The importance of an expert being (and appearing) objective

geyre

Background

In Palmer v Mantas [2022] EWHC 90 the judge was faced with a conflict of opinions between experts as to the consequences of the index event on the Claimant.  The judge dealt first with the psychological evidence.  While commencing with a finding that the expert was helpful and gave genuine and honest answers, and indeed was sympathetic towards the claimant, the judge went on to criticise her.  He pointed out that her first report was ‘littered with judgemental and rather scathing comments’ and that the expert’s ‘references to the Claimant being ‘self-pitying’ and ‘histrionic’ (which she conceded in oral evidence is a term that she would not have used to describe a man), and the raising of ‘possible Social Services risk assessment’ required to ensure the Claimant’s unborn child was properly safeguarded, were unnecessary and inappropriate.’

The expert, it was noted, stated that she liked to use ‘straightforward language’ and that some of her criticisms of the Claimant were stated to be out of genuine concern for her.  However the judge found that ‘the way she expressed herself when criticising the Claimant…went beyond language which is appropriate for an expert to employ and suggests a level of unconscious bias, even where there is a lack of belief in the Claimant’s case, which she undoubtedly did find (and was entitled to do so)’.

In the judge’s view, the expert also made the mistake of placing undue over-reliance on a single historical event reported in the medical records of consuming copious amounts of wine.  This was an event to which the Claimant was unable to provide a response, and in any event post-accident she suffered from alcohol intolerance as one of her symptoms.  The judge was surprised also that the expert relied upon one event, a failure by the Claimant to volunteer that she may have been tired because she had been to Paris for the weekend shortly before her appointment, as being an example of potential dishonesty.  These two incidents were supportive of the finding of unconscious bias on the part of the expert.

The judge found ‘an absence of balance’ on the part of the expert in her analysis of the Claimant’s personnel records in failing to draw attention to the many positive aspects of her work record and the views of her colleagues.

Finally, only during the expert’s evidence in court did she confirm that she deferred to the Claimant’s expert’s analysis of the Claimant’s pre-accident health and that expert’s assessment that the Claimant was presently very unwell and incapable of work.

The upshot was that, while the judge accepted that the expert was not intentionally biased against the Claimant, her unconscious bias was such that where there were any differences between her evidence and that of the Claimant’s similar expert, the judge preferred the Claimant’s expert’s evidence.

The Defendant’s problem did not end there.

The Defendant’s second expert, a pain consultant, fared little better.  The judge recognised that it was open to an expert to disbelieve a Claimant’s account of their symptoms in the context of their overall medical records and any other evidence available, but to do so ’needs necessarily a strict and close adherence to their Part 35 duty which should not be departed from, either intentionally or recklessly.’  He went on to criticise the expert for being ‘over-zealous in his use of language from the outset’, a concession made by the expert himself in evidence who admitted that on re-reading his reports he had ‘winced’ and that he thought he ‘could have been a little bit more reflective and kinder and provided a little bit more range of opinion’. 

He also back-tracked on his description of the Claimant in surveillance film as being ‘more or less housebound’ to assert that ‘she was more housebound than most people of the Claimant’s age’.  He inaccurately asserted that another expert had attributed all of the Claimant’s ongoing complaints to brain injury, when he had not, as the expert had to concede in evidence, and inaccurately suggested that the opposing pain consultant had based his opinion on that other expert, when in fact three alternatives had been given for the Claimant’s condition, only one of which was based on brain injury.

The Defendant’s pain consultant had a practice of not considering the Claimant’s clinical records ahead of his assessment of (and consultation with) the Claimant.  This is a practice one comes across from time to time by experts who assert that they do not want to be influences or biased at interview from having read the history first.  However as a method it provided no opportunity for the Claimant to comment on the contents of these medical records, particularly set against a relatively brief medical history taken orally from the Claimant by the expert.  He also failed to make reference in reviewing aspects of the evidence to anything which might have been supportive of the Claimant’s case.

The judge concluded that there was a significant departure from the expert’s Part 35 duty and a lack of necessary balance.

Independence and objectivity

A court expert is under a duty to help the court on matters within the expert’s expertise (CPR 35.3(1)) and this can only be achieved by being independent and objective.  The principle was stated in the Ikarian Reefer (1993) which predated the CPR but on which much of the CPR was based, and which is still good law, thus:

‘An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise.’

The Guidance for the Instruction of Experts in Civil Claims provides at para 11:

‘Experts must provide opinions that are independent, regardless of the pressures of litigation.  A useful test of ‘independence’ is that the expert would express the same opinion if given the same instructions by another party.’

Professional rules may also re-enforce this approach.  For example the GMC Guidance for acting as a witness in legal proceedings states at para 6:

‘You must make sure that any report that you write, or evidence you give, is accurate and not misleading.  This means you must take reasonable steps to check the accuracy of any information you give, and to make sure that you include all relevant information.’

Para 13 provides:

‘You must give an objective, unbiased opinion and be able to state the facts or assumptions on which it is based.’

