EXPERT WITNESS GIVEN “NO WEIGHT AT ALL”: FAILURE TO DISCLOSE A CONFLICT OF INTEREST

August 24, 2017 · by · in Civil evidence, Expert evidence, Experts

There are some interesting passages in the judgment of David Stone (sitting as a Deputy High Court Judge) in Technomed Ltd & Anor v Bluecrest Health Screening Ltd & Anor [2017] EWHC 2142 (Ch). Here we look at the judgment in relation to one of the experts.

THE CASE

The claimant brought an action for copyright infringement.  Both parties called expert evidence. The judge considered the evidence of one of the Defendant’s experts.

THE JUDGMENT ON EXPERT EVIDENCE

Professor Harry Mond
    1. Professor Mond is a Specialist Physician in the Department of Cardiology at the Royal Melbourne Hospital and medical director of Cardioscan Pty Limited (“Cardioscan”), a company which provides ECG monitoring services. He was presented as an expert witness. He gave his opinion on Technomed’s materials in a brief six paragraph witness statement. Professor Mond’s cross-examination was hampered by technical difficulties that resulted in a planned video-link with Australia being substituted for by use of an ordinary mobile phone on speaker placed in the middle of the courtroom. Whilst this was by no means optimal, I am satisfied that Professor Mond’s cross-examination proceeded in a satisfactory manner, and neither Mr Hill nor Ms Heal suggested otherwise. However, early in cross-examination, it became apparent that Professor Mond’s company Cardioscan was in commercial discussions with the second defendant, Express. When asked, Professor Mond immediately, and quite properly, agreed that he had a common interest with one of the defendants in this case. I was told from the bar table, and I accept, that this was the first Ms Heal had heard of it. It also became clear in cross-examination that the manner in which Professor Mond was instructed as an expert was unusual, and not as set out in his written report. His written report states that he was instructed by the defendants’ solicitors, and sets out at paragraph 6 a typical declaration under Part 35, including a statement “I know of no conflict of interest of any kind”. When questioned, it became apparent that Professor Mond’s instructions had in fact come from an officer of Cardioscan and two members of the board of that company, not from the defendants’ solicitors. He was provided with some materials, and, if there was any explanation of those materials it was, in his words, “extremely brief and of no real help”. He then prepared a letter, which took him half an hour. That letter was later turned into his report.
    2. Both Mr Hill and Ms Heal addressed me in detail in closing submissions on Professor Mond’s evidence. Mr Hill described Professor Mond’s evidence as “wholly valueless” for the reasons including those I have set out above. Ms Heal explained that Professor Mond had been instructed for some time as an expert witness in the counterclaim. She submitted that it was open to me to find that Professor Mond’s evidence was tainted by the issues I have identified, and that it would now be inappropriate for Professor Mond to give expert evidence in the counterclaim. Nevertheless, she submitted that I ought to rely on Professor Mond’s written and oral evidence in this part of the case. She referred me to page 1098 of the White Book and the cases cited there, and, after the close of the trial, to The Governors and Company of the Bank of Ireland and Anor v Watts Group PLC[2017] EWHC 1667 (TCC).
    3. In National Justice Companie Naviera SA v Prudential Assurance Co Limited (The “Ikarian Reefer”) [1993] 2 Lloyd’s Rep 68, Cresswell J summarised the duties and responsibilities of experts. Relevantly, he emphasised the need for expert evidence to be and to be seen to be the independent product of the expert. Here, Professor Mond was put forward as an independent expert when in fact a company of which he is medical director was in commercial discussions with Express, the second defendant. This was not a situation where the conflict of interest was disclosed early in proceedings so it could be dealt with in advance – the conflict only became apparent in cross-examination. Whilst I am sure Professor Mond was doing his best to give honest and frank evidence, having not disclosed the fact of his company’s involvement with Express, it cannot be said that he can be seen to be independent of the parties. Further, the situation was exacerbated by the manner in which Professor Mond’s report was commissioned. On his own evidence, he was instructed by an officer and two board members of Cardioscan, the very company in commercial discussions with Express. He was clearly not properly instructed under Part 35. He wrote a letter that was later turned into a witness statement, appending a statement of independence that turned out not to be accurate. The report also states that Professor Mond had read Part 35. This, too, turned out not to be true, although Professor Mond did say that Part 35 had been explained to him.
