Retaining expert witness previously employed by opposing party

The role of expert testimony is substantial at trial. The relative credentials, expertise and experience of expert witnesses retained by the defense and plaintiff counsels has an enormous impact on the credibility of the experts' testimony and correspondingly, in swaying judge and jury.

In addition to facts, expert witnesses offer opinion where their specialized knowledge allows them to determine implications from facts. Medical professionals, for example, present their interpretation of, and predictions on the impact of a person's injuries on current and future mobility and suffering.

Under the Rules of Civil Procedure, the duty of every expert witness is to provide evidence that is fair, objective and non-partisan, and related only to their area of expertise. In some cases, an expert retained by one party later becomes employed by the opposing party.

There are three guiding principles governing whether an expert may be disqualified when called by an opposing party, as defined in Charlebois v SSQ, Life Insurance Co. Inc. (2015) ONSC 2568. The first is that 'there is no property in a witness', meaning no one owns a witness. Secondly, an expert can provide an opinion and be called as a witness at trial for an opposing party. Finally, an expert may not be questioned on any privileged information received from the opposing lawyer or reveal any opinion given in confidence by said lawyer.

Case example

Given the importance of expert opinion in determining the outcome of a trial, it is not uncommon for opposing counsel to take action to block the use of experts that are being retained by the opposite side, as was the case in Charlebois v. SSQ Insurance Company Ltd. (2015).

Ms. Charlebois initiated a suit against the SSQ Insurance Company for improperly terminating her benefits under a disability insurance policy. During the course of this action, SSQ filed a motion requesting the removal of Ms. Charlebois' legal counsel, Mr. Larmer. SSQ asserted that Mr. Larmer had retained two experts on behalf of Ms. Charlebois, whom SSQ had previously retained to advise it with regards to Ms. Charlebois' injuries and her claim for benefits.

SSQ argued that the two experts, a psychologist and an occupational therapist were given confidential and litigation-related information by SSQ, and contended that the court's supervisory jurisdiction to prevent unfairness was good reason to grant their request.

The motion judge concluded that the experts consulted for Ms. Charlebois' case had not received any lawyer-client privileged information and that there was no breach of duty by Mr. Larmer for retaining these experts. Accordingly, SSQ's request was dismissed by the motion judge. SSQ subsequently filed for appeal of this decision.

This narrative began in 2006, when Ms. Charlebois was injured while visiting a patient at a hospital when door hardware fell onto her wrist and left hand.

In 2007, Ms. Charlebois engaged Mr. Larmer to represent her in an action against the parties she believed were responsible for her injuries. As well as the negligence suit (tort action), Ms. Charlebois made a claim for disability benefits through her employer group policy which was underwritten by SSQ.

Ms. Charlebois was required by the insurance policy to participate in a rehabilitation program which included assessment, counselling, medical treatment and psychological therapy. The SSQ insurance adjustor also employed a rehabilitation service provider, Salus Cura in 2010, to help Ms. Charlebois with her recovery.

An occupational therapist working for Salus Cura referred Ms. Charlebois to Dr. Phillips for a psychological assessment and to determine her treatment needs. Dr. Phillips recommended cognitive-behavioural psychotherapy, but there was some contention presented at trial as to whether Ms. Charlebois underwent this recommended treatment or another treatment option endorsed by SSQ.

Ms. Charlebois was then referred to another rehabilitation program where she met Ms. Hilborn, an occupational therapist, who judged that Ms. Charlebois was a good candidate for this program. Ms. Charlebois subsequently began the recommended program, but SSQ discontinued paying in September 2010 after only six sessions were attended. Then SSQ paid for a different therapy for one more month before they discontinued paying Ms. Charlebois' benefits altogether, in November of the same year.

In early 2011, when Ms. Charlebois engaged Mr. Larmer in the action against SSQ," Mr. Larmer retained Ms. Hilborn and Dr. Phillips to prepare reports stating their opinions on the effect of Ms. Charlebois' injuries and whether she would be capable of participating in productive employment in the future. This expert opinion was for the purpose of both the tort/negligence action and the action against SSQ Insurance.

SSQ objected to the use of these experts by Mr. Larmer and asked that he be removed as counsel, which he refused. SSQ argued that Mr. Larmer should have advised the two experts that if they accepted his request for reports, they would have conflicting duties and might face disciplinary action.

The motion judge rejected this latter argument. He further stated that SSQ's legal counsel may meet with either expert before the trial, but are prohibited from discussing any privileged material that was shared with Mr. Larmer. (Litigation privilege protects the evidence in expert reports; however, the" Rules of Civil Procedure" require that if a party intends to call an expert witness at trial, the opposite party is entitled to obtain disclosure of the expert's findings before trial.)

At the appeal of the motion judge's decision, SSQ argued that this matter was of great importance and also, that there is good reason to question the correctness of the original decision.

On appeal, the judge concluded that Ms. Charlebois had an established doctor-patient (or professional-patient) relationship with the two experts prior to the action as they were both involved in her medical treatment and thus, it is appropriate for Mr. Larmer to consult with them for her case. Also, it was determined that SSQ cited no conflicting decision nor an authority to challenge the correctness of the motion judge's decision. Consequently, the appeal to overturn the motion judge's decision was dismissed.

There is no rule of law barring a party from employing experts previously retained by an opposing party. Nonetheless, as in the case of SSQ, this action causes the party that feels disadvantaged to question the fairness of a system that allows this practice but at the same time, protects confidential and privileged information that was shared with the expert.

With regards to this controversial policy, the appeals judge stated that he "would not like to be understood as encouraging this practice. Certainly, a skilled personal injury lawyer will always seek out the expert witness who best advances the case for his client, whether or not they once represented the opposing side.