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A Truly Expert Witness
- Nov 17, 2021
- Latest Journal
by Flora McCabe, Head of Advocacy and Risk Management in Lockton LLP’s Healthcare Practice
“There is a worrying trend generally which seems to be developing in terms of failures by experts generally in litigation complying with their duties. Practice Direction 35 makes the position very clear.” This was the damning analysis of the Honourable Mr Justice Fraser earlier this year, in Beattie Passive Norse Ltd v Canham Consulting Ltd (2021). Far from being an idiosyncratic viewpoint, Justice Fraser’s stance is representative of some very real concerns about the quality of experts being appointed, their knowledge of their role, and the extent to which their instructing lawyers are educating them properly.
This article seeks, largely through a roundup of key expert evidence – related cases, to:
1. Remind experts of their major duties;
2. Explore some of the failings of expert evidence over the past couple of years;
3. Understand the consequences of experts making errors;
4. Suggest how to avoid repeating these mistakes; and 5. Review the insurance available.
Expert duties
It is all too easy to get swept up in the drama and pace of litigation, particularly where a defendant and / or their legal team are determined to win at any cost. A good expert must do all they can to resist what at best can be infectious over enthusiasm and at worse overt pressure to take a certain stance, and instead ensure that they are adhering to their duties, which are clearly stipulated in the Civil Procedure Rules (“CPR”). The Practice Direction which accompanies CPR 35 – the specific rules governing expert evidence and behaviour – makes it crystal clear that:
• Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation and that the expert's overriding duty is to the court and that this overrides any duty to his or her client.
• Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate
• Experts must consider all material facts including those which might detract from their opinions
• Experts must make it clear when a matter falls outside their sphere of expertise and / or they are unable to reach a definitive opinion
• Experts must make it clear immediately to the Court if they change their opinion on any material matter
• Experts must make it clear which of the facts relied on in a report are within the expert’s own knowledge
The above likely sounds basic and intuitive but putting it into practice is much harder than initially appears, as is clear from a detailed examination of two different cases below.
Examples where experts have failed and why
The tragic case of Z v (1) University Hospitals Plymouth NHS Trust, (2) RS (& Others (December 2020) related to a Claimant who had severe and irreversible brain damage following cardiac arrest in November 2020.
Here, the Claimant was moving from a state of coma to a vegetative state, with a 10-20% chance that he might progress to a minimally conscious state (MCS) minus. There was disagreement as to what action to take between the Claimant’s wife (who said that he would not want to be kept alive if he could not be helped) and his birth family (who maintained that his strong Catholic faith would mean that the sanctity of life would prevail over all other considerations).
Following the Court’s declaration that it was not in the Claimant’s best interests to be given life sustaining medical treatment, including nutrition and hydration, and that treatment could be lawfully withdrawn, there was a further application by his birth family, led by his niece, for three declarations, the first of which was that they would be allowed to rely on the evidence of Dr. P (the expert who was heavily criticised by the Judge). Whilst the Judge admitted Dr.P’s report and allowed him to give oral evidence, the Judge concluded that he “did not think [he could] place any weight on [the expert’s] evidence” for the family. This is because the expert:
(i) had read none of the patient records;
(ii) had not seen the reports of the expert called by the Official Solicitor, or of the treating doctors, until just before giving evidence, at which point he saw only 1 out of the 6 available documents;
(iii) had not spoken to the treating team, nor seen the MRI, the EEGs or any other scans;
(iv) had not read any of the court judgements in the case or any of the case papers;
(v) had relied solely on the word of the Claimant’s niece, without any corroboration, on the issue of the Claimant’s reaction when his birth family attended;
(vi) had relied on an unstructured series of exercises, carried out by the birth family on their visit, which he said demonstrated that the Claimant was able to respond to instruction; there was an imbalance of evidence here, because he had kept no records of how often the Claimant did not respond to instruction;
(vii) in his oral evidence, he was “untroubled by any of these deficiencies”.
