Peer review is an often overlooked but important step in the finalization of an expert report.  Once an expert has completed his/her expert report, especially one in which the expert has formed an opinion or conclusion, it should be given to another expert for peer review.  This article will discuss the purposes of peer review, who should conduct a peer review, the obligations of the peer reviewer, the obligations of the expert once the peer review has been received and documentation of the review itself.

What is the purpose of a peer review?

Peer review serves a number of important purposes, including the following:

• It constitutes an independent and objective review of the expert’s objectives, methodology and calculations.  A fresh set of eyes can provide a different and much needed perspective on the expert’s work. 
• It assesses whether the requisite analysis has been undertaken and if any further work is merited.
• The reviewer proves commentary as to the soundness of any opinions and conclusions reached. 
• The reviewer offers suggestions on report structure and grammatical issues.

Who should conduct a peer review? 

Ideally, the peer selected to review an expert’s work should be someone more experienced and accomplished than the author of the report.  Though not a legal requirement, it is preferred that at least some reports be reviewed by an expert from a different agency, lab, firm or company.  I say this not to denigrate the person working with you but to make the point that injecting an element of distance and independence generally results in a more objective review.  The peer reviewer should be completely uninvolved in the case that is the subject matter of the report.

Two common responses I hear on this point from experts as I teach expert witness testimony courses across North America are as follows:

Objection 1: “I don’t know anyone outside my agency.”

Answer: Find someone!  Though an expert may work in a silo within his/her own agency, the world is much larger than that.  Expert witnesses have an ethical obligation to remain current in their field of expertise.  One of the ways to accomplish this requirement is to network with other experts at courses, conferences, professional associations, forensic list serves, etc.  Seek out other more accomplished experts for peer review and offer to peer review reports of those experts who are junior to you.  

Objection 2: “My agency won’t let me send active reports to an outside party.”

Answer: Typically, the person who issues this edict within an agency does not understand the need for and value of peer review.  The expert should advise as to the importance and necessity of peer review, as well as the value of independent, extra-agency review.  Both the United States Supreme Court (Daubert v. Merrell Dow Pharmaceutical Inc., 113 S. Ct. 2786) and the Supreme Court of Canada (R. v. J-L. J., [2000] 2 S.C.R. 600) have commented on how trial judges should look to peer review as one of the factors in assessing scientific validity and reliability.  Peer review is done on a confidential basis and no use is to be made of reports submitted for peer review other than for the peer review itself.  Those assurances should assist in seeking extra-agency peer reviewing.

When seeking peer review, avoid going to the same well repeatedly.  It is good to get different perspectives on your reports and therefore seeking different peer reviewers from different agencies has merit.  Additionally, it is not recommended that you seek several peer reviews on the same report.  Peer review is an onerous task and peer reviewers are subject to being called to testify regarding your work.  Pick one competent peer reviewer for each report.  There is no need to overly complicate this process.

The obligations of the peer reviewer

Peer review is a serious responsibility.  A peer reviewer must be prepared to thoroughly review the expert report and answer the following questions:

• Is the report written in an organized, linear fashion with proper headings?
• Is the report understandable to the non-expert?  Remember that the intended audience for expert reports is primarily attorneys.  
• Have the appropriate images, tables, charts, etc. been included?
• Did the expert use the correct methodology?
• Has the data been appropriately analyzed?
• If applicable, is the math correct?
• Should more work be undertaken?  Further analysis?  Practical testing?
• Are the opinions or conclusions reached by the expert reasonable, justifiable and defensible?
• Are the appendices, if any, appropriate?
• Are there grammatical errors?

A peer reviewer must dedicate sufficient time to conduct a proper peer review.  Furthermore, a peer reviewer is obligated to provide meaningful feedback to the expert.  This should be provided in writing, in addition to any oral discussion that occurs between the reviewer and the expert.  Saying “Looks good to me!” is not sufficient.  

The Ontario Court of Appeal recently (May 2018) issued an important decision on the subject of peer reviews in R. v. Natsis, 2018 ONCA 425.  This was a case that dealt with a collision reconstruction expert who had sent his report to a more senior officer in his agency for peer review.  The report contained the expert’s analysis of a head-on collision in which the victim was killed.  At trial, the expert testified that in his opinion, the appellant had crossed the center line and had collided head-on with the victim.  At trial, it was the appellant’s position that she was on the correct side of the road and that the victim had crossed the center line.  Therefore, causation was a live issue.

Significantly, the expert report that had been peer reviewed concluded that the appellant was on the correct side of the road at the time of the collision, contrary to the expert’s trial testimony.  Additionally, the report was replete with other errors.  A further issue that arose was the fact that the version of the report that had been peer reviewed had not been preserved for disclosure.  The appellant argued that the Crown’s failure to disclose the report that had been sent for peer review violated s. 7 of the Charter of Rights.

