Judge Raises Questions About the Neutrality of Expert Witnesses: Moore v Getahun

A recent Ontario Superior Court ruling has the potential to have a serious impact on evidence law. The medical malpractice suit has sparked conversations among lawyers throughout Ontario and across Canada and has prompted civil litigators to ask what meets the test of allowable communication with their expert witnesses.

Evidentiary Concerns

The case, Moore v Getahun, 2014 ONSC 237, was decided last January. In her thorough discussion of the case, Justice Janet Wilson noted that one of the expert medical reports showed clear signs of input from counsel. She declared that it is inappropriate for counsel to review drafts of expert reports before finalizing them, writing, “Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable” (para 50). She also raised the issue of what weight should be given to an expert witness who has not filed a complete report to the court. Her evidentiary queries were informed in part by the policy rationale behind amendments to the Rules of Civil Procedure, RRO 1990, Reg 194 (“Rules”), affecting expert testimony that were made in 2010.

Justice Wilson notes in her decision that the 2010 changes to the Rules “were to address the ‘hired gun approach’ to expert evidence, and to emphasize the importance of expert witness independence and integrity.” (para 298) Medical expertise was a critical aid to the court in the case at bench, as the plaintiff, Blake Moore, sought to hold the defendant, Dr. Tajedin Getahun, liable for permanent injuries to his arm. Witness testimony was complicated beyond the issue of counsel reviewing draft reports because one of the expert witnesses for the plaintiff (Dr. Orsini) had died before the case reached the bench. A further wrinkle was that the emergency room physician, acting urgently to prevent harm, failed to keep detailed notes.

Facts of the Case

In November 2005, Mr. Moore, then 21, was performing motorcycle tricks with a group of his friends in a Scarborough parking lot. He lost control of his bike, fell on its accelerator and was propelled into a parked Hummer vehicle at about 50 km per hour. His right wrist hit the vehicle at high impact.

The plaintiff was taken to Scarborough Hospital’s emergency department. The defendant attempted to realign the patient’s bones and then applied a full (circumferential) short cast to the lower right arm. The realignment of the bones was partially successful. There was a dispute over how clear the defendant was about the need for surgery on the patient’s wrist. The plaintiff left the hospital believing that he had a week to get a second opinion. The next day, in extreme pain, the plaintiff went to North York General’s emergency department and, after some delay, showed his now-swollen arm to an emergency doctor. The doctor, Dr. Tanzer, ordered X-rays and ordered that the cast be split to relieve pressure from the swelling.

Tanzer expressed concerns that the patient had compartment syndrome, a condition caused by excessive pressure in a muscle compartment. He called in the orthopedic surgeon, Dr. Orsini, who decided that surgery was critical in order to prevent the loss of the patient’s arm. The operation successfully stopped further damage to the plaintiff’s arm and amputation was not required. However, the plaintiff had sustained lasting damage to his arm. He brought a malpractice suit against the defendant for his choice of treatment.

The Legal Issues and Findings

Justice Wilson set out two issues to determine liability: (1) whether the defendant had met the standard of care of a general orthopedic surgeon in 2005 in an Ontario community hospital (2) whether the plaintiff had successfully met the onus of proof to show that, on a balance of probabilities, the treatment provided by the defendant had caused the compartment syndrome.

The judge went through a rigorous analysis of expert testimony and determined what testimony could be admitted. Dr. Orsini’s report was allowed in as factual evidence, but, because his 2008 death made him unavailable for cross-examination, his opinions about the defendant’s negligence were admitted only as context. The judge admitted two reports by Dr. Richards, an expert for the plaintiff, who testified in court. She also considered reports and testimony from defence witnesses Dr. Taylor and Dr. Athwal and heard from Dr. Tanzer, the emergency room technician who had diagnosed compartment syndrome but had not filed a formal expert witness report.

Justice Wilson found that Dr. Athwal was not neutral and seemed to be biased in favour of the defendant. While she found Dr. Taylor neutral and helpful, she was concerned by the fact that his report showed evidence of draft revisions and the fact that he confirmed he had sent the report to the defence counsel for comments. She found Dr. Richards neutral in his approach.

The findings were linked to what Justice Wilson saw as the credibility and neutrality of the expert witnesses. She found that Dr. Getahun did not meet the standard of care in Ontario in 2005 for this type of injury. To do so, he should have applied splints or a bivalve cast and warned and educated the patient about the risk of compartment syndrome. She further found that the plaintiff had met the onus of proving that on a balance of probabilities that the application of the full cast caused the compartment syndrome to develop.

Expert Evidence

The issue that has brought this case scrutiny was Justice Wilson’s condemnation of the long-standing practice of counsel to review draft reports before an expert finalizes that report for submission to court. She focuses on the amended version of Rule 53.03, which covers the requirement for expert witnesses to outline the substance of their testimony in a report and to serve it to all parties in advance of a trial. In her reasons, she states, “…[T]he purpose of Rule 53.03 is to ensure the expert witness’ independence and integrity. The expert’s primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude that counsel’s prior practice of reviewing draft reports should stop.” (para 50)

The Next Stage

The Getahun decision is under appeal in Ontario. In the meantime, a group of medical litigators called the Holland Access to Justice Medical Malpractice Group has declared that its members intend to continue their practice of discussing and reviewing draft reports, according to Law Times. The Holland Group has moved to intervene in the appeal. It represents both defence and plaintiff litigators.

This development is promising. The issue of communicating with experts should be debated more fully and in a broader forum. The integrity of expert witnesses is a serious issue – having tainted witnesses or witnesses who can be bought is not in the interests of justice. However, there should be some room for counsel to have discussions with experts and help their experts narrow their focus to legal issues.

The administration of justice benefits more from a sharply focused and well-articulated report than from a report that includes complex but irrelevant issues that are discussed in specialized jargon. The role of the advocate includes the role of storytelling and clarifying the issues. Discussions between counsel and experts should be able to find a way for litigators to help tell an expert’s story without compromising that expert’s integrity or neutrality.

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