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Expert blocking adding to cost, delay in justice system: Ford

By AdvocateDaily.com Staff

Parties to personal injury litigation should be barred from burying unfavourable expert reports, says Toronto orthopaedic spine and trauma surgeon Dr. Michael Ford.

Ford tells AdvocateDaily.com that the practice of “blocking,” in which one party hires an expert, only to conceal the contents of that person’s findings if they’re not satisfied with the results, appears to be happening more frequently in the province.

“The report never sees the light of day, and then the expert can’t be used by the defence in that case,” he says. “I think it’s totally inappropriate. Neither side should be able to cherry-pick, and only submit reports they like.

“In my opinion, they should be obligated to produce any report that was obtained to the opposing party,” adds Ford, who suspects some of his own have been buried in cases where he examined prospective plaintiffs.

In medical malpractice cases, he says a plaintiff’s lawyer will sometimes cut him off at an even earlier stage by asking him for a brief overview of his findings over the phone.

“If it seems like I’m going to generate a report that’s not favourable, they will ask me not to send one at all,” Ford explains. “For some of them, not wanting a report means that they’re going to talk to their client and let them know they should not proceed with the case. That obviously expedites things and eliminates unnecessary costs and load from the system.

“But for others, it allows them to continue shopping around until they find an expert whose view is more favourable,” he adds.

Expert blocking only adds to the costs and delay associated with Ontario’s overloaded court system, says Ford, who has long pushed for some sort of third-party body to appoint qualified experts to cases, especially those involving minor injuries.

Alternatively, he advocates for hot-tubbing, a process in which experts from both sides meet to produce an objective and evidence-based consensus report.

“Hopefully that would eliminate many of the minor cases that are currently going to court,” Ford says. “At the other end of the scale, it would also do something to expedite the process for those seriously injured people who are deserving of compensation, so that they can receive their money in a timely fashion instead of having their cases drag on for years.

“There has to be a fairer and more objective way of doing things because this sort of blocking and burying amounts to gamesmanship, rather than fairness and justice,” Ford adds.

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