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  • Oct 7, 2021
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History of expert witnesses
The role of the ‘expert’ dates back many centuries, in fact the Roman Empire recognised midwives, handwriting experts and land surveyors as legal experts. With the codified use of expert witnesses and their use of testimony and scientific evidence, their involvement has developed significantly in the Western court system over the last 250 years. Lord Mansfield first introduced the act of allowing an expert to testify in court and provide opinionated evidence on the facts of other witnesses in the case of Folkes v Chadd in 1782, wherein a civil engineer provided scientific rationale relating to litigation over the silting of Wells Harbour in Norfolk. The decision by the English court to allow an expert to provide contextual background and detail on a case is often cited as the root of modern rules on expert testimony.

Role of expert witnesses
The role of the expert witness within the court system is to serve as an objective party in a lawsuit; the expert must not advocate for either party. In litigation cases the expert witness(es) are present to explain complicated scientific issues and not to influence the outcome. It is therefore vital that the expert witness has both significant and relevant background education and experience in the area for which their expert witness services are sought. The question that needs to be asked is whether expert evidence is required to resolve the proceedings.

Qualifications of expert witnesses in civil cases
The qualification of an expert witness to provide evidence in a trial is the responsibility of the court, based on the nature of the issue and the background education and experience of the expert. Subject to approval the court deems expert witnesses to be suitably qualified to speak on a topic and to provide background to the court decision maker, be that judge or jury. In the United Kingdom, and expert witness is qualified to give evidence where the court itself cannot form an opinion and where special study, skill or experience are required. As part of the qualification process expert witnesses must present a CV, provable work history and background supporting documentation of their suitability to provide evidence on the nature of the issue in the court.

In civil cases which is where most consumer product complaints fall, expert witnesses must also be intimately familiar with Part 35 of the Civil Procedure Rules, Practice Direction (PD35) and with the Civil Justice Council Guidance for the instruction of experts in civil claims. It is also useful for expert witnesses to have received training in report writing and cross examination techniques, and to have at least a basic understanding of civil law.

Duties of expert witnesses in civil cases
In England and Wales (slightly different in Scotland), under the Civil Procedure Rules, an expert witness is required to be independent and to address their report directly to the court. Experts charge a professional fee which is paid by the instructing party, although the report is addressed to the court.

Note that CPR states that the fee must not be contingent on the outcome of the case. In cases where there is a complainant and a defendant, both sides may source and retain their own expert witnesses.

Under the CPR, expert witnesses may be instructed to produce a joint statement detailing points of agreement and disagreement to assist the court. This meeting is held independently of instructing lawyers and often assists in the resolution of a case, especially if experts review and modify their opinions, and can also significantly reduce court costs. This can result in experts from each side being called to give evidence together in court, in a process colloquially known as ‘hot-tubbing’ but more correctly known as CEE – concurrent expert evidence.

Nowadays, as much to save time and cost as anything else, courts may order the instructing parties for the claimant and defendant in a civil case to decide and agree on a single expert, known as a Single Joint Expert. The SJE will prepare a report and give evidence as normal, and the evidence of the SJE will be largely pivotal in assisting the court to decide the outcome of a case. The use of a SJE is also useful in very specialised areas of business where availability of suitably qualified and experienced experts may be an issue.

Specifics of consumer product complaints
Specifically for a consumer product complaint the approach to an expert witness is usually in the form of a disgruntled telephone call or email from a domestic consumer, complaining about some issue with their product. The first job of the expert witness is to delve to the background of the complaint to see if a) expert witness work is even required and b) whether the expert has the necessary education and experience to be involved. Option a) is not always as easy as it might appear because no expert worth their reputation would involve themselves in an issue where they did not think that they could be of practical use. This is often where emotions come into play i.e. the consumer may have been so upset by the actions of a staff member when a complaint is made to a retailer, that they are determined to drag the issue to court. It is incumbent on the expert to cut to the crux of the issue and to advise the consumer accordingly.

