Most people will be aware by now that a pilot scheme for “access to public domain documents” in the Commercial Court, London Circuit Court and the Financial List is due to start in October. Guidance and details of the pilot aren’t out yet but it’s expected that at least some expert reports will become publicly available.
In the meantime experts who are concerned about the possibility should start to think about making sure the opinions they provide are consistent, not just within a given report but within all their reports. Of course that’s not really a new requirement and from time to time an expert will be challenged to explain why their opinion today seems to differ from a previous opinion.
That’s exactly what happened in Abbott Diabetes Care v Sinocare a trademark dispute about the design of an ‘on-body’ glucose monitor. The Defendant’s market research expert had examined surveys conducted by the Claimant ‘s expert who unfortunately was unable to testify because of ill-health. This placed more emphasis than normal on her evidence which was critical of the approach used in the surveys that supported the claim.
She was also challenged to explain why her opinions appear to vary in this case compared to her views on what the claimant’s counsel viewed as an equivalent survey in Tesco v Lidl. Fortunately she appears to not only have held entirely consistent views but was well-prepared enough to, as the judge explained “emphatically and, in my view, convincingly, rejected the suggestion that there was no material difference between the Traditional Survey and the Lidl survey.”
What this case does emphasis is firstly the need to be objective and consistent between cases and in the light of the impending Open Justice pilot experts should add a new question to their internal checklist. Not only should they ask ‘what would I say if were on the other side’ but ‘is this the same opinion that I gave last time and if not, why not?’
Secondly if you have appeared in court and your evidence has been discussed (or from this year made public in full) you would be well advised to read up on any relevant cases before giving evidence!
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