How wrong can an expert be?

Hot on the heels of the last blog, another disaster in court is reported for an expert who surely should have known better.

In Thimmaya v Lancashire NHS Foundation Trust and Jamil (Manchester County Court 30/1/20) the expert was required to pay the costs of most of the litigation in a clinical negligence claim in which he was instructed on behalf of the claimant, arising from his ‘improper, unreasonable or negligent conduct’.  Those costs amounted to £88,801.68 (plus the costs of the application to obtain that ruling).

What did the expert do wrong?  At trial, in cross-examination he was unable to articulate the test to be applied in determining breach of duty in a clinical negligence case.  He could not recall the Bolam/Bolitho test.  And yet that was the legal test he was being asked to address in giving his opinion on the matter which was being litigated.  That failure was previously hinted at by his reference in the joint statement to ‘best practice’ which is of course of no direct relevance when assessing whether the actions or inactions of a doctor are negligent.

Faced with that inability on the part of her expert at a crucial moment in the trial, the claimant had to abandon her claim as she could not, on this evidence, prove negligence.

The expert had himself only carried out the surgery in question on two occasions.  That was held not necessarily to be fatal to his acting as an expert as he had been involved in treating a lot of patients recovering from the procedure.  As the judge said ‘there are plenty of not very good experts about’ and they are not all at risk of paying costs.

His reports were found to be ‘not particularly well written, nor well argued’.  That is not in itself fatal, but of course raises questions as to the expert’s overall competence, and had prompted his solicitors to ask him to confirm his suitability to report.

Due to mental health problems the expert had taken sick leave from his clinical practice, but he continued his medico-legal practice for a period, which included his becoming involved in this litigation, and he did not inform the claimant or her advisers of his medical condition.  However sympathetic one might be on a personal level, professionally the situation was clear (as events proved) in that the expert should have taken leave from all practice.

Learning points:

  1. An expert witness must know and apply accurately the appropriate legal tests when providing an opinion and subsequently giving evidence in court. Nothing short of that will do.
  2. An expert witness is likely to be challenged over their expertise to provide an opinion if they have only very limited personal experience of the matter on which they provide an opinion.
  3. An expert report must be clearly written and provide properly reasoned opinions based on identified facts.
  4. An expert witness must inform the instructing party if any issues arise which might impact on their ability to give reliable evidence, including ill health and judicial criticism in court.

[Who or what is medico-legal minder?  Terms and conditions apply]

The expert witness’s duty

A somewhat skewed take on the expert’s duty was displayed by the expert in Pepe’s Piri Piri Ltd v Junaid [2019] EWHC 2097 (QB).  He recognised that his ultimate duty was to the court but also asserted that where he was instructed by a particular party then he would do the best that he could to present that party’s case in the most favourable light.  As the judge observed, that approach was not consistent with the duties of an expert under Part 35 of the CPR.  It is no part of an expert’s role when instructed in litigation ‘to present the party’s case in the most favourable light’.  The expert must present evidence as in independent expert and uninfluenced by the pressures of litigation.  His evidence should be the same whichever side he is instructed on behalf of.

The expert had slipped into the role of an advocate for the party instructing him.  He provided a critique of the other side’s action and in doing so introduced matters outside his area of expertise.

The consequence was that little weight could be put on the expert’s evidence at any point where he was in conflict with the other side’s expert, who had not erred in this manner.

It is extraordinary that expert witnesses should still fall into these errors.  A basic reading of the Rules, Practice Directions and the Guidance for the Instruction of Experts in Civil Claims, let alone any training they may have received, would leave no room for confusion.  Medical experts can gain a little comfort from the fact that this was an accounting expert being criticised on this occasion!

[Who or what is medico-legal minder?  Terms and conditions apply]