Overall then, the expert concerned was woefully under-prepared, failed to interrogate his sources or indeed consider the salient document and, as a result, was unsurprisingly deemed unreliable and inconsistent in his oral evidence. Such performance made a mockery of proceedings and will have added to the pain and suffering experienced by all parties, as well as contributing significantly to the stress of being involved in this sort of case and creating unnecessary further financial burden. Just as in many other walks of life, there is no replacement for thorough reviews of all documents and good preparation; you owe this to your clients at the very least. And tackle your legal team if you believe they have not provided you with all the information you would expect to see.
Next, we turn to a case from earlier this year, Dana UK Axle Ltd v Freudenberg FST Gmbh [2021] EWHC 1413 (TCC) Joanna Smith J excluded, during the trial itself, the entirety of the defendant's technical expert evidence due to "the full and startling extent of the Experts' breaches of CPR 35". This was a claim arising out of the alleged premature failure of pinion seals manufactured by FST and supplied to Dana, a manufacturer and supplier of automotive parts. On Day 7 of the trial, Dana applied to exclude FST’s technical expert evidence. The Judge agreed:
• FST had failed, in breach of a PTR order, to provide full details of all the materials provided to the experts, whether by FST or its lawyers.
• There was no detail of any factual information provided orally by FST and no list of all the documents which had been provided to the experts.
• “the experts had unfettered and unsupervised access to the Defendant’s personnel” and were provided with information by FST during calls and virtual meetings. However, there was no record of any of these calls or meetings.
As anyone involved in any profession should be aware, attendance notes and good record keeping are non- negotiable. The concern here was that FST experts were seeking (and receiving) guidance and approval from FST’s in-house technical team on the content of their reports, which went beyond contact limited to providing logistical assistance. The absence of notes around the nature of their contact meant there was nothing to prove the contrary. The Judge made it very clear that:
“It is essential for the Court to understand what information and instructions have been provided to each side’s experts, not least so that it can be clear as to whether the experts are operating on the basis of the same information and thus on a level playing field. Experts should be focussed on the need to ensure that information received by them has also been made available to their opposite numbers.”
Where experts liaise directly with their clients to obtain information which is not recorded: “there can be no transparency around the information to which they have been privy and no equality of arms with their opposing experts of like discipline.”
The Judge also said that it was: “entirely unacceptable for Dana and the Court to discover, during the course of the trial, that FST’s experts had not only engaged in site visits about which they did not inform Dana’s experts at the time and, in respect of which, they have apparently kept no records, but also that there were, in fact, more site visits than had previously been disclosed in their reports.”
The Judge was not only damning of the experts but of their legal team:
“The establishment of a level playing field in cases involving experts requires careful oversight and control on the part of the lawyers instructing those experts; all the more so in cases involving experts from other jurisdictions who may not be familiar with the rules that apply in this jurisdiction. For reasons which have not been explained, there has been no such oversight or control over the experts in this case.”
This is therefore a reminder to all experts that your lawyers should be giving you appropriate guidance on your duties to the Court; if they do not then you should speak up. They should also be instructing you in a timely fashion, making you aware of relevant deadlines, providing you with all documentation rather than cherry picking and remaining objective in their instructions to you. Please challenge them if not and make it very clear if you feel remotely uncomfortable with any task you are being asked to perform. It seems very pertinent to conclude this section with the Judge’s resounding reminder of what a privilege it is to be given the role of an expert witness, and how your actions have a direct impact on the operation of the justice system in this country:
“The provision of expert evidence is a matter of permission from the Court, not an absolute right (see CPR 35.4(1)) and such permission presupposes compliance in all material respects with the rules ... the use of experts only works when everyone plays by the same rules. If those rules are flouted, the level playing field abandoned and the need for transparency ignored, as has occurred in this case, then the fair administration of justice is put directly at risk.”
The Consequences of failure to adhere to rules
Few cases illustrate more aptly the severe consequences of failing to adhere to an expert’s duties than Liverpool Victoria Insurance v Khan [2019] EWCA Civ 392,[2019] 1 WLR 3833, on appeal from [2018] EWHC2581. This is a particularly horrifying example of deep seated failings by an expert and their legal team. The case relates to a personal injury matter where the Claimant was involved in a road traffic accident in December 2011. The GP expert had a thriving private practice in medico-legal work, conducted at various locations. This practice involved frequent examination of claimants in low-value personal injury claims. He produced around 5,000 reports a year. He assessed the Claimant for a medico-legal report about ten weeks after the accident.
