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A cautionary case.

One party’s expert was heavily criticised:

(a) for failing to disclose a connection with the party by whom he was instructed; and

(b) for failing to draw a major problem in other expert evidence to the attention of those instructing him.

The evidence could have been, and nearly was, ruled inadmissible. In the event the judge allowed the evidence in but placed very little weight upon it. The Court of Appeal upheld the trial judge’s decision.

Irwin L.J. delivered the following judgment,

Introduction
1. This is an appeal by the Defendant.. (who is ) a consultant neuroradiologist. The judge found that the Defendant negligently failed to identify and report a right middle cerebral artery aneurysm in the course of his review of an MRI brain scan carried out on the Claimant on 6 April 1999.

The Defendant submits that the judge fell into error.. having admitted the evidence of the Defendant’s expert [Expert A], the judge failed to evaluate that evidence on its merits; it is submitted that the judge wrongly performed a “balancing act” between competing expert opinions and finally, that the judge erred in holding that [Expert A] had an interest or bias in the outcome of the case which was “sufficient of itself to dismiss his expert opinion” when set against that of the Claimant’s expert, [Expert B]

The Expert Evidence at Trial
11. The Defendant relied on the opinion and evidence of [Expert A], a…consultant neuroradiologist… As the judge acknowledged, there is no doubt as to [Expert A ‘s] distinguished clinical career…

The Connection Between the Defendant and [Expert A]. 
23. As the judge set out… there was in fact a close connection between the Appellant and his principal expert witness. That was not declared by the Appellant or by [Expert A] . Indeed, the judge clearly concluded that some steps had been taken which might have had the effect of avoiding the emergence of the connection. This aspect of the case caused him real concern, led him seriously to consider excluding [Expert A ‘s] evidence from the trial, and affected significantly the weight which the judge was prepared to attach to his evidence.
24. The Defendant attached a curriculum vitae to his witness statement…In the relevant parts of his curriculum vitae, the Defendant did not mention [Expert A] at all. By contrast, dealing with a shorter period of training spent in the department of neuroradiology… (elsewhere) , the judge noted that the Defendant had taken care

“in this instance, to note in his CV that this enabled him to gain further practical experience under the supervision of (Dr S)”.

25. Nor did [Expert A] indicate in any way a connection with the Defendant. His CV did state that he had held appointments in the [same]…during the late 1980s and early 1990s.
26. As the judge stated:

“[48]. Someone comparing these respective CVs would reasonably infer that [the Defendant] would have had contact, possibly significant contact, with [Expert A]… However, someone looking at the respective CVs would not know the exact nature and extent of any connection between Defendant and Expert A.”

27. The judge summarised the connection between them, and how the matter emerged, as follows:

“[52]. It emerged only in cross-examination at the trial that the connection between the Defendant and [Expert A] had been lengthy and extensive.
[Expert A] had trained the Defendant during his seven years of specialist radiology training, and in particular had trained him for two and a half years as a registrar and senior registrar in neuroradiology, including the particular area of interventional radiology in which [Expert A] specialised and in which the Defendant had a special interest.
It is clear that they had worked together closely over a substantial period. They had written together a paper… and [Expert A] told the Court that they might have co-operated on other papers which he could no longer specifically recall.
[Expert A] helped the Defendant to obtain foreign placements … The Defendant accepted that [Expert A] had guided and inspired his practice, and [Expert A] had helped the Defendant become a consultant in [place].
They had also been officers together on [a] committee..
[53]. It also emerged that the Defendant had suggested that [Expert A] should be a defence expert. He had first been asked in cross examination whether he had chosen [Expert A] as an expert, which he denied, and he had had to be prodded with a further question to elicit the full picture.”

The judge also expressed himself as being “taken aback” by the fact that “in an unguarded moment” Expert A referred to the Defendant as “X”, which although not his first name, is the familiar name by which he is known.

28. The judge took the view that the failure to disclose this close connection was “a very substantial failure indeed”, the more so because there had been a specific direction in the case that:
“Experts will, at the time of producing their reports, incorporate details of any employment or activity which raises a possible conflict of interest.”

29. Since all of this only emerged in the course of the trial, it was too late for any alternative expert to be engaged. At the close of the case, counsel for the Claimant… submitted to the judge that he should entirely exclude [Expert A’s] evidence. Following argument and careful consideration, the judge declined to do so. An important part of his reasoning was that if he did so, the Appellant’s case must immediately fail.

[There was also concern about a scientific paper which was cited by another expert [Expert C],who, in the event, was not called].]

31. …the matter also affected [Expert A]. The judge went on as follows:
“[61]. … The significance of this in the present context is that [Expert A] had been an executive committee member of (the article’s publisher) and could have been expected to know of the criticisms of the study and to realise that [Expert C’s] evidence was seriously deficient and misleading. [Expert A] accepted in cross examination that he had seen a copy of [Expert C’s] proposed report that contained the relevant passage and he also agreed that the study could not accurately be described in the terms used by Mr Byrne, given the criticisms and controversy already mentioned.
[62]. He knew that [Expert C’s] report was being relied upon in respect of what, until very shortly before the trial, was an important contested issue, yet ]Expert A] did nothing at that stage to draw the attention of [Expert C], or anyone else, to what he knew to be the case. The justification for this appeared to be that [Expert C] was the expert on neurosurgery, and it was not within [Expert A’s] remit to comment on any aspect of the neurosurgical evidence.
[63]. I find that explanation difficult to accept.”

32. The judge accepted that [Expert A] was an eminent neuroradiologist. There was no doubt about his clinical expertise and competence to assist the Court. The point was, bluntly, whether he was partial. The judge indicated that he had come very close to ruling that [Expert A ‘s] evidence was not admissible, although he declined to do so in the end. However he went on to say:
“[65]. …I must bear powerfully in mind, when I assess the weight that I should give to the evidence, the reservations that I retain about [Expert A ‘s] independence and objectivity in this case.”

Conclusions
50. I have already made clear that I consider the judge had well in mind the Bolam test, properly formulated.
51. …the starting point is to identify what the judge decided. He considered that the witness [Expert A] had so compromised his approach that the decision to admit his evidence was finely balanced, and that the weight to be accorded to his views must be considerably diminished. In my view he was fully entitled to take that view. Indeed, had he decided to exclude [Expert A’s] evidence entirely, it would in my view have been a proper decision. Our adversarial system depends heavily on the independence of expert witnesses, on the primacy of their duty to the Court over any other loyalty or obligation, and on the rigour with which experts make known any associations or loyalties which might give rise to a conflict. [Expert A] failed to do so here, despite an express direction to that effect. Indeed, the omission of mention of papers co-authored with The Defendant points in the other direction.
52. Moreover, there was good reason for doubting his approach to the problem in hand. He knew that his neurosurgical colleague was relying on research which was highly criticised. [Expert A] was a committee member of the (publishing organisation). As the judge observed, [Expert A] knew the study had been inaccurately described by [Expert C] and knew that evidence might well be given which, as the judge described it, “was seriously deficient and misleading”. Moreover, it was in my judgment an inadequate explanation from [Expert A] to say this arose from the neurosurgical evidence, and was no business of his. Because of the controversial nature of the paper, and [Expert A’s] position in the organisation associated with the research, it was entirely possible that he might himself have been cross examined about it.
53. In circumstances such as those arising here, the scrupulous expert in [Expert A’s] position should be pointing out the problem to the legal team well ahead of trial. No doubt that will usually be done in privileged communication. In many instances, a Court will be cautious in drawing inferences for that reason. However, on the facts of this case, the judge found that Expert A “did nothing”…:.

Edited for ease of reading.

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