In recent years, there have been a number of court decisions dealing with the role of an expert in litigation. The addition of Rule 53 to the Rules of Civil Procedure addressed some concerns raised by the litigation bar and courts alike, including affirming an expert’s duty to the Court and fairness of the process.
However, the Rule did not deal with all issues raised, including the growing practice of “ghostwriting” by experts – a practice whereby the whole or part of an expert report is written by someone other than the stated author. Given the importance of expert opinion in litigation, not knowing the true author of the report could have serious implications. This is especially true when the opinion expressed in the expert report is not tested in Court.
This issue was reviewed by Justice MacLeod-Beliveau in Kushnir v. Macari, 2017 ONSC 307. The decision involved a motion brought by the Defendant for an order requiring the Plaintiff to attend at two defence independent medical examinations in accordance with Rule 33 of the Rules. The Defendant also sought repayment of cancellation charges for a missed appointment. The Plaintiff did not take issue with the requested medical assessments but required certain additional conditions be imposed before agreeing to attend, namely that: any independent medical examinations conducted not be ghostwritten; the written report, as well as the research and review of medical records, be conducted and drafted solely and entirely by the examining doctor; and that the records not be shared with any third parties.
The Defendant took offense to the proposed condition regarding ghostwriting, arguing that it was suggestive of improper conduct on the part of counsel and the expert, and submitted that a condition that the report be compliant with Rule 53.03 (2.1) is sufficient to address the Plaintiff’s concerns.
The Plaintiff argued that the “no ghostwriting” condition was required, not only to protect the Plaintiff, but also to ensure trial fairness. Counsel argued that ghostwriting of expert reports was becoming commonplace and problematic in litigation files and with expert reports in general.
Justice MacLeod-Beliveau, allowed the Defendant’s motion requiring the Plaintiff to attend the assessments, but with the conditions proposed by the Plaintiff (with some modification to the language of those conditions).
In making her decision, Justice MacLeod-Beliveau noted that the purpose of Rule 33 and section 105 of the Courts of Justice Act is to ensure a fair trial and create a level playing field. Justice MacLeod-Beliveau noted that while ghostwriting does exist within the legal profession, this is distinctly different from the ghostwriting of an expert’s report, as the expert is providing expert opinion evidence that can directly affect the result of the litigation and the interests of the parties.
The case goes on to state that the issue of who wrote the report is of particular importance to the litigation bar, as many cases are resolved prior to trial on the basis of expert reports which form the basis of counsel’s assessment of the case and subsequent offers to settle. The parties pay substantial fees to experts for their reports and they have a right to expect those reports to be written by the author of the report. Not being able to rely on that expectation attacks the “very foundation and purpose of the expert report in the first place, and frankly wreaks havoc with the litigation process.” The unreliability of reports promotes unnecessary litigation.
Many cases are resolved without the opportunity to test the expert reports exchanged. “If the parties cannot rely on the fact that the report is the sole work of its author, then the benefit and cost of expert reports is dubious.”
Justice MacLeod-Beliveau stated that “In my view, the proper interpretation of Rule 33.06 is that the report of the expert shall be written solely by its author. To be clear, the expert report must be that of the expert and not a report written partly by administrative staff or other individuals employed by the agency through which the doctor provides expert services. This is what the parties and the courts expect and it is what the Rule implies. I find ghostwriting offends Rule 33.06.”
Takeaway
Medical experts should be transparent regarding their authorship of a report, including by undertaking their own review of materials or by identifying any summaries they relied on.
Counsel on both sides of the bar should take steps to ensure that this decision and the conditions imposed by the Court are discussed with their experts to avoid any issues of reliability at the time of trial or during negotiations. Transparency in authorship of an expert report is a key factor in its reliability.
About the authors
Lonny Rosen and Elyse Sunshine, Rosen Sunshine LLP