The report stated that whiplash symptoms had subsided by the time of the assessment, and that the Claimant had fully recovered from the injuries sustained in the accident. The Claimant informed his solicitor that he was unhappy with the prognosis set out in the report because he had ongoing symptoms of neck, shoulder and wrist pain. At the request of the solicitor, the GP produced an amended report without further examining the Claimant, and apparently relying on notes which had been incorporated in the original report. The revised report bore the same date as the original and gave no indication that there had been a previous report or any revisions made. However, it differed very significantly, as it stated that some painful symptoms had not yet improved, and that the prognosis was that pain and stiffness in wrist, neck and shoulder would fully resolve within 6 to 8 months from the date of the accident.
The fact that the report had been revised only came to light when, in error, the Claimant’s solicitor included the original report in the trial bundle. The trial was adjourned and four years later the insurers pursued the GP for contempt of court. The judge found that ten out of 14 grounds alleged against the doctor had been proved to the criminal standard and that his conduct went beyond negligence when it came to altering the prognosis between the first and revised report.
Particularly pertinent for the readership of this article is the gravity placed by the Court on the fact that the GP expert had signed a statement of truth – which all experts are required to do upon completion of an expert report – verifying what in fact was a report containing untruths. The Court reminded us that: ‘contempt of court involving a false statement verified by a statement of truth ... is always serious, because it undermines the administration of justice’.
Crucially for this readership, the Court does not distinguish between intentional and reckless statements: experts will ‘usually’ be ‘almost as culpable’ for making false statements ‘recklessly’ as they would be for making statements ‘intentionally’:
“To abuse the trust placed in an expert witness by putting forward a statement which is in fact false, not caring whether it be true or not, is usually almost as serious a contempt of court as telling a deliberate lie."
Applying this ‘inflexible rule’, they reasoned that ‘the deliberate or reckless making of a false statement in a document verified by a statement of truth will usually be so inherently serious that nothing other than an order for committal to prison will be sufficient’.”
It is helpful to set out the Judge’s reasoning in full:
‘In the present case, the inherent seriousness of the Respondent’s conduct in contempt of court – in particular, in the putting forward of the revised report as if it represented the Respondent’s honest and independent opinion based upon his own examination of Mr Iqbal - was aggravated by a number of factors. First, the judge found it to have been motivated initially by a desire to keep his report-writing factory running at full capacity. The Respondent was, therefore, at least indirectly motivated by a concern for financial profit. Secondly, the Respondent persisted in the conduct which constituted his contempt of court, putting forward false statements on three different occasions. Thirdly, on one of those occasions he acted with deliberate dishonesty. Fourthly, he sought on that occasion to cast the blame for his own misconduct on someone else. Fifthly, although he did not maintain that deliberate untruth for very long, he thereafter recklessly put forward another explanation which was also untrue. Sixthly, having regard to the terms of his declarations and his statement of truth, we are bound to say that we think that the recklessness which the judge found came close to the borderline between reckless and dishonesty.
We accept that there were a number of matters in the Respondent’s favour, to which some weight had to be given. It seems to us, however, that the judge gave disproportionate weight to one of them, namely the fact that in most respects the misconduct was reckless rather than intentional: for the reasons we have given, there was in the circumstances of this case little difference in culpability between those two states of mind. It also seems to us that disproportionate weight was given to what was referred to as delay, the majority of the passage of time being attributable to the Respondent’s choice to contest the proceedings throughout. The disproportionate weight which he gave to those considerations contributed, in our view, to his passing a sentence which was so lenient as to fall outside the range reasonably available to him. The judge did not identify any powerful factor or combination of factors in favour of suspension’.
Key learning points from this Judgment therefore include the fact that if you make any form of reckless or untrue statement, it can not only derail the entire case, and have a myriad of unpleasant consequences for the clients involved, including extreme personal financial penalties such as third party costs orders, but it can also result in a criminal sentence. Accepting expert instructions should therefore never be taken lightly, and you need to ensure that you are fully cognisant of your obligations at all times and have them fully in mind when you sign your statement of truth. At best inconsistencies in your oral evidence, failure to be objective and failing to prepare will result in your client losing the case, a bad case to enter or remain in existence, wasting time, effort and money and at worst you could compromise your entire professional career and personal life.