The Court of Appeal agreed with the trial judge’s finding that the expert report that was sent for peer review should have been preserved and disclosed as it was relevant evidence.  The Court found that the final version of the report that was submitted for peer review was clearly disclosable.  As the Court noted:

29      This document was relevant for two reasons. First, it concluded with a finding that the appellant was on her own side of the road at the time of the accident. Second, the number of errors in the report cast doubt on the author’s competence, and the failure of a more senior accident investigator to catch the errors cast doubt on his competence.

The Court found that the Crown’s failure to disclose the peer reviewed expert report violated the appellant’s s. 7 Charter rights but further found that the failure to disclose could not have affected the reliability of the trial judge’s decision to convict the appellant or the fairness of the trial process.  The Court stated:

34      Here, both Kelly and Kern testified that Kern made no substantive changes to Kelly’s report. Documentation completed by Kern at the time of the review confirmed that he only made grammar, verb tense, and formatting changes. Kern does not appear to have undertaken an in-depth review of Kelly’s report. For example, Kern missed Kelly’s misstatement of his final conclusion when Kelly said the appellant was in her own lane at the time of the collision.

35      Defence counsel’s meticulous and exhaustive cross examination revealed all the weaknesses in Kelly’s and Kern’s evidence. The appellant suffered no harm from the failure to disclose Kelly’s final report submitted for peer review. The trial judge’s limitation of the scope of Kelly’s admissible expert evidence out of concern for his competence was sufficient to address any violation of the appellant’s right to disclosure of that report. The appropriate focus in most cases of late or insufficient disclosure under s. 24(1) is the “remediation of prejudice to the accused” and the “safeguarding of the integrity of the justice system”: R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651(S.C.C.), at para. 26.

36      I am not satisfied that the failure to disclose “impaired the right to make full answer and defence:” Stinchcombe, at p. 348. No further remedy is appropriate or just pursuant to s. 24(1) of the Charter.

What the Court of Appeal emphasized is that not only did the errors in the expert report reflect poorly on the competence of the expert, the failure of the peer reviewer to catch those errors cast doubt on his own competence.  This is why a peer reviewer must take this professional responsibility seriously.  

In some high profile cases, I have called the peer reviewer to testify about the work the expert witness undertook.  This is done to provide the trier of fact with an objective opinion about the work of the expert and to instill confidence in the methodology used and the opinions and conclusions reached.  In order to do this, the attorney first has to qualify the peer reviewer as an expert witness and must disclose in advance the details of the peer review.  Hence the need for the peer reviewer to properly document the peer review.  The peer review should be written with the expectation that courtroom testimony may be required.   

The obligations of the expert receiving the peer review

When a peer reviewer does not detect any substantive problems with the report and recommends only format or grammatical changes, the expert can simply incorporate those changes as appropriate.  When a peer reviewer makes critical comments and recommends changes regarding the methodology used by the expert and the soundness of the opinions or conclusions reached, the expert must give serious consideration to the peer reviewer’s feedback and decide what report changes, if any, are warranted.  A conversation with the peer reviewer might be needed to ensure that the expert fully understands the feedback.   

If the expert accepts the comments of the peer reviewer and makes the recommended changes, the report that was sent to the peer reviewer must be preserved in its original state as it is disclosable.  The expert must then make the necessary changes and must credit the peer reviewer in the expert report for the peer review.  On the witness stand, the expert will need to articulate what changes the peer reviewer recommended and how the expert dealt with those recommendations.  The expert should proceed on the basis that the peer reviewer could be called to testify by either party in the litigation.

If the expert chooses not to incorporate some or all of the recommended changes, that too must be documented.  It would be unusual for an expert to do this given that the peer reviewer should always be someone more knowledgeable and experienced than the expert, someone whose input is valued.  However, an expert is not required to accept the recommendations.  In such circumstances, the expert might expect to see the peer reviewer testifying at trial, for the opposite party.  To say this would be professionally uncomfortable would be an understatement.  The expert will need to be able to clearly and correctly delineate why he/she chose not to follow the recommendations of the peer reviewer.

Conclusion

Peer review is an important component of expert witness work, where the goal should always be to produce high quality reports and sound, defensible opinions.  Seeking the input of qualified, competent peer reviewers is essential.  Peer reviewers themselves must take this responsibility seriously and provide a meaningful review that is properly documented with the understanding that he/she may be required to testify as to review findings.  Not only must the author of the expert report seek out peer review, the feedback received must be considered and incorporated as required.