(416) (416) RETAINING FILE IN PERSONAL INJURY LITIGATION THE EXPERT AND PRODUCTION OF THE EXPERT'S. Toronto, Neii P.

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1 THE EXPERT AND PRODUCTION OF THE RETAINING FILE IN PERSONAL INJURY LITIGATION EXPERT'S LLP Lerners 2400 Suite Adelaide Street West 130 Ontario M5H 3P5 Toronto, (416) Tel (416) Fax: Neii P. Wheeler

2 THE EXPERT AND PRODUCTION OF THE RETAINING FILE IN PERSONAL INJURY LITIGATION EXPERT'S CASES REGARDING PRODUCTION OF RECENT FILE EXPERT'S Table of Contents Pa_qe I. OVERVIEW I!. RETAINING THE RIGHT EXPERT Iii. iv. COMMUNICATNG WITH YOUR EXPERTS EFFECTIVELY 12 Vo SUMMARY 16

3 THE EXPERT AND PRODUCTION OF THE RETAINING FILE IN PERSONAL INJURY LITIGATION EXPERT'S them daily. It is easy to become nonchalant about retaining experts and communicating The first part of this paper considers how to retain the right expert. The second part not be weakened even if some or all the expert's file must be produced. Obviously, you should first consider whether you need an expert to comment on a to consider the criteria in R. v. Mohan, [1994] 2 S.C.R. 9 regarding admissibility of expert i. OVERVIEW As a personal injury lawyer, you likely retain experts frequently and communicate with with them. This is dangerous, given the importance of retaining the right expert and the possibility that the expert's file may be producible. considers several recent cases which suggest that the pendulum is swinging away from privilege and toward production of the expert's file. The third part of this paper considers how to communicate effectively with your expert to ensure that your expert's opinion will RETAINING THE RIGHT EXPERT Preliminary Issues (a) Necessity for expert comment particular issue. You clearly will need expert comment on an issue such as prognosis for the principal injury in a personal injury case. With other issues, it may be unclear whether you need expert comment or whether it would be admissible in any event. You may wish

4 evidence, namely relevance, necessity in assisting the trier of fact, the absence of any benefits of retaining an expert are outweighed by the cost, the likelihood of a Generally, you will want to retain a liability expert earlier than a damages expert in a action, and develop a theory to establish or avoid liability, as the case may be. In a generally retain an counsel and defence counsel will consult an expert on standard of care prior to discovery. personal injury case, the extent of potential damages is often reasonably clear even without expert opinion. Further, a damages expert will have difficulty providing an opinion where you may want to retain damages expers early. You may want an early opinion exclusionary rule, and a properly qualified expert. You should also consider whether the responding report from the opposing party, a longer trial, and the potential that the "3 expert" rule in s. 12 of the Evidence Act, R.S.O. 1990, c. E.23 as amended will be enforced. (b) When to retain the expert Assuming you decide that you need an expert, the next question is when you should retain the expert. As with most everything in litigation, the answer is "it depends". In this case, it depends mainly on why you are retaining the expert. personal injury case. You should determine from the outset whether there is a cause of medical malpractice case, for example, prudent plaintiff's counsel will expert before starting an action. Further, in most medical malpractice cases, both plaintiff's Generally, it is less important to retain a damages expert early in the litigation. on the extent of future damage until the recovery has plateaued. There are scenarios

5 a motor vehicle case, often has insufficient information to provide a firm opinion until the discovery transcripts are damages experts, notably doctors, care costs assessors, vocational assessors, economists and actuaries. In less serious cases, you may want to retain experts in sequence and only as needed. It usually makes sense to retain a doctor first, so that you obtain an opinion on the prognosis, severity of injury and the general needs arising from the injury. assessor and vocational assessor. Finally, if appropriate, you can retain an economist in your case, and that it is the right time to retain the expert. Now you face the more confirming "catastrophic impairment" if you are acting for a plaintiff in for example, so that the plaintiff has access to increased statutory accident benefits while the tort action is ongoing. Often, you will not need to retain damages experts until discoveries are complete. This avoids the need to answer awkward discovery questions about whether you have retained experts and, if so, what their findings, opinions and conclusions are. Further, the expert available. In a serious personal injury case, you will know from the outset that you will need several Then, if appropriate, you can retain other experts such as a neuropsychologist, care costs and/or actuary to further quantify the losses. Selecting your Expert Assume that you have decided that you need an expert to provide an opinion on an issue difficult decision of who you should s Iect. There are no firm rules as to how to do this.

