Another Expert changes his mind – The effect on the party

Necessity for Expert Evidence, late application & £1 million fees

Ergonomics – an uncomfortable seat in the box

[2012] CSOH 001 TEDR Volume 17 Issue 1

In many ways these judicial comments on the experts might be regarded as the Scots version of the English popcorn case (Trebor Bassett Holdings Limited & others v ADT Fire & Security Plc [2011] EWHC 1936 (TCC)) last year. There is however a significant difference in that some Experts were not referred to in the same way as the ‘infamous four’ in Trebor Bassett. For example “Turning to Dr Graveling, he impressed me as being steady, reliable, thoughtful and professional” and “I turn to Dr Ross. He is a consultant orthopaedic hand surgeon. He has specialised in hand surgery since 1982 as is evident from his CV. His evidence was clear and persuasive.”

In a similar vein to the Trebor note (see TEDR vol 16 iss 02 pp 28-29) this is a series of extracts from the judgement. Not so much on the case but on the so called experts. The extract on Mr Andrews is longer than usual but the learned judge did list nine different reasons for effectively disregarding his opinion.

“Observations on the Evidence.

Turning first to the pursuer, I would observe that it was apparent that, at times, he was prone to exaggeration.

…

I move then to Clive Andrews, who retired from teaching ergonomics at Napier University in 1998 and is 78 years old. I reject his evidence. It was presented as expert evidence, the area of expertise relied on being ergonomics, particularly, for the purposes of this case, in the context of upper limb injuries sustained at work. I was not, however, satisfied that he was qualified to give expert evidence at all. Rather, unfortunately, his evidence demonstrated his incompetence. I so conclude for a number of different reasons. First, as a generality, he was dogmatic, unduly defensive, aggressive at times and not prepared to make any concessions at all. Secondly, he asserted that he kept up to date. Doing so would, evidently, involve knowledge and understanding of relevant up to date studies (the defenders’ productions included, for instance, studies which postdated 2000). Mr Andrews report contained a list of 30 references “RE: TENOSYNOVITIS” ranging in date from the nineteenth century to 1982. No reference later than that was included, not even the later 1987 version of a report (the 1982 version of which he listed) by ‘Armstrong et al’(produced by the defenders at 7/15, 5b). Some of them were written in German; Mr Andrews does not speak or read German. Although he, initially, insisted that he had read all the papers and articles referred to, on further questioning, it transpired that he had not done so. He suggested he had read synopses in English, of the German ones. He also said he could not remember what he had read. Thirdly, he repeatedly and erroneously referred to Dr Graveling’s report as having stated that the time involved in the manual folding process alone (i.e. stages (ii) and (v) above) was 20 seconds when plainly it did not …. Further, he insisted on basing his answers on a timing of 20 seconds … even although the DVD (which he had filmed himself) demonstrated that the time taken was significantly less than that. Fourthly, when asked if he had read the report by Dr Ross, his answer was that he ‘believed’ it had been sent to him but he had ‘read a whole lot of documents’ and hoped that if it was in ‘the pile’ that he would have read it, giving the distinct impression that he had a poor memory and was careless. Fifthly, he refused to answer questions in cross examination which were posed on the basis of a hypothesis of fact which was, given the defender’s case, appropriate. Sixthly, he had worked on the basis that the breaks afforded to the pursuer when working 12 hour shifts were only 50 minutes (which they were not – as above noted, the breaks totalled 90 minutes) and that the pursuer worked a 5 day week on 12 hours shifts (which he did not – he worked 4 days). Seventhly, he was offensively dismissive of Dr Graveling’s report. He assumed he had not slowed down his DVD, to analyse it (which Dr Graveling had in fact done). He referred to Dr Graveling’s use of the word “stereotyped” and rejected it because ‘it could mean anything’; as Dr Graveling explained, that term is well recognised by ergonomists. Eighthly, he made no allowance, when analysing his DVD, for the fact that it was a staged event … as Dr Graveling explained, tends to be artificial. Ninthly, as explained by Dr Graveling, the description in Mr Andrews’ report of the sequence of movements carried out by the pursuer in the folding operation did not tally with what was shown on the DVD.

