Expert Evidence and Litigation Privilege

It is common for lawyers involved in personal injury claims to retain the services of expert witnesses.  The most common expert witnesses are medical doctors but often engineers, economists, and other specialists are brought into the fray.
Experts are typically retained to be involved in two common roles.  The first role is to provide expert opinions to assist the judge or jury to understand the evidence called at trial.  The second is to assist counsel in preparing the case for trial.  When experts are retained to assist counsel to prepare for trial the communications between the expert and the lawyer are confidential and subject to litigation privilege.
When an expert takes the stand and gives opinion evidence they are subject to a cross-examination that is quite wide in scope.  Does this permit the opposing side to ask questions about the confidential opinions and advice the expert gave the lawyer that retained him prior to trial?  Not necessarily.  Reasons for judgement were transcribed today by the BC Supreme Court, Vancouver Registry, dealing with this issue.
In today’s case (McLaren v. Rice) the Defendants to a car accident claim hired an engineer who was qualified to give expert opinion evidence regarding accident reconstruction and speed and speed changes.  During cross examination the lawyer for the Plaintiff asked whether the defence lawyer sought his opinion with respect to a vehicle’s tie-rod and ball-joint assembly.  The Defence lawyer objected to the question claiming it addressed matters that were protected by litigation privilege.  Mr. Justice Brooke upheld the objection and in doing so summarized and applied the law as follows:

[4] In the recent decision of Madam Justice Satanove in Lax Kw’alaams, 2007 BCSC 909, the nature and extent of litigation privilege was considered.  At paragraph 9, Justice Satanove referred to the decision in Delgamuukw where it was said that litigation privilege was waived when the expert witness was called, but that that waiver was to be narrowly construed and privilege maintained when it was fair to do so.

[5] In Vancouver Community College v. Phillips, Barratt (1987), 20 B.C.L.R. (2d) at 289 (S.C.), Justice Finch, as he then was, recognized that even where an expert is called as a witness he may remain a confidential advisor to the party who called him at least in regard to advising on cross-examination of the other side’s witnesses, including the other side’s expert witnesses.

[6] In Lax Kw’alaams as well as in Barratt, the issue was the production and cross-examination on documents that had been prepared by the witness.  As I understand it, here all privileged documents are set out in part 3 of the document disclosure of the defendant and there is no suggestion that there are undisclosed documents.

[7] What the plaintiff wishes to cross-examine upon is not documents, but oral advice or opinions or commentary concerning the tie-rod assembly and ball joint, an area which the report of Mr. Brown does not pretend to address.

[8] I find, if Mr. Brown was asked questions out of court regarding the tie-rod and ball-joint assembly it was to assist the defendant in its defence of the plaintiff’s claim and specifically the allegation that the collapse of the tie-rod and ball-joint assembly caused the accident in which the plaintiff sustained devastating injuries.

[9] In my opinion, it would not be fair to require Mr. Brown to answer questions directed to matters outside the scope of his report because it could give the plaintiff an advantage not available to the defendant.  Here I refer to paragraph 29 of Barratt.  Moreover, to permit such cross-examination would cast a chill over the ability of counsel for both plaintiffs and defendants to properly prepare their client’s case and also to answer the other party’s case.  In the result, the objection of the defendant is sustained.