One would have hoped that these lessons would have been learnt, but as little as ten days ago, Judgment was handed down in Robinson -v- (1) An NHS Trust and (2) Dr Mercier. The case related to an extraction performed under general anaesthetic by a maxillofacial surgeon. Here, for only the second time in a clinical negligence case, a third-party costs order was obtained against Dr Mercier, a general dental practitioner, who had acted as an expert witness for the Claimant. He is now required to pay £50,543.85, representing the costs that were incurred as a consequence of his advice.
His failings were as follows: at trial, Dr Mercier conceded that he did not have any experience of performing an extraction under general anaesthetic over the last 20 years, had no experience of consenting a patient for extraction under general anaesthetic and that he was not as well placed as the Defendant’s expert witness (a consultant maxillofacial surgeon) to comment on the case. The Claimant discontinued her claim during the trial, following Dr Mercier’s evidence.
The Judge held that Dr Mercier had flagrantly disregarded his duties to the Court by giving a report on a subject matter in which he had no expertise. The punishment of having to find over £50,000 from his own pocket / his indemnity provider may seem grave but sends a much needed warning shot across the bows of all those who accept instruction without adequate thought.
How to avoid making errors
Firstly, start as you mean to go on and ensure you have the basics right. In practice, this means:
• A CV that accurately reflects experience and is neither over long nor out of date
• Prove your independence and that you have no theories or practices you are especially wedded to
• Ensure when you accept an instruction that you were in practice at the time in question
• Confirm that you have expertise / experience / qualifications in the relevant field; simply do not accept instructions which put you in difficulty because you are not well qualified or knowledgeable enough to deal with them.
The Robinson case mentioned above encapsulates the need for experts to report strictly within their own area of expertise, both in terms of specialty and also having regard to their contemporaneous practice.
Secondly, set out the relevant legal tests at the outset and ensure you have an excellent understanding of the law. Whilst it is crucial that you do not set yourself up as a lawyer or try to make legalistic submissions, you need to ensure that you are looking at the case in front of you through the correct lens. You therefore should complete and refresh regularly your expert witness training, and also ask your legal team to provide you with an unadulterated and objective document setting out the standards required of you. Thimmaya v Lancashire NHSFT + Jamil (30 January 2020), heard last year, illustrates the consequences where an expert is cross examined and cannot explain the legal test in question – the Bolam test in this instance, in the course of a clinical negligence matter. Very sadly, the expert in question’s understanding was impaired by mental health issues that he was struggling with. As such, he should have ceased acceptance of medicolegal work, and it was ruled improper, unreasonable, negligent to have persisted. This resulted in a third party costs order of £88,000 being made in Defendant’s favour against the Claimant’s expert.
Thirdly, ensure your report is top quality!
• Get dates / quotations right
• Be up-to-date
• Aim for balance in approach
• Defer to those in other fields where appropriate
• Sensible citation of literature
• Don’t go overboard in volume of literature
• Be relevant
• Ask yourself “what are the key issues for the judge to decide in this case at trial?”
Your legal team should be assisting with checking all these points and, as discussed in Griffiths -v- TUI UK Limited [2020] EWHC 2268 (QB) only a couple of days ago - they should really interrogate your evidence, pointing out lacunae, in order to ensure that you are in fact able to properly substantiate your comments.
Fourthly, ensure you do not ignore things or blow things out of proportion. In a Technology and Construction Court case of 2017 the Judge was highly critical of ICI's experts, condemning the evidence given by one expert during cross examination as "...not the sort of evidence one would expect from a wholly impartial independent expert witness." (Imperial Chemicals Industries Limited v Merit Merrell Technology Limited).
He went on to say "On all matters where the experts for the two parties hold different views, I prefer the evidence of [Merit's expert]...I find his evidence to be wholly impartial and his independence to be uncompromised. His conclusions were sensible and did not seek to advance the case of the party instructing him. The same, regrettably, could not be said of [ICI’s two experts].”