6 follow this list every time you retain an expert. The economic realities of a file may prohibit that. You may already know the "perfect" expert for your issue. In most cases, however, the right expert. Conduct a literature search, ideally on line. This is particularly helpful when looking for an expert on a very specific issue. An online search will often reveal three or four individuals who are contributing most of the literature on the issue in your geographic area. Try to obtain curriculum vitae of potential experts. It is often difficult to approach a expert. Your firm may keep a "bank" or database of expert CVs. Alternatively, you Conduct a Quicklaw search or other computerized caselaw search. Computerized caselaw searches are helpful for several reasons. They may yield potential expers. A list of steps to consider is outlined below. It may not be necessary or appropriate to following some or all of the steps noted on the list will increase your chances of selecting Conduct preliminary research before contacting a potential expert. Send an around the office or talk to your colleagues about an appropriate expert. potential expert directly for a CV because it will be clear that you are "vetting" the potential expert, and potentially awkward if you do not ultimately retain the potential may be able to obtain CVs from colleagues in other firms or from professional associations.

7 and "expert" will likely result in several "hits" for your shoulder dystocia case and, be helpful. If you are considering a particular potential expert, you can search by name to identify cases where the potential expert testified or was a party. Transcripts provide insight into how the potential expert might fare at trial in your Consider whether there any conflicts before you retain an expert. For example, about his or her relationship with your firm, and may not recognize the potential have. You may not want to retain someone who has never provided an expert For example, searching using keywords such as "shoulder dystocia", "obstetrician" possibly, identify the extent to which the trial judges found the experts' testimony to Try to obtain a copy of trial transcripts where the potential expert has testified. case. Transcripts are luxuries that are often not available. especially in a larger firm, you may not know without a conflict search that the potential expert is or was a client of your firm. The expert may assume you know concern in any event. Obviously, if the opposing party becomes aware of the nexus between your expert and your firm, it will likely weaken the weight given to the expert's opinion and will likely create embarassment. Consider how much litigation experience you would like your potential expert to opinion before. On the other hand, you likely should avoid the expert who makes litigation work the bulk of his or her practice.

8 Review the opposing party's expert, if you know who that is. If your potential medical expert was a for example, you probably should move on to your second choice. Similarly, if your do if you are plaintiff's counsel and want a treating doctor to provide an expert client/patient, in other situations, it can be difficult to make direct contact with a Consider the "intangible" factors. Try to find out what you can about the potential would like your expert. An expert with an impressive CV but limited interpersonal skills may be less effective with a jury- or a judge for that matter- than a personable expert with a student, intern or resident under the opposing party's expert, potential expert is a surgeon at a certain hospital and the opposing party's expert is the chief of surgery at that hospital, you probably should move on to your second choice. The potential for damaging cross-examination, especially with a jury, is considerable. If possible, arrange to meet or call your potential expert. This is relatively easy to report. You have a "ready made" reason to contact the doctor, namely your mutual potential expert if you are still unsure about whether to retain the potential expert. You might call the potential expert to discuss some articles he or she prepared and discuss retaining the potential expert only if it seems appropriate. The difficulty with the "cold call" to the potential expert is that, if you do not retain him or her, there will be some awkwardness. expert's demeanour and reputation. If you have a jury, consider whether a jury less bulky CV.

9 the expert accumulates over the course of the litigation. Most of the items in the expert's Browne (Litigation Guardian of) v. Lavery defence with a report. The defence then retained engineer B for an opinion on the same issue and provided B with A's report. Defence counsel served B's report. B's report i11. RECENT CASES REGARDING PRODUCTION OF THE EXPERT'S FILE 1. General Assume that you have retained your expert and have served a written report. You intend to call the expert at trial. The report, of course, is only the "tip of the iceberg" of the file that file will be unremarkable, such as Schedule "A" productions. On the other hand, the expert's file may contain sensitive documents such as draft reports, copies of letters to and from you and your expert, and notes of discussions you may have had with your expert. Not surprisingly, the extent to which an expert's file is producible has been the subject of many decisions over the years. This paper does not purport to review these decisions exhaustively. Instead, it outlines several recent cases on the issue that seem to point to a trend toward broader disclosure of the expert's file. Browne (Litigation Guardian of) v. Lavery, (2002) 58 O.R. (3d) 49 (S.C.J.)was a motor vehicle action. The defence retained engineer A for an expert opinion and A provided the indicated that B had been provided with A's report.