Recently in Liverpool Victoria Insurance Co Ltd v Zafar [2019] EWCA Civ 392 it was emphasised that an objective, unbiased opinion must be based on a consideration of all material facts, including those that might detract from the opinion and are not in the best interests of the party who has instructed them.

Learning points

  1. There is no place in an expert’s report or evidence for emotive or loaded language, let alone potentially sexist language.  A report should not contain speculative comment, without putting such comment in its true context and with the facts which support it.  Such language is likely to be seen as indicative of bias, intentional or otherwise.
  2. Even when the expert forms a strong view that the Claimant is lying or manipulative or simply unreliable, the expert must approach the evidence objectively, setting out the material evidence, putting it in context, being sure also to set out any evidence which could arguably lean the other way, and explaining the reasoning which supports the conclusion reached.
  3. The expert should be extremely careful in picking on isolated events in the history to support a more general proposition.  Such an isolated event might be supportive of other evidence, but used on its own the expert may well give the impression of bias, or indeed of carelessness, unless the expert can make the case that although it is an isolated event it is nonetheless, for good reason, an event the expert considers themself entitled to draw appropriate conclusions from.
  4. It is also poor practice for the expert to rely on an event, or an entry, in the records which is generally adverse to the Claimant without giving the Claimant the opportunity to comment on it or to explain it.  If it is the expert’s practice not to read the records until after interviewing the Claimant, then this is a potential weakness in the opinion-making process unless a subsequent opportunity is given to the Claimant to comment before any conclusion is reached by the expert.
  5. Balance is called for in the expert’s approach to the evidence at all times.  An absence of balance is indicative of bias, even be it unconscious bias.
  6. If an expert changes their opinion, or modifies it significantly, subsequent to providing a written report, then this should be notified to their lawyers at the earliest opportunity, for them to inform the other side.  The report should be amended or a further report prepared which explains the reason for the change of opinion (see Guidance para 66).  Giving a different or modified report while giving evidence in court is likely to undermine the expert’s evidence more generally and can be suggestive of previous bias or lack of care.
  7. An expert will undermine their evidence if they inaccurately state the opinion or the evidence of another expert in the same case.  This is either indicative of lack of care or of bias.

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Getting experts’ joint statements right

geyre

Background

In the judgment of Master Cook in the case of Aderounmu v Colvin [2021] EWHC 2293 is another example of what can go wrong with the joint statements of experts following a joint discussion.

  1. [The psychiatrists] produced a joint statement dated 22 December 2020. Unfortunately, this is an overly-lawyered document comprising 34 questions many of which had numerous sub-clauses and in places descended into cross-examination. This is not helpful to the court. A joint statement should aid the understanding of key issues and each expert’s position on those issues.
  1. The [neuro-psychologists’] joint statement dated 14 January 2021 suffered from the same vice as that of the psychiatrists; it is an overlong overly-lawyered document which asked many questions which were nothing more than a cross-examination of the experts on their respective approaches, or attempts to advance the arguments on behalf the parties’ respective positions. Of the 41 questions posed only about 2 were of assistance to me in understanding the issues on which the experts agreed, the issues on which they disagreed and the reasons for their disagreement.
  2. Parties should resist the approach that has been taken in this case.  A joint statement by experts pursuant to CPR 35.12 is for the benefit of the court and should not be a proving ground for the parties’ respective cases. Written questions should be put to experts under CPR 35.6 within 28 days of the service of an expert’s report.

A similar problem arose in the earlier case of Saunders v Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343 where the judge said:

34. Both experts provided clear reports that were easy to read; thorough and attractively presented with useful diagrams attached. However, their joint statement was disappointing. It was 60 pages long and did not fulfil the purpose identified in CPR 35PD 9.2 “to agree and narrow issues”. It seemed to me that the difficulty may have arisen not through the fault of the experts but through the way in which the agendas were drafted. I say “agendas” because, for reasons not explained to me, there had apparently been two separate agendas that the experts were required to consider. Both involved repetitive questions for the experts and far from producing a focus on the real issues, the result was a document that served only to confuse rather than assist.

35. I can see no good reason why the parties were unable to agree a single agenda in this case. Perhaps greater input from Counsel may have assisted. …Frankly, the approach to the joint statement in this case achieved nothing of value.

There is, in these cases, criticism of the lawyers involved, but it is the experts who are responsible for producing, and signing off on, a joint statement.  The experts must therefore understand what it is they are supposed to be doing and take responsibility for it, and if necessary take action to remedy any difficulties that arise.

The procedural framework

Let’s go back to what the purpose of the joint discussion is supposed to be.  The Practice Direction to Part 35 of the Civil Procedure Rules is quite clear and provides:

9.2 The purpose of discussions between experts is not for experts to settle cases but to agree and narrow issues and in particular to identify:

(i) the extent of the agreement between them;

(ii) the points of and short reasons for any disagreement;

(iii) action, if any, which may be taken to resolve any outstanding points of disagreement; and

(iv) any further material issues not raised and the extent to which these issues are agreed.