…

Moving on to Professor McQueen, her eminence in the field of orthopaedics, particularly in relation to the upper limbs, is well known and was not disputed. She is a world authority on wrist fractures. She examined the pursuer on 3 May 2010, some 3 years and 8 months after him having attended his GP complaining of wrist pain. She concluded that the pursuer’s pain at that time was a result of tendonitis. The treatment of tendonitis is a minor part of her practice, amounting to about 5%. Professor McQueen concluded that the pursuer had been suffering from tendonitis. She stressed that her view was arrived at on a balance of probabilities – in fact referring, at one point, only to there being a “chance” that the pursuer was suffering from tendonitis – and in circumstances where she could not think of any other diagnosis … She also appeared to assume that the job involved rapid movements of which there were many in succession which, again as shown by the above findings, it did not.

Professor McQueen did, however, accept that so far as the thinking behind prescribing an anti-inflammatory was concerned, one would need to hear what the GP had to say about that. It was evident that she was assuming, from the fact of the prescription of diclofenac that the GP had been satisfied that there was inflammation. Also, she had not viewed the DVD she had not seen the pursuer carrying out the relevant manual folding task and she was not given any account of the particular hand and arm movements involved; it was surprising, in these circumstances, that she was prepared to offer the view that the pursuer’s condition was caused by his work. … Professor McQueen’s assumption that the pursuer’s task involved rapid movements of which there were many in succession was shown by the DVD and by the pursuer’s and his workmates’ descriptions of the job, to be erroneous. Further, regarding (e) she appeared to contradict herself, having earlier indicated that inflammation in that area was indicative of a de Quervain’s tendonitis but that she did not even suspect that the pursuer had that condition. She would not countenance the possibility that the appropriate way to describe the pursuer’s condition was as having had arm pain of inspecific origin because, in her view, that could only apply in the case of malingerers – which the pursuer was not – or persons with psychological problems. The impression was that she felt she had to come up with a diagnosis and tendonitis was her best effort. I found that the above matters significantly weakened the value of her evidence and led me to the conclusion that I could not place any weight on it when determining the issues in this case.

…

Turning to the expert evidence, Mr Mackenzie referred to the well known passage in the opinion of Lord President Cooper in Davie v Magistrates of Edinburgh where he stresses that however expert the witness, he can do no more than give evidence to furnish the judge with the necessary scientific criteria for testing the accuracy of their conclusions and that ultimately, the decision is for the judge not the expert.”

Medical experts reference and the consumer need for 2nd Expert

[2006] 1 FLR 543, [2005] EWCA Civ 1247 TEDR Volume 11 Issue 1

The Facts

The appellant parents (W) appealed against an order made in care proceedings brought by the Oldham Met Borough Councul in relation to their son. After the conclusion of the first limb of a “split” hearing, the judge had held that the son had suffered a non-accidental brain injury as a result of a shaking episode, that the injury had been caused by one of K’s parents, and that the threshold criteria under the Children Act 1989 s.31 were satisfied.

The judge relied on the evidence of a single expert in paediatric neuro-radiology and had dismissed applications by W to instruct a second expert. The local authority did not initially object to a second opinion being sought by the parents but did oppose the application when it became clear that the provision of that second opinion would delay the hearing.

The report of a second expert (when it was obtained) had expressed a clear and fundamental disagreement with the first expert and supported the parents’ case that their son’s injuries were not the result of any deliberate infliction of harm. In the circumstances, the parties had

agreed that the judge’s findings could not stand and that the case would have to be remitted to another family judge for re-hearing.

The Issues

In many such family cases it would be inappropriate to allow parents to obtain second opinions in respect of all the expert evidence. However, in certain cases, where medical evidence of non-accidental head injury or unascertained infant death became highly relevant, the courts would be slow to decline an application for a second expert, as that sort of expert evidence could not easily be taken issue with, without a further expert

opinion contradicting the first expert report in certain respects. Such a second opinion should normally only be permitted where the question to be addressed went to an issue of major importance.