10 was given access to A's findings, opinions and conclusions; and his interpretation of disclosure of the findings, opinions and conclusions of an expert engaged by the party call the expert as a witness at trial. Justice Ferguson's comments regarding subrule 31.06(3) are arguably an expert. given to formulate the opinion. The trial judge refused to do so. The defence listed A's report in Schedule "B" of the affidavit of documents and refused to produce it at discovery. Defence counsel undertook not to call A at trial. Defence counsel also permitted plaintiff's counsel to interview A. Plaintiff's counsel contended that A's report was not privileged and had to be produced. Justice Ferguson agreed with the plaintiff. He arrived at this conclusion on "each of two analyses" waiver of litigation privilege attached to A's report because plaintiff's counsel subrule 31.06(3). Subrule 31.06(3) provides that a party on discovery may obtain being examined, unless the party being examined undertakes not to obiter as he first reached his decision based on waiver of privilege. Regardless, his analysis is detailed and has already been followed. Justice Ferguson stated that R v. Stone, [1999] 2 S.C.R. 290 may have overruled the decision in Bell Canada v. Olympia & York Developments Ltd., (1989), 68 O.R. (2d) 103 (H.C.J.) in Stone, defence counsel was ordered to produce an expert report to which he had made reference in an opening statement to the jury. in Bell Canada, one party called The opposing party requested production of everything that the expert had been

11 Lumber Co., (1993), 13 O.R. (3d) 193 (Gen. Div.). In Piche, the court ruled that when an form the basis of the expert's opinion. Justice Ferguson stated that the issue was whether A's report had to be produced After reviewing these cases, Justice Ferguson stated that "the weight of authority and the recent trend is to give a broad interpretation to the term 'findings'" Justice Ferguson cited Carthy J.A.'s statement in General Accident Assurance Co. v. Justice Ferguson also stated that Stone put in doubt the reasoning in Piche v. Lecours expert is called there is no an automatic waiver of privilege over the expert's entire file but only of the facts and assumptions provided to the expert by counsel and then only if those pursuant to subrule 31.06(3) because it formed part of the "findings" of B. Justice Ferguson reviewed the many reported cases regarding the scope of"findings, opinions and conclusions", breaking them down into cases defining "findings" broadly and cases defining "findings" narrowly. Chrusz, (1999), 45 O.R. (3d) 321 (C.A.) that our "modern rules certainly have truncated what would have previously been protected from disclosure". Justice Ferguson stated that "while it may not be consistent with the dictionary meaning of the term 'findings', think the broader approach is now established and in my view is appropriate to accomplish the purpose of this subrule". He therefore concluded that subrule 31.06(3) required production of A's report because it was part of the findings of B. He rejected the argument that 'findings' was restricted to information on which B relied.

12 the scope of the common law at the trial stage were not before him but that it was more fairly and efficiently if parties were required to produce "all communications" which take place between counsel and an expert before the completion of a preparation of the report then it would be best for the litigation system if they were Justice Ferguson noted "this area of law cries out for appellate review", it appears that no Other cases A viaco International Leasing Inc. v. Boeing Canada Inc., [2002] O.J. No. 3799, was a refusals motion. One of the questions in issue involved production of drafts of the plaintiff's 10 Justice Ferguson noted that the full scope of subrule 31.06(3) at the discovery stage and important to consider the direction in which Stone and Browne might take us. Justice Ferguson said that his tentative view was that our system of civil litigation would function report of an expert whose opinion is going to be used at trial. Justice Ferguson acknowledged that there might be discussions between counsel and experts for educational purposes, such as what information the expert needed or discussion regarding questions to be put to the expert. Justice Ferguson nonetheless stated that if these communications took place before producible. leave to appeal was sought in Browne. expert report.

13 The plaintiffs contended that the defence was not entitled to draft reports. The plaintiffs be answered. He determined that draft expert reports represent, at the very least, subrule 1.04(1). He also noted that "it also seems to me, for the reasons expressed by or she changed his or her views from draft to draft and, if so, why." MacLeod ordered that the draft reports did not have to be produced. He did, however, indicate that the experts could be asked questions such as the facts the experts were asked to assume, the documents or other evidence they consulted, the research they 11 relied on Kelly v. Kelly (1990), 42 C.P.C. (2d) 181 (Ont. UFC)in which Becket U.F.C.J. ruled that an expert's draft reports were not "findings, opinions and conclusions" under 31.06(3). The defence relied on Browne. Justice Nordheimer ordered that the question seeking production of draft reports should preliminary findings, opinions and conclusions of the expert and therefore fall within the scope of subrule 31.06(3). He noted that this interpretation of the rule appeared to accord with the general principle that the Rules are to be "liberally construed" in accordance with Ferguson J. in Browne, that a party ought to be able to explore with an expert whether he Caputo v. Imperial Tobacco Limited (2002), 25 C.P.C. (5 th) 78 (Ont. S.C.J.) (C.M. Master), did not deal with production pursuant to subrule 31.06(3) but rather with production of draft reports of experts whose affidavits had been filed in response to a motion. Master carried out to form the opinion, and whether they were told to disregard facts or evidence that might normally have been considered important. Caputo may be closer to the