The purpose of doing this is to assist the court at the trial, and the parties both at the trial and in the lead up to it, in understanding precisely what expert issues remain to be determined, and where each expert stands on those issues on which they do not agree.

Therefore, left to their own devices the experts should, in the course of the joint discussion, ascertain, and set out in the joint statement, their points of agreement, the points of disagreement and the reasons for such disagreement, and whether anything could be done to resolve the remaining areas of disagreement between them.  This should be relatively brief.  Both experts have already produced written reports in which they should have explained their positions in some detail, so that the joint statement should only need to set out the positions briefly. 

To make matters as clear as possible to the lawyers, it is necessary to separate the points of agreement from the points of disagreements – it is surprising how many joint statements fail to do this – numbering each point, and, in relation to the points of disagreement, summarising in relation to each one the basis for the disagreement.  In doing this, what is written must be easily understood by a lawyer, and in terms of the audience’s medical expertise it may be useful to imagine that the experts are addressing year 1 medical students.  In this way, the minds of all involved in the litigation can be focussed on the reasons why the experts have been unable to agree, which will form the principal area of investigation (and cross-examination) at the trial.

The Practice Direction contains this further important statement:

9.7 Experts must give their own opinions to assist the court and do not require the authority of the parties to sign a joint statement.

And related to this the Guidance for the Instruction of Experts in Civil Claims (the Guidance) provides:

77 Lawyers must not instruct experts to avoid reaching agreement on any matter within the experts’ competence.

The joint statement is the experts’ document, and not the lawyers’.

To reinforce these points, the joint statement is required, by para 80 of the Guidance, to include:

1. A brief re-statement that experts recognise their duties AND

2. An express statement that the experts have not been instructed to avoid reaching agreement on any matter within their competence.

Agenda

In Aderounmu v Colvin and Saunders it was the lawyers who contributed to creating the ‘over-lawyerly’, unhelpful and overlong joint statement.  Lawyers do have a role in relation to producing an agenda. The Practice Direction provides:

9.3 Where the experts are to meet, the parties must discuss and, if possible, agree whether an agenda is necessary, and if so attempt to agree one that helps the experts to focus on the issues which need to be discussed. The agenda must not be in the form of leading questions or hostile in tone [my emphasis]

It seems likely that the agenda(s) provided to the experts in these cases did not help the experts focus on the issues needing to be discussed – identifying the areas of agreement, disagreement and the reasons for disagreement – and that they were in the form of cross-examination, and therefore quite probably contained leading questions hostile in tone.  It is not the purpose of the joint discussion to deal with such questioning and it is not the role of the joint statement to record answers to such questions, although there may be some scope for this separate from the joint discussion in Questions to experts on their reports under CPR 35.6.

The Guidance provides in relation to the drafting of an agenda:

75 Primary responsibility for preparation of the agenda should normally lie with the parties’ solicitors

76 The agenda should indicate what has been agreed and summarise concisely matters that are in dispute

An agenda may be used quite properly by lawyers to ensure that the experts address the issues which require to be addressed for the purpose of the litigation, and to ensure that any legal tests relevant to that are properly considered and applied.  That is an important role for the agenda.  For example, if the experts have failed properly to address the standard of proof or the Bolam test or rules of causation in relation to damages then the agenda should seek to get them to do so.

If the expert is uncomfortable because of the length of an agenda or the nature of its questioning or the hostility it demonstrates, then they should raise their concerns with their instructing solicitor, referring if they wish to the Practice Direction and the Guidance.  If the solicitor fails to address this adequately, whether the agenda is one produced by them or the other side or both sides, then the expert can resort to seeking directions from the court as to whether the questions should be answered, under CPR 35.14. (For more on seeking directions from the Court, see Section 4.6.2 in Writing Medico-Legal Reports in Civil Claims – an Essential Guide – Eyre and Alexander.)

While the experts must ensure that the joint statement deals with the matters set out in 35PD 9.2 (above), they should also (and if they consider it appropriate, separately within the joint statement) answer the questions in the agenda(s) unless an order is obtained from the Court releasing them from having to do so.

Learning points

The joint statement is an important document. It ought to be possible to read it and to understand the key issues and each expert’s position on those issues. Sometimes less is more as far as the agenda is concerned.

Parties should adopt a common sense and collaborative approach rather than allowing this stage of the litigation to become a battleground. (Yip J in Saunders v Central Manchester University Hospitals above)

Many difficulties with the joint statement can be avoided if the expert follows this guidance:

1. Prepare for the meeting, by:

  1. Identifying the issues between the experts – both legal and expert
  2. Analysing the evidence which relates to the expert issues
  3. Preparing a process for the meeting to ensure that the functions of a joint discussion are properly and fully addressed – areas of agreement, areas of disagreement and reasons for disagreement.

2. Remember that the precise wording of the joint statement is crucial.  The audience is made up of lawyers, to whom words matter, and the expert is working in the legal arena and therefore needs to apply the appropriate legal tests accurately.

3. Produce in the joint statement a document that a non-medically qualified person can read in order to understand the key issues and each expert’s position on those issues.

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