result in the evidence being excluded. The implication of the new requirement to disclose the reasons behind an expert opinion was addressed by Master Roger in Ikea Properties Ltd v Canada Inc, 2010 ONSC This was a motion by the plaintiff for, inter alia, production of foundational material to expert reports at the summary judgment stage of proceedings. In ordering disclosure of all of the documents relied on by the experts in forming the opinions contained in the reports, Master Roger opined: Fairness to the parties, the purposes of our Rules (as indicated above) and recent amendments to Rule 20 (which now provides for the possibility of mini-trials and, when appropriate, for the possibility of the judge weighing the evidence, evaluating the credibility and drawing reasonable inferences from the evidence) should, at the motion for summary judgment stage, when the expert's report was served and the expert is being cross-examined for purposes of that motion, allow some testing of this acknowledgement made by the expert, by requiring disclosure of at least what the expert is required to outlined [sic] at Rule 53.03(2.1)6. The parties are required to put their best foot forward at such a motion. Rule 53 provides useful guidance of what is not within the "zone of privacy", required to protect our adversarial system, by stating that the expert is required to list documents relied on by the expert. Providing to the other side the documents listed by the expert as "relied on" [in] advance of a scheduled motion for summary judgment is a step towards the objectives listed at the start of this paragraph and might help avoid unnecessary adjournments of the motion should these be requested to be disclosed in the context of a mini-trial. 24 Master Roger went on to provide guidance on what constitutes information relied on. At paragraph 19 he stated: To assist the parties, information is relied on by an expert whether it is relied on to support or to contradict a position or opinion and whether or not such 22 Bookman v Loeb, [2009] OJ No 2741 (Sup Ct) at paras [Bookman]. 23 Langford, supra note 20 at Ikea Properties Ltd v Canada Inc, 2010 ONSC 4164 at para 17 [Ikea Properties]. 6

7 information relied on by the expert is helpful or not to the party who retained the expert. Similarly, if the expert gives a range of opinion, what is relied upon by the expert to provide an opinion within that range must be produced. The above order does not require disclosure of any existing draft of these reports nor of documents, or letter, received or sent that were not relied on by the expert in forming the opinion. It requires disclosure of the documents listed or those that should, have been listed by the expert, as required, under Rule 53.03(2.1), including instructions and, also, documents relied on. 25 This decision demonstrates the court taking a generous approach to the application of the new disclosure requirements. It is evident that the court supports Osborne s goals of promoting just, expeditious, and cost conscious results. The third notable implication was discussed by Justice Moore in the case of Beasley and Scott v Barrand, 2010 ONSC 2095 where the court held that the reports of three doctors, tendered on behalf of the defence, were not compliant with rule and therefore inadmissible. 26 Specifically, the court found that the experts failed to properly execute the Form 53 Acknowledgment as the reports in question were authored for the purpose of assisting an insurance company to process an accident benefits claim rather than for the court. 27 The reasons of Moore J. in Beasley were followed by Justice Stinson in Anand v State Farm, 2010 ONSC 2619 where the expert medical opinion of the accident benefit examiners was rejected. These decisions, however, should be read in light of Justice Turnbull s ruling in Slaght v Phillips and Wicaartz (18 May 2010), Simcoe 109/07 (Ont Sup Ct) where he allowed the evidence of a vocational consultant hired by the accident benefit insurer. In allowing the evidence Turnbull J. opined: [There are] classifications of experts which come before our court... I shall call opinions formed at the time of treatment treatment opinion and those formed for the purpose of litigation litigation opinions... In my view the purpose of rule is more directed to the latter opinions (i.e.: litigation opinions) rather than the prior opinions (treatment opinions). It is clear that Moore and Stinson J. take a narrower interpretation to the scope of new rule as compared to Turnbull J. What is unclear, however, is whether both approaches can co-exist and the implications they will have on how the court will treat accident benefit assessments going forward. 25 Ibid. at para For a fuller discussion of this issue see: Brian JE Brock, QC, Expert reports: The expert dilemma under the current rules Rule in Stephen Grant ed, The Advocates Journal (Toronto, December 2010). 27 Beasley and Scott v Barrand, 2010 ONSC 2095 at paras [Beasley]. 7

