THE INTERCHANGE BETWEEN LAWYERS & EXPERTS: A DIFFICULT ISSUE

In a week where there is a report of an application being made for a doctor to be committed for contempt* it is prudent to consider that difficult issue of the relationship between the lawyers in a case and the experts. The difficulties are considered in the judgment of Mr Justice Garnham in Cox -v- The Secretary of State for Health [2016] EWHC 924 (QB). There are difficulties relating to  issue of when, and the extent to which it is appropriate for lawyers to “discuss” with an expert the nature of their evidence.

“In my judgment the role of the expert witness is to provide expert evidence on the issues he is asked to address, rather than to concern himself with the conduct of the litigation.”

“…it is perfectly proper for legal representatives to discuss with expert witnesses the contents of their reports. It is proper for a legal team to invite an expert to consider the evidence that has arisen and to reflect on the effect of that on his opinion.”

THE CASE

The claimant suffered serious brain injury at birth in 1986. She brought an action for negligence.

THE JUDGE’S CONSIDERATION OF THE EXPERTS

  1. Expert obstetric evidence was called on behalf of the Claimant from Mr Roger Clements and on behalf of the Defendant from Mr G Jarvis. Finally, I heard from consultant anaesthetists instructed by both parties, Dr Anthony Rubin on behalf of the Claimant and Dr Ian Russell on behalf of the Defendant.
  1. Criticism was made by both sides of their opposing experts. Mr Rees was critical of Mr Clements, in particular in relation to his evidence on the second substantive head of negligence, namely the failure by Dr Giller to deliver Sarah by a vaginal breech extraction.
  2. Mr Clements agreed in cross examination that there had been no reference to a failure to attempt vaginal breech extraction in an earlier report (an “advisory report”) he had produced for the Claimant’s solicitors. He agreed that the possibility of mounting such criticism had only occurred to him some time later when considering some different case. He said:
Discussing the case again, probably after a conference with Counsel, I revisited the question regarding breech extraction. The primary criticism was a lack of proper system dealing with it. Then, I realised, as a second twin, and a small baby it was not unreasonable to also allege that breech extraction was an option the doctor could have taken. I advised those instructing and they modified the Particulars of Claim accordingly.” (emphasis added)
  1. It was suggested to him that when he was first instructed he took the view that “vaginal breech extraction was not an option“. He said he had considered it, but:
was persuaded after some time that this was a secondary twin so breech extraction could be pleaded.
  1. Later he said:
When I say persuaded, I don’t mean someone pinned me against a wall, I mean that over a period of time I was persuaded, I persuaded myself, I came to the view that it was not unreasonable to consider vaginal breech extraction.” (emphasis added).
  1. I confess that I am somewhat troubled by that evidence, and in particular by the account of Mr Clements being “persuaded” or “persuading himself”, his making value judgments about what would be the better case to plead and his including in a report for the court an opinion which he thought it would “not be unreasonable” to advance. In my judgment the role of the expert witness is to provide expert evidence on the issues he is asked to address, rather than to concern himself with the conduct of the litigation.
  2. I accept that there is here no evidence of any impropriety on the part of either counsel or solicitors for the Claimant in their contact with Mr Clements. I accept that it is perfectly proper for legal representatives to discuss with expert witnesses the contents of their reports. It is proper for a legal team to invite an expert to consider the evidence that has arisen and to reflect on the effect of that on his opinion. There is nothing to suggest anything beyond that was done here.
  3. The evidence presented to the court should be the independent opinion of the expert, uninfluenced by the course of the litigation. As Lord Wilberforce said in Whitehouse v Jordan [1981] 1 WLR 246, at 256:
While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to formal content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self defeating.
  1. On balance, I am satisfied that Mr Clements’ evidence on this topic stayed the right side of the line of what is acceptable in this regard. However the extent to which he saw himself as concerned with the conduct of litigation has led me to consider his evidence on this topic with particular care (see, on this subject, paragraphs 146 and following, in particular).
  2. Mr Sweeting, in turn, is critical of the evidence of Mr Jarvis and of Dr Russell. I say immediately that, in my judgment, the criticism of Dr Russell is entirely misplaced. Dr Russell expressed his opinion to me in firm terms, making it very clear that he regarded the case being developed by the Claimant as wholly without merit. There were answers given by him which contained a degree of hyperbole and might have been expressed in more measured terms. But I see nothing improper in an expert expressing himself forcefully if it is his genuine view that that is what the questions require. I regarded Dr Russell as an impressive and entirely credible witness. I will turn later on in this judgment to indicate what I made of his opinion.
  3. The criticism of Mr Jarvis has a little more force. His evidence got off to a bad start. His report makes no reference to the fact that Sarah and Samantha were mono-amniotic twins, despite the fact that Dr Giller so describes them in her first witness statement and despite the fact that Mr Jarvis had that statement when he prepared his report. I am driven to the conclusion that Mr Jarvis simply made a mistake about that and proceeded on the basis that this case concerned the more common type of twin pregnancy, rather than the rare type described by Dr Giller. Mr Jarvis’ explanation that he doubted that Dr Giller’s account was correct is not, in my judgment, convincing. At the very least, his report ought to have referred to the nature of her account, addressed that account and explained why he thought it was unlikely to be accurate. He accepted that criticism whilst giving evidence.
  4. Second, Mr Jarvis’ assertion in his report that “an operating theatre must be available in case emergency caesarean section was required” is not supported expressly in the literature to which he referred. Mr Sweeting suggested that that had demonstrated a woefully inadequate approach; in my judgment that is to put it too high. In my view, Mr Jarvis’ error lay in not making it clear that that was simply his opinion.
  5. Third, Mr Sweeting makes complaint about the nature and extent of Mr Jarvis’ connection with the Jessop Hospital. It is right to say that Mr Jarvis had been a registrar at this hospital between 1978 and 1981. However, Mr Jarvis made it clear at the very beginning of his report that that was the position and I see no possible basis for criticism of him, his having made that declaration on first being instructed.
  6. Mr Sweeting refers to the observations of Haddon-Cave J in Sardar v NHS Commissioning Board [2014] EWHC 38, where Mr Jarvis was described as a “most unsatisfactory expert witness“, who “appeared to forget his duty to the court and seemed illegitimately to stray into advocacy for the Claimant’s cause” (paragraph 33). Having been alerted to this authority by Mr Sweeting, I made particular point of reflecting on what Mr Jarvis told me with that criticism in mind. In my judgment, Mr Jarvis did not make a similar mistake in this case. He maintained his opinion as to the propriety of the Defendant Hospital’s conduct of this pregnancy, but he did not, in my judgment, stray into becoming an advocate for them.
  7. It follows from what I have said above that I need to approach all the obstetric evidence with a degree of care. I do not feel able to decide this case simply by reliance on one expert in preference to the other. My judgment will turn on the merits of the factual case rather than the merits of the experts. The same can be said about the anaesthetic experts, although for rather different reasons; I regarded both experts in this discipline as being wholly reliable.”
  • In Liverpool Victoria Insurance Co Ltd -v- Khan & others (Lawtel 03/05/2016) the applicant was making an application for contempt in relation to a doctor who, it is alleged, amended a report at the claimant’s solicitors request, falsely describing the injuries as more serious).    The substantive application is to be heard at the end of the month.

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