Assuming that the requirements of options a) and b) above are satisfied then the expert witness still has incumbent responsibilities due to the consumer as good practice. These include:
• Assessing the specifics of the case and as much background information as can be provided and then, without crossing the line into giving binding legal advice for which the expert is not qualified, hypothesising to the consumer the likely chances of a case being successful. In a lot of cases the heart rules the head and a consumer is determined to take on an action that has so little chance of success as to be unfeasible
• Providing a cost estimate to the consumer and making it clear at the outset that this cost is their responsibility at the outset, see later comments on expert advisors.
• Making sure that the consumer knows that it is very possible that their product will be irretrievably destroyed by any testing required to support the expert witness report, so there will be a replacement cost of the item if the case is not successful
• Discussing the distinction between expert advisor work and expert witness work, and discussing the potential ramifications of the expert advisor approach

Expert advisors and expert witnesses
In the majority of consumer product complaints, the court is not involved at the outset because preparatory work needs to be done before this stage is reached. Therefore it is rare for an expert witness, in the true sense of the definition, to be appointed directly by the court at the outset. Exceptions are where expert witness input is required in high cost cases, cases involving the testing of product against direct legislation and cases where there is a direct effect on safety. A good example of this would be the sudden rush of UK health bodies to purchase large stocks of PPE for protection of healthcare staff against Covid-19. In far too many cases this rush lead to product being sourced from unaccredited suppliers, often in the Far East, leading to product being supplied that was patently unsuitable for its purpose. As PPE is governed by the PPE Regulation (EU) 2016/425, direct cases could be brought against the suppliers and for this expert witness input was required – to prove or disprove acceptable performance and to comment as to the suitability of the product against the PPE Regulation.

Far more often in consumer product complaints the initial contact is by the consumer to the expert, often by as simple a means of looking up suitable experts on the Internet. If the consumer, having been made aware of the legal distinction and potential ramifications, still commissions the expert to prepare a report based solely on their side of the case i.e. their interpretations of the product, this becomes an expert advisor report.

The distinction to remember is that expert witnesses are commissioned by the court and expert advisors are commissioned by one side of the argument i.e. the Claimant or Defendant or the solicitors for either.

Should an expert advisor report be favourable to a consumer and a legal case follow, it is quite admissible if not even helpful, for the expert advisor report to be presented as evidence at the outset. The court can then decide whether to:
•  Dismiss the expert advisor report entirely, as being presumptuous to the issues at stake
• Accept the expert advisor report as the only expert evidence required in the case without recourse to the party who didn’t commission the report (unlikely)
• Discuss and suggest that the expert advisor report is taken as the only expert evidence required in the case, but giving the party who didn’t commission the report the option of appointing their own expert to review the report and to ask expert questions which then must be answered by the report author
•  Allow the party who didn’t commission the report to commission their own expert advisor to prepare their own report entirely separately
• Commission a Single Joint Expert to prepare a single expert witness report which is then taken as the only expert evidence in the case

In real life often the approach taken is a compromise of the above i.e. the court appoint a SJE who is actually the expert advisor first appointed. The expert has his report reviewed by the non-commissioning party and questions are answered and possibly viewpoints changed. Then the original report is amended, rewritten in expert witness format and submitted directly to the court.

In terms of costs, note that the court will decide who is paying the expert witness, split between both parties if an SJE is appointed. If an expert advisor is appointed then the costs are borne by the consumer or the solicitors for the consumer, whichever is applicable. Hence there is a certain risk in paying for an expert advisor report if the case is then unsuccessful.

The actual investigation of the product
The following applies whether the work is being done as a court appointed expert witness or as individual appointed expert advisor.

The expert defines which of the “six and six” rules applies. Under consumer product legislation, if a product has been supplied for a period of six months or less (note this means supplied, not necessarily used) and in some way ‘fails’ it is the legal responsibility of the supplier/retailer to prove that the product was of acceptable quality when it was supplied. If the product has been supplied for a period between six months and six years then it is the responsibility of the consumer to prove that it has somehow ‘failed’ during that time. For products in use for over six years, in all but extreme cases no court case can be brought in respect of product performance. Consider the issues that this six-and-six rule gives for potential expert work:
• If a product is unboxed immediately after purchase and is obviously broken or doesn’t work then this is a pretty obvious complaint and would usually be settled by the supplier/retailer without argument
• If a product is considered as working but the consumer considers there to be an issue that they are not happy with, then this is more of an issue under sale of goods and services legislation where the expert cannot really get involved. An example would be a chair which is physically intact and able to be sat upon but the upholstery is untidy, the fabric stretched, the riveting uneven etc. The consumer may not like the look of it but at the end of the day it is still a working chair. In these cases expert evidence is difficult and often requires a definition as to whether a product is ‘first quality’ or not
• If a product exhibits a latent issue which is not obvious at time of purchase or perhaps through the first six months of use but then becomes obvious as time progresses. Examples would be such as fading of colour of household textiles, upholstery surfaces becoming threadbare and textiles subjected to washing changing shape and becoming physically weaker