In this case there had been no real consensus or agreement between medical practitioners in the proceedings because they had all “deferred” to the single expert. In that unfortunate context the parents were permitted to obtain and rely upon a second opinion on what was on any footing the major medical issue in the case, Daniels v Walker (2000) CILL 1629 was applied in reaching this decision. (2) The protocol for judicial case management in public law Children Act cases ((2003) 2 FLR 719) was stated to be sufficiently flexible to allow for the obtaining of a second opinion in suitable cases. It was emphasised that the potential requirement for a second opinion should be addressed and recognised and then actioned as early as possible in the case. (3) Where complex medical issues were being considered, the need for a second opinion on any critical medical issue in the case was particularly significant and the provision and due assessment of such a second opinion by the trial judge

would provide a final judicial decision based on firmer foundations than otherwise would be the case. (4) If an opinion on a significant issue in the case was given by an expert with a previous clinical role in respect of the child or children (and hence an argument of lack of independence

or objectivity might arise). this provided a further ground for having a second opinion if one was sought by or for the parents. (5) The guardian had a pro-active role to play so as to make sure that all the relevant evidence had been collected for the court to make an objective

and informed decision. If a guardian took the view that a second opinion sought by parents was properly necessary he should not hesitate to say so and hence should not endeavour to maintain a neutral stance at all times.

The Decision

In many such family cases it would be inappropriate to allow parents to obtain second opinions in respect of all the expert evidence. However, in certain cases, where medical evidence of non-accidental head injury or unascertained infant death became highly relevant, the courts would be slow to decline an application for a second expert, as that sort of expert evidence could not easily be taken issue with, without a further expert

opinion contradicting the first expert report in certain respects. Such a second opinion should normally only be permitted where the question to be addressed went to an issue of major importance.

In this case there had been no real consensus or agreement between medical practitioners in the proceedings because they had all “deferred” to the single expert. In that unfortunate context the parents were permitted to obtain and rely upon a second opinion on what was on any footing the major medical issue in the case, Daniels v Walker (2000) CILL 1629 was applied in reaching this decision. (2) The protocol for judicial case management in public law Children Act cases ((2003) 2 FLR 719) was stated to be sufficiently flexible to allow for the obtaining of a second opinion in suitable cases. It was emphasised that the potential requirement for a second opinion should be addressed and recognised and then actioned as early as possible in the case. (3) Where complex medical issues were being considered, the need for a second opinion on any critical medical issue in the case was particularly significant and the provision and due assessment of such a second opinion by the trial judge

would provide a final judicial decision based on firmer foundations than otherwise would be the case. (4) If an opinion on a significant issue in the case was given by an expert with a previous clinical role in respect of the child or children (and hence an argument of lack of independence

or objectivity might arise). this provided a further ground for having a second opinion if one was sought by or for the parents. (5) The guardian had a pro-active role to play so as to make sure that all the relevant evidence had been collected for the court to make an objective

and informed decision. If a guardian took the view that a second opinion sought by parents was properly necessary he should not hesitate to say so and hence should not endeavour to maintain a neutral stance at all times.

Comment

A very important case in the child welfare arena. It shows the dangers and limitations of single expert witnesses in certain cases. It also shows the significance of having a second opinion to enable the court to make a balanced and objective decision. The case made the point that it would be wrong to rule out opinions from those with previous clinical involvement as that involvement could provide for expertise and excellence to be passed on to the court – however the other side of the coin was that such involvement heightened the strength of the argument for a second opinion from an independent expert not involved in the previous clinical history of the case.

Guidance for Experts in Family (and possibly other) Matters

[2007] EWHC 136 (Fam), [2007] 2 FLR 597 TEDR Volume 12 Issue 2

The Facts

The court was asked to determine certain facts and make recommendations, and in particular to make some findings in respect of an expert (F) in paediatric neuro-radiology, arising out of concluded care proceedings. In the course of his judgment, Mr. Justice Ryder also related the findings and recommendations made earlier in the case by the Court of Appeal and added further recommendations of his own. For the purposes of this summary no distinction will be made between which court made which recommendations.

In care proceedings brought by the local authority as applicant, the judge relied solely on the evidence of F in finding that one or other of the parents had been responsible for a non-accidental brain injury sustained by their infant son as a result of being shaken.

The parents appealed against that decision and asserted that the report of a second expert, which clearly and fundamentally disagreed with the conclusions drawn by F, supported the parents’ case that their infant child’s condition had an innocent origin. That second opinion had not been adduced before the judge.

The parties. prior to the appeal being heard, agreed that the judge’s findings could not stand and that the case should be remitted to another family judge for a rehearing.

Following the instruction of further medical experts, a consensus of medical opinion was reached, with which F agreed and which was very much at odds with his earlier opinion on which the trial judge had relied.

The Issues

Guidance was given on the advisability (or rather the non-advisability) of the court relying on a single expert in care proceedings.