14 12 "privilege" end of the privilege/production continuum than Browne and A viaco, but not by much. In Hosh (Litigation Guardian of) v. Black, [2003] O.J. No (S.C.), Master Beaudoin ruled that a party on discovery must reveal whether it has engaged an expert, along with preliminary findings, opinions and conclusions of the expert (including oral conclusions). In Arbesman, and Meighen, Demers, [2003] O.J. No (S.C.), Justice Rouleau determined that opinions or views of people an expert interviewed but did not rely upon in the report did not have to be produced. Nonetheless, he ruled that information or data excised from an expert's notes should be disclosed. He felt that a decision to excise information or data is as important as the decision to include it. IV. COMMUNICATING WITH YOUR EXPERTS EFFECTIVELY The cases noted above suggest that it is more likely than ever that some or all of your expert's file will be subject to disclosure at discovery (unless you undertake not to call the expert) or at trial. There is no room for nonchalance and you must communicate effectively with your expert from the outset. A list of suggestions for communicating effectively with your expert is outlined below. Discuss the case with your expert in detail at the outset of the retainer. A face to face meeting is ideal but frequently not practical or cost effective. Obviously, the

15 issue at trial. You should discuss what the expert's anticipated role in the litigation will be (i.e. to provide opinion evidence to assist in fairly resolving the case or assisting the court on a material issue). The expert should understand that he or You should also discuss issues of privilege and disclosure with your expert. 13 discussion will include facts and issues in the case. The discussion should also include the components of a well-written expert report. For example, you should inform your expert that it is important to address each material issue in some detail in the report to ensure the expert will be permitted to testify about each material she may ultimately be asked to testify to the opinion contained in the report and that you expect that the expert will defend the opinion he or she ultimately reaches in the matter, unless of course new evidence arises at trial. Many experts probably have never been informed that the contents of their file may be producible following discovery or at trial, it is important that your expert understands this. Just as you cannot be nonchalant when you communicate with your expert, your expert cannot be nonchalant about the process of arriving at the final report. The process may be the subject of greater scrutiny than the final report itself. Consider including "standard form" paragraphs in your initial retainer letters to experts. These paragraphs can confirm your discussion with the expert about production of file contents, as well as the more general information about expert reports. The letter should also include a statement of applicable legal principles. In a professional negligence cass, you may want to remind your expert what the

16 standard of care means. expert would have handled the matter better than the defendant did. If you are the test for proving a maintain a claim for privilege once the first expert report is in the second expert's hands. Some counsel apparently have a practice of sending a copy of their pre-triai memo to an expert as a way of synthesizing the case. This appears to be a risky 14 If you are acting for the plaintiff, you must make sure your expert understands that it is not sufficient to prepare a written report stating that the acting for the defendant, you must make sure your expert understands that the issue is whether the defendant met the standard of a reasonable professional and not a standard of perfection. You should also consider addressing causation. The expert must understand the test for causation in a civil lawsuit. If applicable, your expert must also understand that the test for proving a future loss is different than past loss. You, your staff, and your expert must remember that all correspondence passing between you may be producible. Your letters to your expert should accurately state the facts of the case and should not inadvertently overstate the case in your client's favour. You should be wary of sending detailed summaries of evidence to your expert along with the transcript. First, your expert may opt to review only the summaries. Second, to the extent the summary does not accurately reflect the transcript, the foundation of your expert's report is weakened. Obviously, you should not provide your expert with any other expert reports over which you intend to claim privilege. Browne indicates you will not likely be able to

17 Second, even if the trial judge finds a way to overlook this, the foundation of your report. This may be vital for the success of your client's case. In the hands of a capable cross-examiner, a the changes. impression that you are prepared and ready for trial. In addition, it may give you 15 practice. First, your expert's ability to testify at trial may be jeopardized if he or she has relied on a document that is not supposed to see the light of day at trial. expert's opinion is weakened to the extent the pre trial memo reflects your advocacy more than the evidence. Perhaps the primary objective of the steps noted above is to increase the likelihood that your expert's first written draft report will be very close to the expert's final series of draft reports with significant changes can be made to look sinister, even where there are perfectly reasonable explanations for Consider serving your expert report as soon as it is finalized. This conveys the increased freedom to communicate with your expert in preparation for trial without have to disclose this communication at trial. Browne suggests that the rationale in favour of disclosing even "educational" communications between counsel and experts is to ensure that the court understands all interaction prior to finalization of the written report. The rationale is no longer present once the report is served.

18 are increasingly likely to be producible. not be weakened even if some or all of the expert's file must be produced. Hopefully, this paper also serves as P. Wheeler Neii LLP Lerners 2400 Suite Adelaide Street West 130 (416) Tel: (416) Fax: 16 V. SUMMARY This paper has considered how to retain the right expert in a personal injury case. In addition, the paper considered recent cases suggesting that the contents of an expert's file Finally, the paper considered how to communicate effectively with your expert to ensure that the expert's opinion will a reminder that the watchword when retaining and communicating with your experts should be vigilance, not nonchalance. Dated: October 31, Toronto, Ontario M5H 3P5