TRIAL JUDGE’S REJECTION OF EXPERT WITNESS CREDIBILITY UPHELD BY THE COURT OF APPEAL: IF AN EXPERT KNOWS A PARTY THEY SHOULD SAY SO

In EXP -v- Barker [2017]  EWCA Civ 63 the Court of Appeal upheld the trial judge’s rejection of the evidence of an expert witness.

“the starting point is to identify what the judge decided. He considered that the witness had so compromised his approach that the decision to admit his evidence was finely balanced, and that the weight to be accorded to his views must be considerably diminished. In my view he was fully entitled to take that view. Indeed, had he decided to exclude Dr Molyneux’s evidence entirely, it would in my view have been a proper decision. Our adversarial system depends heavily on the independence of expert witnesses, on the primacy of their duty to the Court over any other loyalty or obligation, and on the rigour with which experts make known any associations or loyalties which might give rise to a conflict. Dr Molyneux failed to do so here, despite an express direction to that effect. Indeed, the omission of mention of papers co-authored with Dr Barker points in the other direction.”

KEY POINTS

• A trial judge was entitled to reject the evidence of an expert witness who had failed to disclose a close professional relationship with the defendant.
• The trial judge had applied the correct test and was entitled to make a finding on the facts.
• The judge would have been entitled to exclude the evidence altogether.  He was correct to take the view that the value of the defendant’s expert evidence was severely diminished.

THE CASE AT FIRST INSTANCE

The judgment at trial was looked at in an earlier post.   A clinical negligence case relating to a failure to a failure to identify and to report the presence of an aneurysm in her brain in 1999.  The only substantive issue at trial was

“whether the MRI scan in 1999 did indicate the presence of an aneurysm which a reasonably competent neuroradiologist would have identified and reported”

It transpired that the expert called on behalf of the defendant had a close professional relationship with the defendant.  This emerged only in cross-examination at trial.

“53. Dr Molyneux had trained Dr Barker during his seven years of specialist radiology training, and in particular had trained him for two and a half years as a registrar and senior registrar in neuroradiology, including the particular area of interventional radiology in which Dr Molyneux specialised and in which Dr Barker had a special interest.  It is clear that they had worked together closely over a substantial period.  They had written together a paper for the 14^th International Symposium on radiology, a paper not shown on Dr Molyneux’s list of publications, and Dr Molyneux told the Court that they might have co-operated on other papers which he could no longer specifically recall.  Dr Molyneux helped Dr Barker to obtain foreign placements:  Dr Barker had been a Visiting Fellow at the Department of Neuroradiology, University of California at San Francisco in February and March 1990; and William Cook International Fellow, Department of Neuroradiology, Sahlgren Hospital, Gottenberg, with Dr Barker taking care, in this instance, to note in his CV that this enabled him to gain further practical experience “under the supervision of Dr P Svendsen”.  Dr Barker accepted that Dr Molyneux had guided and inspired his practice, and Dr Molyneux had helped Dr Barker become a consultant in Southampton.  They had also been officers together on the committee of the British Society of Radiologists, Dr Barker having been Treasurer at the time when Dr Molyneux, being a committee member, was nominated President.

54. It also emerged that Dr Barker had suggested that Dr Molyneux should be a defence expert. He had first been asked in cross examination whether he had chosen Dr Molyneux as an expert, which he denied, and he had had to be prodded with a further question to elicit the full picture.”

The judge held that the defendant’s expert evidence was admissible but the credibility of that evidence was severely undermined.

1. Where the core issue in a case turns, as it does here, on the court’s ability to evaluate the competing and finely balanced medical judgements of rival experts, the court’s confidence in the independence and impartiality of the respective experts must play an important role. I have to say, with considerable regret, that by reason of the matters set out earlier in this judgment my confidence in Dr Molyneux’s independence and objectivity has been very substantially undermined. On the other hand I have complete confidence in the independence and objectivity of Dr Butler, and I much prefer to accept his judgement, formed on the basis of his great experience and skill, that (i) a competent neuroradiologist would have been considerably troubled by the relevant images from the 1999 MRI scan; and (ii) would not have concluded that those images could be prudently and adequately explained by “normal brain anatomy”, contrary to Dr Monlyneux’s view; and (iii) would have concluded that the images did show the presence of an aneurysm.

THE APPEAL

The defendant appealed. That appeal was unanimously rejected.

 Lord Justice Irwin stated:

1. “I have already made clear that I consider the judge had well in mind the Bolam test, properly formulated.

