EXPERT WITNESS DISQUALIFIED DUE TO CONFIDENTIALITY OBLIGATIONS TO OTHER PARTY
Abbott Laboratories v. Canada (Minister of Health) 2006 FC 76 (CanLII)
A motion to retain a proposed expert was dismissed because he had received confidential information from the opposing party in a prior proceeding with issues identical to those in the case at bar. The expert had signed an undertaking by which he agreed not to use any confidential information for any purposes other than for that proceeding. The Federal Court stated that the prejudicial effect to the opposing party would outweigh the interests of the moving party.
Drafters need to ensure that confidentiality agreements entered into with experts require the expert to give notice to the disclosing party if the expert may be called upon to give expert evidence in a proceeding. The purpose is to give the disclosing party an opportunity to oppose the use of the expert as a witness if there is a danger to the preservation of the confidentiality of the disclosing party’s confidential information.
Details of the case:
In Abbott Laboratories v. Canada (Minister of Health) (2006) (FC), the moving party, Pharmascience, sought leave of the court to file additional affidavits of its proposed expert in this proceeding related to the invalidity of a patent. The responding party, Abbott, opposed the motion because the proposed expert, Dr. Rhodes, had received highly sensitive and confidential information from Abbott when he was retained as an expert for them in a prior proceeding with identical issues to the ones at bar. Abbott argued that it would suffer prejudice if Dr. Rhodes were allowed to provide an expert opinion. In addition to participating in confidential discussions related to the ratiopharm proceeding, Dr. Rhodes was privy to confidential discussions related to Abbott’s potential defences to the invalidity claim and other litigation strategies. The Federal Court laid out the approach to be taken in determining whether or not an expert should be disqualified. The court must consider the circumstances of the case, including: (1) whether the expert knew he or she was receiving confidential information; (2) the nature of the confidential information; (3) the risk of that confidential information being disclosed; (4) the risk of prejudice arising to either party; and (5) the interests of justice and public confidence in the judicial process. The court balanced the overall fairness of Pharmascience’s request against Abbott’s interests in protecting its confidential information, which, even if forgotten by Dr. Rhodes, could potentially influence or be inadvertently disclosed in respect to the proceeding. The court also noted that Pharmascience would be able to retain another qualified expert.
To read the full case on CanLII, click here.
Kathy Tomaszewski: Kathy earned an LL.B from the University of Western Ontario and was awarded a Gold Medal for the highest average in her graduating class. She articled as a law clerk to Hon. Bora Laskin, Chief Justice of Canada, Supreme Court of Canada. As a law student, Kathy also worked for one of the ‘Seven Sisters’, drafting proposed amendments to the Income Tax Act, and working in the litigation department. After receiving an LL.M. from Harvard University, Kathy taught law full-time for 10 years at the University of Western Ontario in the areas of constitutional, corporate and commercial law. In addition to teaching and publishing in these fields, Kathy acted as a consultant for the Ontario Securities Commission (researching proposed legislative changes), and the Ontario Human Rights Commission (sitting on Boards of Inquiry). Kathy also taught a course in Securities Regulation as an Adjunct Professor at the Law Faculty of the University of Toronto.While caring for her growing family, Kathy launched her own business in private educational therapy. Kathy has worked with many individuals challenged by learning difficulties and developmental delays, helping them to become independent learners. She has designed and taught courses in all subjects K-grade 8, with a specialty in logic, critical thinking, and writing skills. Kathy continues to act as a research consultant for small law firms on issues ranging from family and criminal law, to human rights and constitutional law. Kathy started with Clausehound in November 2014, and is the Company’s Knowledge & Research lead.