    4. As I was preparing to provide this judgment in draft to the parties’ representatives, I received a letter from the defendants’ solicitors raising two additional points which had not been made during the course of the five day trial, in each case because I was told that they had only recently come to the solicitors’ attention. Put shortly, the matters are:
i) That Professor Mond’s company, Cardioscan, in addition to having a commercial relationship with one of the defendants also has a relationship with Technomed; and
ii) That Mr Hashemi had inappropriately contacted Cardioscan after Professor Mond had given evidence.
Shortly after receiving this correspondence, which had quite properly been copied to Technomed’s solicitors, I received correspondence from the latter rebutting the two allegations made. I deal with each briefly in turn.
    1. The defendants now claim that in addition to Cardioscan’s relationship with Express, Cardioscan also has a relationship with Technomed. I was provided with an undated Non-Disclosure Deed between Cardioscan and Technomed, apparently signed on behalf of Technomed by Mr Hashemi. I was also provided with an undated Non-Disclosure Deed in similar terms between Cardioscan and Express. The defendants’ position, set out in their solicitors’ letter, is as follows:
“it is strongly felt that this matter should have been brought to the attention of the Court. It is submitted that if Dr Mond’s company had a business relationship with both the Claimants and the Second Defendant, then this effectively neutralises any alleged bias…It is our submission that this relationship between the Claimants and Cardioscan Pty Limited is something that should be taken into account very carefully when considering Dr Mond’s evidence and the allegations that it was potentially biased.”
    1. In response, Technomed’s solicitors recited on instructions their understanding of the relationship between Technomed and Cardioscan. An approach was made by Cardioscan to Technomed in July 2016, two conversations took place, and Cardioscan was informed on 14 September 2016 that Technomed did not intend to proceed with the discussions. Technomed therefore denies any existing business relationship between it and Cardioscan.
    2. I do not accept the defendants’ submission that Professor Mond’s company’s brief discussions with Technomed “neutralise” the bias I have found above. One of the problems with Professor Mond’s evidence is that he cannot be seen to be independent of the parties – an independent expert appointed to assist the court on matters within his expertise. Having relationships with both parties (if that were the case) does not make him more independent than his having a relationship with one party. He disclosed neither relationship, and, indeed, to the contrary, gave a sworn statement as to his independence from both sides.  I do not consider that this new information changes the assessment I have set out above.
    3. As to the second allegation of witness intimidation and/or interference, I have been provided with an email from Ms Hashemi to Jeremy Steele of Cardioscan. That email reads in full:
“Dear Jeremy
Perhaps you might want to read the attached and explain Professor Mond’s evidence that he gave today. The contents raise a number of issues.
Best wishes
Mark”
    1. The defendants’ solicitors say that this was “highly irregular and could be construed as intimidation and/or interference with a witness”. In response, Technomed’s solicitors deny “foul play”. They say:
“We have been informed by Mark Hashemi of our client that, following the revelations at day 4 of the trial during Dr Mond’s evidence, he wrote to Mr Steele with the intention of politely reminding him and Cardioscan of their duties of confidence under the NDA. The Court has seen a copy of this email, and we can confirm that there has been no response. It is not to be taken as evidence of a continuing relationship, but instead the continuance of the executed NDA.”
  1. I do not need to comment further on Mr Hashemi’s email other than to say that it does not alter the position I have set out above in relation to Professor Mond’s evidence. I have held that Professor Mond was not independent, and the email from Mr Hashemi does not make him so. If allegations of impropriety are to be made against Mr Hashemi’s conduct (and I am by no means inviting them), then they should be made at the appropriate time and in the appropriate way.
  2. In conclusion in relation to Professor Mond, Ms Heal accepted at trial that it would not be proper for Professor Mond now to give expert evidence in the counterclaim. I do not see any basis for drawing a distinction between that evidence and the evidence he has given in this trial. Nothing in the post trial correspondence changes that. I therefore attach no weight to Professor Mond’s evidence.
  3. If I am wrong in this, I would add that I do not think it matters in this case. As Mr Hill put to me in opening (that is, before Professor Mond’s cross-examination), Professor Mond’s evidence did not address sufficiently specifically or accurately the issues before me. Even if the evidence had been properly given, it would not have assisted me.

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