The Plaintiffs in this medical malpractice case moved for production of the instructing letter, e-mails, and memos detailing conversations between the defence expert and lawyer for the Defendant doctor.

The Plaintiffs argued that production of this privileged information should be ordered because the defence expert was asked to assume facts that had not been anticipated in the litigation to date.

The defence lawyer advised when they delivered the expert report that “it will be [the Defendant doctor’s] evidence at trial that [the patient] reported to her that the onset of his constant chest pain was at 5:00 am on July 14, 2015.” In a later exchange, defence counsel advised that “[the Defendant doctor’s] anticipated evidence is based on her own independent recollection of the encounter with [the patient] and is not based on any note or record”.  

The Plaintiffs argued that this has never been the Defendant’s evidence and is, in fact, contrary to the evidence she gave on her examination for discovery.  Plaintiffs’ counsel further argued that the new information from the Defendant was so implausible that defence counsel should be required to disclose what they told the expert about it.

In dismissing the motion, Associate Justice Jolley noted that fundamentally there may be a credibility issue with the Defendant’s new onset of recollection 7 years into the litigation and after having testified under oath that she had no independent recollection of her interactions with the patient apart from her notes which did not contain this information about the timing of the chest pain. 

Nonetheless, the motions judge found that there was no evidence that might support a reasonable suspicion that counsel improperly influenced the expert and litigation privilege continues to attach to communications between defence counsel and the expert.

Decision Date: January 27, 2023

Jurisdiction: Superior Court of Justice – Ontario

Citation: Salamaszynski v Michael Garron Hospital, 2023 ONSC 704 (CanLII)