Privilege Waived on Expert’s Report After It Was Reviewed by Second Expert

UPDATE: We have learned that the plaintiffs have sought leave to appeal Justice Power’s decision. We will report the outcome of that motion, which is to be heard on July 20, 2007. 

It is our understanding that the main (although not the only) ground on which the plaintiffs intend to challenge the ruling of Power J. is the fact that the expert Sack said that the report of expert Gray had not affected Sack’s opinion. Justice Power found that it could have had an effect. It sounds like the issue will be whether a court should apply a subjective test (was the second expert actually influenced by the first expert’s report or not?) or an objective test (is it reasonable to conclude that the first expert’s report had some effect on the opinion of the second expert?)

Our original post follows.

In Bazinet v. Davies Harley-Davidson, Mr. Justice Denis Power held that privilege had been waived on an expert’s report for which privilege had been claimed after that report was referred to in a report from another expert. Waiver of privilege occurred when the report of the second expert was produced to the defendant.

The action arose out of a single-vehicle motorcycle accident. The defendant was alleged to have negligently repaired the plaintiff’s motorcycle.

Counsel for the plaintiff had obtained a report from an expert by the name of Sack, which report was produced to counsel for the defendant. In that report, Sack had said that he had reviewed an earlier report that had been prepared by another expert, Gray. That report had been obtained at the request of counsel for the plaintiff prior to the commencement of the litigation. The plaintiff had claimed privilege on the Gray report and did not intend to call Gray as a witness at trial.

On the motion, the plaintiff had filed a letter from Sack, in which the latter said that although he had read Gray’s report, “this document did not play any role in the opinion I established”. Justice Power said that he “had some difficulty” with that statement. He asked that he be given a copy of the Gray report. His Honour reviewed the report and placed it in a sealed envelope, in the court file. His reading of the report led Power J. to say that Sack’s statement, that the Gray report had played no role in Sack’s opinion, “is certainly a proposition subject to argument because the Gray report expresses possibilities and probabilities for the tire failure”.

Turning to an analysis of the law, Power J. said that prima facie, the defendant was not entitled to production of the Gray report. He referred to a decision of Mr. Justice Ferguson in Browne v. Avery and to the Court of Appeal’s decision in Conceicao Farms Inc. v. Zeneca Corp. Drawing on these authorities, Justice Power held that privilege on the Gray report had been waived by the production of the Sack report. As well, he found that the document was producible as a “finding, opinion or conclusion” of the expert Sack. His Honour said:

 [32] The law appears settled that a report of one expert that was apparently used and considered by another expert is subject to disclosure to an opposite party in circumstances where the privilege is waived concerning the report of the second expert. Courts have reasoned that the first report is a “finding” within the meaning of Rule 31.06(3). The term “findings”, has been held to include the information and data obtained by an expert contained in documents where it appears that the expert reached his or her conclusion and opinions apparently based, in part at least, on such findings.

[33] The plaintiff’s decision to rely on the Sack report constitutes a waiver of privilege over that report and, by inference, over the report of Mr. Gray even if a waiver of privilege with respect to the Gray report was an inadvertent one.

[34] In these circumstances I am compelled to conclude that the Gray report is a relevant document in the plaintiff’s possession and should be produced under Rule 31.06 on the grounds that the report is no longer privileged, privilege having been waived. The defendants are entitled to the disclosure and production of the report for the purposes of inspection of the report. The defendants are also entitled under Rule 31.06(3) to obtain disclosure of the findings, opinions and conclusions of Mr. Gray because, privilege having been waived, the plaintiff was not in a position to refuse disclosure on discovery. As well, even if there was no waiver of privilege, the defendants are entitled to the information pursuant to the said rule.

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