Category: Expert witness

More on the consequences of changing experts

geyre

In the recent case of Allen Todd Architecture Ltd v Capita Property & Infrastructure Ltd [2016] EWHC 2171 the claimant wished to substitute a new expert structural engineer, having lost confidence in the first such expert as a result of delays in production of the report. The claimant had disclosed to the defendant the letters of instruction and the original expert’s report but the defendant wanted the letter of instruction to the new expert and any report, document or correspondence with the original expert setting out that expert’s opinion, whether in draft or final form.

Although these additional documents are privileged, and although the judge did not regard the case of one of ‘expert shopping’ on the part of the claimant, the judge ordered disclosure of documents, such as draft and provisional reports and correspondence, containing the original expert’s opinion as a condition of granting permission to rely on the substitute expert.

From the authorities the judge derived the following principles:

(1)         The court has a wide and general power to exercise its discretion whether to impose terms when granting permission to a party to adduce expert opinion evidence: that is consistent with both the general way in which CPR rule 35.4 (1) is expressed, and the wide and general nature of the court’s case management powers, in particular those set out in CPR rules 3.1 (2) (m) and 3.1 (3) (a).

(2)         In exercising that power or discretion, the court may give permission for a party to rely on a second replacement expert, but such power or discretion is usually exercised on condition that the report of the first expert is disclosed.

(3)           Once the parties have engaged in a relevant pre-action protocol process, and an expert has prepared a report in the context of such process, that expert then owes a duty to the Court irrespective of his instruction by one of the parties, and accordingly there is no justification for not disclosing such a report.

(4)         While the court discourages the practice of ‘expert shopping’, the court’s power to exercise its discretion whether to impose terms when giving permission to a party to adduce expert opinion evidence arises irrespective of the occurrence of any ‘expert shopping’. It is a power to be exercised reasonably on a case-by-case basis, in each case having regard to all the circumstances of that particular case.  Where an expert had produced a report in the course or context of a relevant pre-action protocol process this was a critical or decisive factor, rather than there having been any instance of ‘expert shopping’.

(5)         The court will require strong evidence of ‘expert shopping’ before imposing a term that a party discloses other forms of document than the report of the original expert such as attendance notes and memoranda made by a party’s solicitor of his or her discussions with the original expert) as a condition of giving permission to rely on a substitute expert.

The judge went on to conclude that there was no difference in imposing a condition of disclosure of the previous Part 35 compliant report before granting permission for a substitute expert and requiring disclosure of any earlier draft of provisional report or other document produced by the original expert and containing the substance of the expert’s opinion on issues in the case.

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Probability and proof – the legal versus the medical – legal wins!

geyre

A recent illustration of the difference between proof in the legal and medical contexts was given in Bell v Ashford & St Peter’s Hospital NHS Trust (QBD 27 July 2016).

A patient had oesophageal cancer.  During an endoscopy the patient’s tumour was negligently perforated, causing serious infection and delaying chemotherapy to treat the tumour.  The patient subsequently was diagnosed with metastatic disease and died within 4 years.  Prior to the perforation, scans and tests had shown no sign of metastatic disease, no evidence of local or distant disease spread and no sign of lymphatic involvement.

The substantial claim for damages by the patient’s estate, based on the loss of a normal life expectancy following what it was alleged should have been ‘successful’ treatment for the cancer, depended on proof that the metastatic disease was caused by the perforation – that ‘but for’ the perforation, the metastatic disease would not have occurred and the patient would not have died.  In other words, the issue was one of causation.

The Trust argued that the patient probably had metastatic disease before the perforation so that the perforation made no difference with regard to that spread (although it was conceded that some damage – but no significant reduction of life expectancy – was suffered as a result of the delay in treatment caused by the infection).  For the patient’s estate, while the expert was unable to point to the definite mechanism by which the outpouring of tumour cells as a result of the perforation caused the recurrence and increased the risk of more distant spread, the expert considered it probable that it did do so.

The judge concluded that, while acknowledging that there was no scientific certainty on the issue, on the balance of probabilities the perforation did cause the metastatic disease and therefore did cause the patient’s premature death.  There was no evidence of metastatic disease prior to the perforation despite all appropriate investigations, and the perforation was therefore the probable cause.  The claimant had proved its case.

(To read more about the legal concept of causation, its application to claims for damages in injury claims and how the expert should report on it, the reader is referred to Chapter 6 of ‘Writing Medico-Legal Reports in Civil Claims – an essential guide’)

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