Counsel for all the parties subsequently invited the court to give judgment in open court in respect of the agreed facts and to address what went wrong so as to avoid such mistakes being made in the future. Certain issues relating to the conduct of F in his capacity as an expert witness were also addressed.

The matter had come before Thorpe LJ, Wall LJ and Black J on the 25th July 2005 when the court, by consent, allowed the appeal. The matter was remitted for rehearing before the High Court as soon as possible.

In a Judgment delivered on the 31st October 2005 the Court of Appeal gave guidance on the use of expert evidence. In the context where there has been a jointly instructed expert or an experts’ consensus which a party seeks to challenge, the court held that a second opinion should normally only be permitted where the question to be addressed by the expert chosen to give the second opinion goes to an issue of critical importance to the judge’s decision in the case. Mr. Justice Ryder observed that that principle echoes an earlier statement of principle that is not diminished by the subsequent case law on residential assessments and which was not cited to the Court of Appeal: Re G (interim Care Order: Residential Assessment) [2004] EWCA CIV 24, [2004] 1 FLR 876 at 891 para [54] per Thorpe LJ where it was held:

“in the case of P, C and S v. United Kingdom (2002) 35 EHRR 31, [2002] 2 FLR 631 the statement of general principles between paras [113] and [120] reinforce the obligation to ensure within the court process the exploration rather than the exclusion of expert assessment and opinion that might negate the State’s case for the permanent removal of a child from his parents.”

The Decision

Given the weight of cogent evidence now available to the court, the following findings were made by consent by the Court of Appeal:

(i) The infant had never been a victim of non-accidental injury;

(ii) the care by the parents was and always had been exemplary;

(iii) The parents relatives had acted promptly and appropriately in obtaining medical treatment for him;

(iv) the medical experts were in agreement that K’s brain injury was likely to have been caused by asphyxia pre-delivery, and it was very unlikely that non-accidental brain injury could have caused the pattern seen in imaging scans of the infant’s brain

(v) F had genuinely formed a different professional opinion on a very difficult problem, but was in error in that he had unconsciously gone outside his role as an expert witness and adopted the role of a decision maker.

(vi) The court would not criticise F for his opinions, but observed that the language he had used in his first report had obscured the highly unusual nature of the case.

(vii) In addition to the guidance formulated by the court in this case, the following recommendations were made:

(a) local authorities should always write a letter of instruction when asking a potential witness for a report or opinion (either before or after legal proceedings are underway) which should comply with current principles;

(b) when requesting and collating documentation in the case, all parties should be careful to set out requests made of third parties to provide disclosure and of their responses – so that the possibility of less than complete disclosure that sought to establish a case (rather than give a full and frank and balanced position) could be put to rest. In any event considerable care needed to be taken when placing reliance on materials that had not been produced either as “original medical (or other professional) records” or in response to an instruction from a party. The reason for this was that such documentation could include assumptions as to certain procedural and evidential matters such as the standard of proof and the admissibility of hearsay evidence (which assumptions might not be correct).

(c) when appointed and instructed, expert witnesses in providing assistance to the court should comply with the best practice of their clinical training. This included specifically that:

(i) they ought to set out their risk assessment process and the process of differential diagnosis that had been undertaken;

(ii) they should make it clear when they had made factual assumptions and drawn any conclusions based on those assumptions;

(iii) they ought also to point out any unusual features of the case;

(iv) they ought to expressly refer to any contradictory or inconsistent elements;

(v) they ought to identify the range of opinion on the question to be answered, giving reasons for the opinion held;

(vi) they ought to highlight whether a proposition was a hypothesis or an opinion arrived at in accordance with a peer reviewed and tested technique, research and experience accepted as a consensus;

(vii) they ought to point out and assess any “unknown cause”.

The court observed that the use of what was called a “balance sheet approach” to the factors that supported or undermined an opinion could be of considerable help.

The court expressed the view that experts generally may have become too focused in trying to reach agreed solutions to difficult problems. Experts should inform the court of their agreements and their disagreements – the latter can often be as important as the former.

In addition the court recommended that an expert should be requested at the earliest stage as to whether in his view another expert was needed to bring some skill or expertise not possessed by those already involved or (in rare instances) a second opinion on a key issue identified by the court and, if possible, what questions should be asked of that expert;

The court proposed that the current “Code of Guidance for Expert Witnesses in Family Proceedings” should be amended to incorporate the above recommendations.

Comment

An immensely important case for medical experts involved in family and other cases.