This entails:
• Taking a realistic approach to the facts of the claim
• Dealing with both / all versions of the facts;
• Not ignoring difficulties (e.g. in the medical records);
• Being very aware that the judge is the arbiter of fact;
• Not being railroaded by your opposite number;
• Having concrete examples / literature to back up viewpoint;
• Returning for further discussion another day if need be;
• Not being over the top or overly passionate or spirited in your arguments.
Fifthly, ensure you make a proper effort in the production of the joint statement:
• Consider taking the initiative in recording the discussions;
• Give detailed reasons for opinions expressed;
• Make concessions if appropriate (but explain your reasoning). A salient lesson on this point is set out in more detail in the section on expert indemnity and the case of Jones v Kaney.
Finally, should you be one of the few to be privileged enough to attend a Trial then please ensure that you:
• Are a team player;
• Know the papers / issues / medical records;
• Know the literature;
• Listen properly to questions;
• Maintain equilibrium (especially with the judge);
• Work out what the judge wants / likes;
• Don’t attempt to be an advocate.
Arksey v Cambridge University Hospitals NHS Foundation Trust [2019] is an excellent example of where an expert was caught out in this manner at the Oral evidence stage, which was found “unimpressive”. The Judge opined that: “there was a failure on his part to address the questions that he was being asked: I had no doubt, that this was a deliberate ploy on his part to avoid answering the questions, rather than any kind of misunderstanding on his part as to what he was being asked, and the technique was adopted by him because of the difficulty he found himself in, in addressing the questions”.
Expert Indemnity
In Jones v Kaney [2011] UKSC 13, Stanton v Callaghan [1998] 4 All ER 961, the Supreme Court overturned 400 years of practice and held that a party can sue their own expert witness for negligence in the litigation. What began as a relatively standard personal injury case following a road traffic accident developed into something far more dramatic. Here, Dr K, a clinical psychologist, was called as an Expert Witness to determine whether or not the Claimant was suffering from post-traumatic stress disorder. Dr K originally supported Jones in his claim but then signed a joint statement that failed to accurately record her views and the discussions held between the experts because she felt under pressure to accede to the views of her opposite number. The joint statement was damaging to Mr Jones’ claim and resulted in the matter settling on unfavourable terms. Mr Jones issued proceedings against Dr Kaney seeking damages on the basis that his claim settled at an undervalue as a result of her actions.
Whilst such risks for parties and experts alike can be avoided by following the advice within this article, and for parties to avoid the temptation to put pressure on their expert, there may still be situations where you end up requiring support in the event of a claim against you. In such circumstances, it is crucial that you hold appropriate insurance in the event that you are brought into a complaint or claim.
Lockton offer comprehensive cover for those who do expert witness work. Lockton is one of the leading advisors on professional indemnity insurance. We have unparalleled knowledge of the coverage available under professional indemnity insurance policies, and strong relationships with a wide array of top professional indemnity providers. But our expertise does not stop with insurance. We make it our business to understand the specific risks and challenges inherent in your specific area of expert witness practice.
Armed with this knowledge, you can count on Lockton to provide specialised risk management advice, assistance, and insurance to you as our client, including audits and advice on past reports you have produced. The expert witnesses professional indemnity insurance policy protects the policyholder against claims made against them in respect of their legal liability for losses arising from a breach of professional duty. The limit of indemnity available varies, and will be determined by the exposures you face in your business which will include considerations such as the volume of cases you take on, their complexity and value. Feeding into that, and the premium decision will be the likelihood of you facing a claim and any relevant claims history.
Typical limits of indemnity range from £100,000 to £5,000,000 with higher limits available on request.
Hopefully, from both your perspective and that of your clients, you will never face a claim, but if you do, it will give you significant peace of mind to know that you hold adequate indemnity
About the author:
Flora McCabe is Head of Advocacy and Risk Management in Lockton LLP’s Healthcare Practice and specialises in defending medical practitioners and healthcare organisations when they face claims and complaints. Her team offer specialist indemnity cover for doctors, dentists and healthcare corporates including:
• 10m plus limits adjustable to your specific needs
• 21 years or more run-off
• Legal expenses
• 24 hour medico legal helpline
• Public liability cover for injury to people at your work place
• Worldwide cover for Good Samaritans Acts
• Claims made or claims occurring cover depending on the profession
Lockton LLP more widely offer indemnity across all sectors and practices.
