Non-Testifying Experts Are Now To Produce All Background Information

Evaluating the strength of a plaintiff's claim just got a bit more complicated. Following a new Superior Court decision, the common practice of retaining an expert just to advise on the merits of the case has been put under more scrutiny, and a manufacturer and its counsel will have to be more cautious in sharing information with their experts – even if those experts will never see the inside of a courtroom. In Andereason v. The Corporation of the City of Thunder Bay ("Andereason"), Justice D.C. Shaw was asked to rule on the extent of expert data that must be disclosed to a plaintiff before the defendant has decided whether or not to call that expert as a witness at trial. The defendant in this case had served the expert's report on the plaintiff, but had not yet decided whether that expert would give evidence at trial. The plaintiff sought production of the underlying data the expert used to generate her report, as well as the expert's entire file.