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‘Hot-Tubbing’: A Cool Approach to Divergent Expert Opinions

‘Hot-tubbing’ (also known as ‘concurrent evidence’) is a practice that has become popular in Australian courts and has recently been adopted by English courts and only very recently by Canadian courts (Antonia Croake and Louise Mallon, Commercial Litigation Newsletter, October 2013 ; Ruth Corbin, Advocates Journal Spring 2014).  The technique of ‘hot-tubbing’ allows experts to testify in court or at a hearing together on a panel rather than one after the other.  The approach has only just begun to be used in Canadian courts (Apotex v AstraZeneca, 2012 FC 559) and may be more relevant to trials in which complex technical issues are being addressed.  Although in testamentary capacity disputes there are usually only two experts involved, the same approach may apply.

Hot-tubbing highlights the spirit of the Rules of Civil Procedure whereby experts are expected to assist the court and not function as advocates for the side that has retained them.  This approach is contemplated in the Ontario Estates List Practice Direction, paragraph 46 (J) and includes: “….. the utility of a pre-hearing meeting between experts to narrow the issues of dispute”.  This derives from the Ontario Rules of Civil Procedure which indicate that the court may order experts “to meet to identify areas of agreement/disagreement and to prepare a joint statement with areas of agreement/disagreement.

There are both proponents and detractors of this approach, but the essential argument in favour is that ‘hot-tubbing’ is an effective method of getting to the core issues in dispute, thereby saving time at trial and making it easier for the court to compare contrasting evidence.  It remains to be seen whether Canada is cool enough to employ ‘hot tubbing’ and evaluate this innovative approach to medical expert evidence. The term itself is unfortunate as the image of ‘senior’ experts in a hot-tub is enough to make anyone cringe (John O’Sullivan, Slaw, 2011).

About Dr. Ken Shulman
Dr. Shulman graduated from the Faculty of Medicine, University of Toronto in 1973 and did postgraduate training in Psychiatry at the University of Toronto. He then went on to do specialty training in Geriatric Psychiatry in London, England. Since 1978, he has been based at Sunnybrook Health Sciences Centre, University of Toronto. He is the inaugural recipient of the Richard Lewar Chair in Geriatric Psychiatry at Sunnybrook Health Sciences Centre, University of Toronto. Currently, he is the Chief of the Brain Sciences Program at Sunnybrook. Dr. Shulman has had a longstanding interest in the issue of testamentary capacity and vulnerability to undue influence and has been qualified as an expert witness in Estate matters in Ontario and Alberta. Together with colleagues he has published several papers in the area of testamentary capacity in international journals and is a frequent presenter at legal continuing education conferences on Estates and Trusts. Email: