EXPERT WATCH II: ATTEMPTS TO SNEAK THE EVIDENCE IN

There are some examples of  ingenious attempts to introduce expert evidence into cases.  Mr Justice Arnold commented on this in his judgment in Teva UK Ltd -v- Gilead Sciences Inc [2017] EWHC 13 (Pat).  A “factual” report from an expert is still an expert report. Serving civil evidence notices in relation to scientific papers does not make that evidence admissible in itself.

THE EVIDENCE

“The evidence

1. The parties in this case adopted slightly odd procedures to adduce evidence of the technical background. Gilead served a witness statement of Professor Brian Gazzard CBE, who is Professor of HIV Medicine, Consultant Physician and Research Director for HIV and Genitourinary Medicine at Chelsea and Westminster Hospital. Prof Gazzard is, and has been for many years, a well-known and eminent expert in the field of HIV treatment. He stated in his witness statement that he had been asked to give evidence “as an independent fact witness”. In reality, Prof Gazzard’s evidence is, at least in part, expert evidence which Gilead did not obtain the permission of the Court to adduce. The fact that his statement was, commendably, quite brief and drafted so as to be uncontroversial does not alter this. Sensibly, however, the Claimants did not object to the admission of this evidence. They did, however, point out that some of it was of no relevance since it related to the position well after the priority date of the Patent.

2. For their part, the Claimants served hearsay notices in respect of a number of scientific papers. This was another device for adducing what in substance amounted to expert evidence without obtaining the Court’s permission, and an even less satisfactory one. The general rule in English law is that a scientific textbook or article is not in itself admissible evidence: see Phipson on Evidence (18^th ed) at §32-20. The reason for this rule is that it cannot generally be assumed that the court has sufficient expertise to understand and assess such materials without the assistance of an expert. It is, of course, entirely proper both for expert witnesses to refer to such materials in their evidence, and for cross-examiners to test the evidence of such witnesses by reference to such materials, but that does not alter the fact that the primary evidence is that of the expert witnesses. Again, however, Gilead sensibly did not object to the admission of this evidence. It is again uncontroversial and I was able to understand it to the extent necessary.”

RELATED POSTS

• Expert Watch: Sources of Information and Belief.
• Is this an expert report I see before me? I think not.
• That difficult distinction between an expert witness and an advocate.
• The expert witness that tells the judge the facts: a review of recent cases.
• The witness who knows nothing and wants to be an expert: a review of the cases
• Witnesses who did not understand their statements, would be “experts” and other woes.