Assessment of product performance
Consumer product legislation, primarily the Consumer Rights Act and the General Product Safety Directive, but with many other satellite documents, requires all products placed on the EU/UK market to be safe and fit for purpose, and provides information on how the performance and safety of products should be assessed. According to legislation, product performance and safety may be assessed by reference to the following official documents, listed in order of significance:
• Specific EU Regulations and Directives
• National Regulations
•  European standards which have had their references published in the Official Journal of the European Union
• Other European standards and International standards
•  Community technical specifications, national standards (i.e. national standards that are not versions of European standards)
• Industry codes of good practice, European technical reports (TR)
• State of the art and technology
• The performance and safety which consumers may reasonably expect

When designing a product it is essential to take into consideration the behaviour of intended user of the product, and to attempt to pre-empt reasonably foreseeable conditions of use. A good example is when a product is designed for, or may reasonably be expected to come into contact with, children, whose need for exploration and challenge drives them to use items in new and different ways. One common factor children share is that they are unaware of cause and effect and are therefore substantially less cautious than adults in relation to hazards.

It is also important that the products are supplied with correct labelling, markings, packaging and instructions for use, to enable the product to be used safely. The Office for Product Safety and Standards publishes a useful guide to the GPSD which simplifies the requirements of the Directive and gives examples of scenarios.

The experts first job is to decide which of the above list of criteria are going to be used as the basis for the investigation, and this is where the experts skill and judgement come into play. If there are specific document(s) which state the performance requirements for a product in simple quantifiable terms then it is simple to perform these assessments and make a judgement as to whether the product passes or fails.

If however, there is no such performance requirement for a product then the expert must use judgement as to the performance that the consumer may reasonably expect. It is for precisely this sort of judgement that expert work, whether as advisor or witness, is valuable because neither the individual nor the court may have the relevant experience to make such a judgement.

The expert does any required research and then performs such assessments, testing, replicative scenarios etc as are required for a judgement to be made as to whether the product achieves the performance that the consumer may reasonably expect.

The report is then written in the correct format whether it is an expert witness or expert advisor report, which necessarily includes:
•  details of the parties involved
• the experts qualifications and experience to enable him to write the report and be considered as expert
• background information as to the substance of the complaint
• details of the nature of the product supplied
•  details of expert research undertaken
• details of assessments, tests and replicative scenarios undertaken
• a series of comments, conclusions, opinions and interpretations of the expert taking into account the facts of the case, the issues addressed, the samples supplied and the tests undertaken
•  legally correct clauses and statements
•  a signature and date

At this stage the report is submitted, either directly to the court or to the commissioning party. After a suitable period for review, questions may be asked regarding the report which the expert is bound to consider and answer and to amend and reissue the report if necessary.

The final potential involvement is for an experts report to be questioned in court, requiring the expert to be cross-examined. This is a far more likely scenario in criminal cases than in civil cases, in civil cases the whole point of the expert report is to act as an aid to allow the judge to resolve the case without the need for further questioning. In small claims court actions the requirement for an expert to need to attend court is actively discouraged.

Ian Strudwick is Technical Textiles Specialist at Shirley Technologies Limited. At Shirley Ian has responsibility for the services in respect of complaint investigation, product fault analysis and dispute resolution. To this end Ian is a qualified Expert Witness to the Cardiff University Business School programme sponsored by Bond Solon. As Technical Textiles Specialist, one of Ian’s primary responsibilities is provision of technical support, expertise and response to operational, technical and legislative queries for clients as well as product/test development and investigative work incorporating the whole range of testing operations that Shirley offer. Ian is a Chartered Fellow of the Textile Institute, holds BSc, HNC and ONC qualifications in Textile Technology and is a technical expert with opinions and interpretations accredited by UKAS to ISO 17025. He is Chair of British Standard committee TCI/81 dealing with issues relating to colour fastness and colour measurement standardisation and sits on numerous other BSI committees, as well as representing the UK on numerous ISO committees and working groups dealing with textile standardisation. Ian is also Shirley representative to UKTLF, SDC, TSI, TI, AATCC, EWI, RSM, ASBCI and other industry bodies.