EXPERTS AND EVIDENCE: WHEN THE CASE GETS PIECED TOGETHER ON THE EVE OF THE TRIAL
In the course of a very detailed judgment today in a clinical negligence case Mr Justice Langstaff made some important observations about expert evidence. He observed that late evidence may lead to costs consequences. Given that the whole rationale of the CPR is to ensure that the parties know they case they have to meet at trial it is surprising how many cases involve the late service of evidence or (as in this case) the late piecing together of evidence.
In Velarde -v- Guy’s & St Thomas NHS Foundation Trust  EWHC 1250 (QB) the claimant was bringing an action for clinical negligence following the development of brain injury whilst being treated.
The judge commented on how the medical records, which were critical to the issues in the case, came to be fully understood only the day before trial.
“Problems in the Evidence
The records which chart the fluid balance from day to day, and the blood pressures associated with doses of Captopril, have proved unusually difficult to interpret. A number of recordings of readings relating to particular time periods were begun on one page, but completed on a different page, often without the entries on one page flowing seamlessly from hour to hour and day to day such that the one page naturally followed the other. The records of some readings of mean arterial blood pressure have been squashed into a row not initially designed to accommodate them. This misled both leading counsel until immediately before the start of the trial, despite their experience of dealing with clinical cases, and has led to misinterpretation of the available data by expert witnesses. The difficulty has been aggravated by the use of different records to cover the time when Alexander was in the PICU and that after he was transferred – on what turned out to be the 27tth. September, though one expert was misled by this too – to the Rothschild ward (in the light of what had up until then appeared to be good progress). An unfortunate consequence of this has been the expression of developed views by the experts on both sides of the argument in the light of that which they understood – sometimes wrongly – to be the data. Though expert witnesses must be expected to moderate their views in the light of different information, and I do not doubt those appearing before me all recognised the need in general terms to do so, I have also to recognise that even for those who have the objectivity of most experts there may be a reluctance to change or moderate a once firmly expressed view. A court has to be alert to this.
It is also the case that some experts – notably Dr. Elliot Shineborne, called by the defendant – did not appreciate the timescale over which the physical causes of Alexander’s injury developed. This was properly to be assessed by reference to the evidence of neuro-radiologists instructed by the respective parties who did not in the event need to be called, such was the measure of their agreement. The injury they saw was, however, a rare one: where a thrombosis occurs in the brain, it more usually does so in the arterial circulation. This was venous. The rarity of the particular insult explains why there was some uncertainty about the precise timescale within which the events which precipitated injury occurred.
The claimant was unsuccessful, however the judge observed:
“I have been driven to reach the conclusions I have despite what might be seen as unfortunately late developments in the Defendant’s presentation of their case: If any submissions arise in respect of costs in this regard, I will consider it in a separate ruling: if the parties wish it, they may agree directions for this subject to the approval of the court.”