8 IV. SERVICE OF EXPERT REPORTS The new rule calls for the timelier service of expert reports with the timelines being linked to the date of the pre-trial rather than trial. Under the old regime, expert reports had to be served at least 90/60 days before trial. The amended rule 53.03(1) now requires expert reports to be served at least 90 days before the pre-trial conference. 28 Similarly, rule 53.03(2) requires a responding report to be served at least 60 days prior to the pre-trial conference. 29 Further, rule 53.03(2.2) requires parties to agree, within 60 days of an action being set down for trial, to a schedule for the service of expert reports to comply with the above timelines. 30 The rule with respect to service of supplementary reports remains unchanged and judges maintain the residual discretion to extend time for service under rule 53.03(4). 31 Furthermore, despite recommendations by Osborne to replace the word shall with may, rule 53.08(1) provides that leave to admit late delivery of expert reports shall be granted unless to do so would cause prejudice or undue delay. 32 That said, it is worthy of note that the new amendments are a minimum requirement and counsel is always encouraged to reach agreement and exchange reports as early as possible. The amendments to the timelines for service are aimed at promoting early settlement and avoiding trial adjournments related to late service. 33 As stated by Osborne, [t]he timing of delivery of expert reports under the current [old] rules does not promote early settlement and may result in late requests for trial adjournments... without disclosure of these reports, parties are often unwilling or unable to enter into meaningful settlement discussions. 34 The goal, therefore, is to combat the costs arising out of delay and to foster an environment of early and meaningful resolution. The new linking of expert reports to the pre-trial date as opposed to the trial date means that counsel should consider retaining an expert as early as possible. Of the same vein, pre-trial dates should not be arbitrarily set, and parties should ensure that expert reports can be completed within 90/60 days of the date selected. Further, as noted above, the new timelines will ensure reports are available for pre-trial; thus, allowing for meatier discussions about areas of risk and settlement options. It is worth noting, however, that the availability of expert reports at pre-trial was already a requirement under rule The timeliness of expert reports has been discussed in three cases before the Ontario Superior Court: Clarke v Hassan, 2011 ONSC 467, Givogue v Burke, 2010 ONSC 5075, and Rumpco Ltd v Hakim Optical Laboratory Ltd, 2010 ONSC Clarke v Hassan, 2011 ONSC 28 Rules, supra note 5 at r 53.03(1). 29 Ibid. at r 53.03(2). 30 Ibid. at r 53.03(2.2) 31 Ibid. at r 53.03(3) and (4). 32 Ibid. at r 53.08(2)4. 33 Osborne J., supra note 6 at Ibid. 8

9 467 involved a motion for trial adjournment where the plaintiff was unable to proceed to trial. With respect to the service of expert reports the court noted, [t]he Plaintiff insist[ed] on only producing or advising of experts 90 days before the pre-trial conference in accordance with [the rules]. In condemning this behaviour, the court provided: There is no good reason for counsel to sit on an expert s report... [And] the practice in... civil litigation is for a party to provide a copy of an expert opinion on which it intends to rely very soon after it is obtained... [S]trict reliance on the minimum time limits in the Rules of Civil Procedure will not permit the smooth administration of justice. The failure to produce expert reports on a timely basis produces requests for adjournments that, in the interests of justice, must often be granted. 35 In Givogue v Burke, 2010 ONSC 5075, Justice Charbonneau heard a motion by the plaintiffs seeking an order extending the timeline for the exchange of expert reports under rule 53.08(1). The plaintiffs sought to introduce additional expert evidence but failed to provide the court with the name of the anticipated expert. The court denied leave on a without prejudice basis stating, [g]iven the very long delays already incurred, I am reluctant in granting the requested leave to file the report of an expert which may or may not exist, and may or may not be retained. 36 Lastly, in Rumpco Ltd v Hakim Optical Laboratory Ltd, 2010 ONSC 5286 the court allowed the late filing of expert reports by the plaintiffs but denied the defendants a trial adjournment to review the reports. Justice Power acknowledged the recommendations made by Osborne, but felt that the defendants had not been prejudiced by the late filing and the decision to refuse an adjournment was in the interests of justice considering the interests of the parties and the administration of justice generally. 37 What can be gleaned from these decisions is that the overriding considerations are delay, trial adjournments, and the costs associated with both. V. EXPERT MEETINGS, NUMBER OF EXPERTS, AND SCOPE OF EXAMINATION The new rules allow the court to order that experts meet on a without prejudice basis prior to trial to identify issues they agree and disagree on, and issue a joint statement on areas of agreement and disagreement with reasons. This power is available at pre-trial if the matter does not settle and on a summary judgment motion if the action is ordered to proceed to trial Clarke v Hassan, 2011 ONSC 467 at para Givogue v Burke, 2010 ONSC 5075 at para Rumpco Ltd v Hakim Optical Laboratory Ltd, 2010 ONSC 5286 at para Rules, supra note 5 at r 50.07(1)(c) and r 20.05(2)(k). 9

