{"id":10713,"date":"2024-05-08T15:49:45","date_gmt":"2024-05-08T19:49:45","guid":{"rendered":"https:\/\/360mediations.com\/en\/?p=10713"},"modified":"2024-05-08T15:49:48","modified_gmt":"2024-05-08T19:49:48","slug":"expert-report-ruled-inadmissible-where-expert-had-access-to-settlement-discussions","status":"publish","type":"post","link":"https:\/\/mail.360mediations.com\/en\/expert-report-ruled-inadmissible-where-expert-had-access-to-settlement-discussions\/","title":{"rendered":"Expert Report Ruled Inadmissible Where Expert Had Access to Settlement Discussions"},"content":{"rendered":"\n

In this recently released decision, the court had to contend with the admissibility of a report tendered by an expert who had access to the settlement discussions between the litigants.\u00a0<\/p>\n

In many civil cases, the chances of this occurring is rare.\u00a0 For example, in a personal injury context, it would be rare indeed for a medical expert to be provided with settlement details. \u00a0\u00a0But it has happened, as in the case of Cardillo v. NN Life\u00a0<\/em>Insurance<\/em>\u00a0Company of Canada et al<\/em>,\u00a02005 MBQB\u00a0281<\/a>,\u00a0197 Man. R. (2d) 271, where the expert was disqualified because he received and reviewed the mediation briefs exchanged between the litigants. \u00a0<\/p>\n

In other contexts, however, there is a higher risk for experts to become aware of “positions” being taken by the litigants, and hence, care should be taken to avoid sharing any without prejudice communication.\u00a0<\/p>\n

Illustrative in this recent case was an expert retained in a right-of-way dispute.\u00a0 Here the expert was retained by the Applicant to provide expert opinion and a technical assessment concerning the right of way, and to recommend a solution that would allow both parties space to park their vehicles and allow the Applicant\u2019s vehicle to come and go unobstructed all year round.\u00a0<\/p>\n

The expert prepared a report that simply evaluated two options: the one solution that the Applicant had offered, and the one solution that the Respondent had offered.\u00a0 \u00a0The problem, however, was that the expert was privy to the many exchanges between counsel discussing the proposals to resolve the dispute, including formal Rule 49 Offers.\u00a0<\/p>\n

As such, the expert knew who was proposing each scenario, and what outcome each party wanted.\u00a0 The Respondent wanted the expert\u2019s report to be inadmissible as a result: arguing that the expert had lost their ability to be impartial, and arguably, may have turned into an advocate.\u00a0 The court agreed, and the report was struck.<\/p>\n

Realistically, in many disputes the litigant\u2019s offers and\/or their respective settlement proposals are central to dispute and hence must be disclosed to the court.\u00a0 For example, when disputing a right of way, which can give rise to many issues such as ingress and egress rights, maintenance rights, size, time, duration of usage, etc., the parties must come to the table with some \u201cargument\u201d and that argument will often replicate their settlement position at some point during the dispute.\u00a0 There is no way around it.\u00a0 As the judge recognized, at paragraph 98 of the decision, the “….the application judge will be able to consider various proposals for the right of way access.\u201d<\/p>\n

But it is one thing for the parties to know (and share) their positions with the judge, and it is another thing to share their positions with the expert who must remain neutral at all times.\u00a0 So if an expert opinion is required in these scenarios, it must be done right.\u00a0 A retainer letter to the expert that only provides the expert with two scenarios, and asks for an opinion on which one provides the best solution (presuming \u201cbest\u201d is definable by certain metrics), without ascribing the scenario to any one litigant, would arguably be proper.\u00a0 And it would be even more proper if the retainer asked whether the expert could devise a scenario that was better than the two provided (using the same metrics).\u00a0 Where things derailed in this instance was that the authorship of the two scenarios was shared, and the without prejudice communications surrounding those scenarios was divulged to the expert.\u00a0 This arguably then tainted the expert, and possibly turned them into an advocate. \u00a0<\/p>\n

Put another way, it would be much better to hear an expert say \u201cI believe scenario 1 is better because of \u2026..\u201d, rather than \u201cI believe the scenario suggested by the Applicant is better because of \u2026.\u201d: the later is potentially tainted or biased, and the former is unbiased given that the expert wouldn\u2019t know whose proposal it was.<\/p>\n

This case also has some other instructive elements pertaining to expert reports:<\/p>\n