Moore v. Getahun: Practical Considerations for Construction Law Counsel When Dealing with Expert Witnesses
Firas Ayoub
The Ontario Superior Court of Justice decision Moore v. Getahun 2014 ONSC 237 (“Moore”) has brought the scope of the duty of an expert into question and has given rise to much discussion within the Ontario legal community.[1]
Duty of the Expert
As codified in Rule 4.1.01 of the Rules of Civil Procedure,[2]an expert is required to be independent and impartial. The duty of an expert is not to the client, though the client may have paid for her expertise, but rather to the Court.[3] As per Rule 53.03 (2.1), an expert is required to sign an acknowledgment of her duty to be objective and non-partisan, in the manner set out in Rule 4.1.01 of the Rules.
In Moore, Madam Justice Wilson imposed a strict interpretation of Rule 53.03 of the Rules, instructing counsel in the case to take measures to ensure conformity with it:[4]
Moore is a medical malpractice case in which the plaintiff had suffered a wrist injury in a motorcycle accident and claimed medical negligence against the doctor who treated her. The defendants called an expert to testify concerning the medical treatment. As part of the preparation of the expert’s report, it was revealed that the expert and defence counsel had conducted a ninety-minute call in the course of which the draft report was discussed.
Practice of Working with Experts in Ontario
It has been accepted practice in Ontario for experts to provide counsel with draft copies of their reports so that counsel may review and make comments. This practice, in our view, makes sense, as the expert’s report will only be useful if it stands up to scrutiny in court, including under potentially rigorous cross-examination. The fact that an expert’s draft report, notes and correspondence may be produced under a production order further recommends this practice.[6]
On the other hand, the integrity of an expert’s report and the expert’s credibility as being independent and objective may come into question if the line between commentary and actual influence and input by counsel is crossed. This, in our opinion, is the concern Justice Wilson was seeking to address in her decision and her instructions that there be full disclosure in writing of any “corrections, suggestions, or clarifications”. Justice Wilson’s concern is transparency and neutrality.
Practical Considerations for Construction Law Counsel
Although Moore is a medical malpractice case, it is certainly germane to construction law, given heavy reliance in the field on experts. Experts may be called to describe and discuss technical language, industry standards, and complex issues to the trier of fact such as delays in building, construction defects, construction costs and municipal codes and compliance.
It is important in light of Moore for construction law counsel to consider various strategies to ensure that experts will be viewed as independent and impartial. One measure is focusing on consultation prior to the expert’s drafting of the report. This seems to be a legitimate strategy, given that Moore does not appear to prohibit actual discussion between counsel and the expert prior to the report being drafted. Further, counsel and the expert should be very clear in agreeing on the degree to which involvement from counsel is appropriate and, according to Moore, be diligent in providing, when available, anything that might be considered correspondence related to the draft report to opposing counsel.
The need for counsel to explain an expert’s duty under Ontario law may be especially important when considering hiring experts from the U.S., a jurisdiction where many experts have grown accustomed to being used as ‘hired guns’. In the U.S., an expert’s duty is not formally defined under the Federal Rules of Civil Procedure/Evidence; nor do those Rules set out any specific obligation for the expert to be independent. [7]
Having to find experts outside of Canada may be an issue especially pertinent to construction law, as there may be a very small pool of experts on a specific technical issue, which could be reduced further if some experts are conflicted out.
Counsel should also avoid “expert shopping”, as this goes against the Moore decision by potentially compromising the perceived impartiality and independence of the expert from the outset.
Another possible strategy to maintain the independence and impartiality of an expert may be the use of a single joint expert, where technical matters relevant to both counsels’ cases may be considered.[8]
The strategies described above are especially important when considering hiring experts in cases where the level of scrutiny of their independence and impartiality may be higher. For example, this commonly occurs in construction disputes when an expert is hired by one party in a dispute to determine whether the other party or their contractor or subcontractor, for example, has met the requisite standard of care in the context of their job description and duties.
Conclusion
It is important to note that Moore has been appealed; however no decision has been released at the time of the publication of this case comment. It remains to be seen if and how the Court of Appeal will address Justice Wilson’s findings in the case related to expert witnesses. However, the case acts as a reminder that construction counsel should consider both the practical and policy considerations in dealing with issues of independence and impartiality when working with an expert.