10 With respect to the number of experts, section 12 of the Evidence Act 39 limits the number of experts that either party may call to three, unless leave of the judge is obtained. No amendment was made to section 12, despite complaints that section 12 is largely ignored by counsel and the courts. That said, new rule 50.06(8) was created and compels a judge to consider the proposed number of expert witnesses during the pre-trial conference. 40 And, while not relevant in the Central-South jurisdiction, the number of expert witnesses is also a factor to be considered when deciding whether or not an action should be case managed under rule On the issue of examination, under the old rules, parties who undertook not to call an expert at trial did not have to disclose information where the findings, opinions, and conclusion of the expert, made or formed in preparation for litigation, related to any matter in issue. Now, under rule 31.06(3), parties do not have to disclose the findings, opinions, and conclusion of the expert, made or formed in preparation for litigation, relevant to any matter in issue. 42 According to Osborne, requiring experts to meet and confer prior to trial will help reduce expert bias. Moreover, having experts meet prior to trial is aimed at clarifying disparate interpretations of underlying facts and assumptions and would introduce a level of accountability that may deter hired guns. 43 In other words, the new expert meeting provisions hope to encourage greater credibility and objectivity through a system of intellectual debate. With respect to limiting the number of experts, the goal is to avoid not yet incurred expenses relating to unnecessary expert reports that unduly add to the cost of litigation. 44 Lastly, while not specifically directed at expert evidence, the changes to the discovery provisions were intended to narrow the scope of discovery and provide a clear signal to the profession that restraint should be exercised in the discovery process. 45 All three above noted changes have the potential to affect the cost, delay, and narrowing of issues throughout the trial process. The impact of these changes, however, is yet to be thoroughly canvassed by the courts. VI. CONCLUSIONS Franklin Roosevelt put it best when he said there are as many opinions as there are experts. 46 It is the court s duty, as gatekeeper, to limit opinions to those which are necessary for the just, most expeditious, and least expensive determination of an issue on the merits. In light 39 RSO 1990, c E Rules, supra note 5 at r 50.06(8) 41 Ibid. at r Ibid. at r 31.06(3). 43 Osborne J., supra note 6 at Ibid. at Osborne J., supra note 6 at Franklin Roosevelt, speech June 12,

11 of the recent amendments and the caselaw that follows, it is clear, now more than ever, that the bench is committed to this goal. Looking back, the role of the expert to assist the trier in matters outside his or her expertise may have been lost in our adversarial process. Thinking forward, for the litigator, the implications of the amendments are clear: choose a credible expert, bring the duty under rule to their attention, aim for a well-balanced clean report, and be fair. Counsel should be prepared to have all discussions with the expert discussed at trial. Counsel should also turn their attention to realistic timelines that avoid unnecessary cost and delay through trial adjournments. The amendments are still young and it is difficult to make firm conclusions as to the extent of their impact. That said, the new regime serves to remind counsel and educate experts of their respective roles in the litigation process. The hope is to promote access to justice, which can only be achieved where counsel and experts on both sides keep in mind the importance of just, expeditious, and cost conscious results. 11

12 Table of Authorities LEGISLATION Evidence Act, RSO 1990, c E 23. Rules of Civil Procedure, RRO 1990, Reg 194. Bakalenikov v Semkiw, 2010 ONSC Beasley and Scott v Barrand, 2010 ONSC Bookman v Loeb, [2009] OJ No 2741 (Sup Ct). JURISPRUDENCE Browne (Litigation Guardian of) v Lavery (2002), 58 OR (3d) 49 (Sup Ct). Clarke v Hassan, 2011 ONSC 467. Docherty v Lauzon, 2010 ONSC Frazer v Haukioja, [2008] OJ No 3277 (Sup Ct). Girao v Cunningham, 2010 ONSC Givogue v Burke, 2010 ONSC Ikea Properties Ltd v Canada Inc, 2010 ONSC McCullough v Riffert, 2010 ONSC Rumpco Ltd v Hakim Optical Laboratory Ltd, 2010 ONSC SECONDARY MATERIALS Anderson, Glenn R, Expert Evidence 2d ed (Markham: Lexis Nexis Canada Inc, 2009). Brock, Brian JE, Expert reports: The expert dilemma under the current rules Rule in Stephen Grant ed, The Advocates Journal (Toronto, December 2010). Langford, Jane A, Disclosure: The route to objective, non-partisan expert reports? in LSUC, Expert evidence explained: a program for all civil litigators (Toronto, 2010). Osborne J., Summary of Findings and Recommendations of the Civil Justice Reform Project. Online: < Report_EN.pdf>. 12