2. In considering Grounds 3 to 5, the starting point is to identify what the judge decided. He considered that the witness had so compromised his approach that the decision to admit his evidence was finely balanced, and that the weight to be accorded to his views must be considerably diminished. In my view he was fully entitled to take that view. Indeed, had he decided to exclude Dr Molyneux’s evidence entirely, it would in my view have been a proper decision. Our adversarial system depends heavily on the independence of expert witnesses, on the primacy of their duty to the Court over any other loyalty or obligation, and on the rigour with which experts make known any associations or loyalties which might give rise to a conflict. Dr Molyneux failed to do so here, despite an express direction to that effect. Indeed, the omission of mention of papers co-authored with Dr Barker points in the other direction.

3. Moreover, there was good reason for doubting his approach to the problem in hand. He knew that his neurosurgical colleague was relying on research which was highly criticised. Dr Molyneux was a committee member of the ISUIA. As the judge observed, Dr Molyneux knew the study had been inaccurately described by Mr Byrne, and knew that evidence might well be given which, as the judge described it, “was seriously deficient and misleading”. Moreover, it was in my judgment an inadequate explanation from Dr Molyneux to say this arose from the neurosurgical evidence, and was no business of his. Because of the controversial nature of the paper, and Dr Molyneux’s position in the organisation associated with the research, it was entirely possible that he might himself have been cross examined about it.

4. In circumstances such as those arising here, the scrupulous expert in Dr Molyneux’s position should be pointing out the problem to the legal team well ahead of trial. No doubt that will usually be done in privileged communication. In many instances, a Court will be cautious in drawing inferences for that reason. However, on the facts of this case, the judge found that Dr Molyneux “did nothing”: see paragraphs 62 and 63. Mr McCullough made no submissions to us in respect of that conclusion.

5. Dr Molyneux’s case was that there was no aneurysm in 1999. Yet he appears to have given no explanation as to what is otherwise an impressive coincidence. Even allowing for some disagreement as to the precise angle or direction of the supposed tortuosity on the 1999 scan and the precise position of the aneurysm, given that it was common ground the 1999 imaging was not of the resolution or quality to be found in the later imaging, and that on any view, the aneurysm was larger than any defect in 1999 (thus affecting more of the wall of the artery), it was striking that Dr Molyneux had no convincing explanation addressing this coincidence. This point clearly was of significance for the judge. He was fully entitled to accept the analysis of Dr Butler, as he did in paragraphs 75 to 77 of his judgment.

6. Moreover, it is clear that the judge simply did not feel able to rely on Dr Molyneux’s evidence as establishing that a responsible body of neuroradiologists would have failed to refer the Respondent. In my view he had no obligation to do so. The Respondent succeeded in establishing Bolam negligence in the conventional way. This was not one of those “rare cases” where a Claimant was driven to show that established medical practice was unreasonable. The judge had a considerable body of evidence, firmly expressed by those with proper expertise, to support both the presence of an aneurysm in 1999, and the proposition that any responsible properly qualified neuroradiologist should and would have referred the Respondent for further investigation on the basis of the 1999 MRI scan.

7. This case turns on the facts. The judge rejected Dr Molyneux’s evidence on both key issues. He was fully entitled to do so. I would dismiss the appeal.”

   RELATED POSTS

• The dangers of relying on expert evidence
• The interchange between lawyers and experts: a difficult issue
• Experts and facts: it is all in the rules.

• The role of the expert witness in litigation: Supreme Court Guidance
• Expert reports: too long and not much use.
• More on experts: non-compliance with the rules taints the evidence badly
• The credibility of witnesses: joint meetings and overreaching experts: a case to point.
• Over eager experts just do not help: they hinder and harm the case of those who call them.
• Beware the expert evidence who “lectures” the court (and tells the judge who to believe).
• Expert evidence about the veracity of witnesses: well, its probably a waste of time.
• An expert must disclose details of professional relationship with a party otherwise the consequences can be dire.
• Irrelevant evidence, inferences and “forgery”: evidential issues in a High Court case.
• Principles of mitigation of loss & the credibility of expert witnesses.
• I didn’t mean it when I signed the joint report: what happens when experts change their minds?
• Expert evidence: the expert’s role: seeing the wood for the trees.
• Cross-examining expert witnesses: hints, tips and links.
• Experts going on a frolic: a family law case where the expert witness was “thoroughly unhelpful”.