THE EXPERT’S DUTY TO GIVE A RANGE OF OPINION: A DECISION NOT TO DO SO “BORDERING ON ARROGANCE”

Expert’s have a mandatory duty under the rules to give a range of opinion for their advices.  I am grateful to Gary Smith from Prince Evans & Co for sending me a copy of the judgment of HHJ Belcher in Crosby -v- Wakefield Metropolitan District Council, a copy of which is available here Julie Crosby v Wakefield MDC * .   The expert’s practice of not giving a range of opinions is described as “bordering on arrogance”.  However this was far from the only criticism raised of the defendant’s expert…

 

His response was that he usually gives the range of opinion in any joint statements, adding that he had been criticised before for failing to give a range of opinions, and accepting he should give more ranges of opinion.  In my judgment his attitude was bordering on arrogance. Having previously had it pointed out to him that he should give more ranges of opinion, he apparently carries on as before and sees no need to change his practice in this respect.  That shows a disregard for the proper and just disposal of proceedings.  He also commented at one point in his evidence that he had no reason to expect this matter to come to court, as if that justified a less complete approach to matters.”

PRACTICE DIRECTION 35

Practice Direction 35 3.2 gives details of the matters that an expert’s report must contain. One of these mandatory items is

“(6) where there is a range of opinion on the matters dealt with in the report –

(a) summarise the range of opinions; and

(b) give reasons for the expert’s own opinion;

 

THE CASE

The claimant brought an action for personal injuries arising out of tripping over a pothole. She was successful on liability. There were disputed between the parties’ respective doctors as to the extent of the injuries concerned and the need for care.

THE JUDGMENT ON THE EXPERT EVIDENCE

The judge commented that there had been a change of mind by the claimant’s expert in relation to the care needed.

49. In cross-examination Mr Madan was asked why he changed his mind about the level of care. He said that he had made a mistake and was considering 1 foot in isolation. It’s right to point out that in the first joint report the experts previously agreed that the requirement for surgery to the right toe was not as a consequence of the index accident, something that Mr Madan also changed in the second joint report and a matter I shall come back to later.  However it is relevant in that his explanation for changing his mind about the level of care was that he was considering 1 foot in isolation.   He said this was his mistake and he apologised for it.  He accepted in cross-examination that he knew at the time of the first joint report that Mrs Crosby had suffered injuries to both feet. He accepted in cross-examination that after the first joint report he had had a discussion with counsel.  It was brought to his notice that Mrs Crosby had suffered pain and continuing difficulties for longer than what had been suggested.   He maintained that the reason he changed his report was because he was given other facts. He said he did not think deeply enough that it can be quite painful and that therefore a longer level of care would be needed, particularly with both feet being involved.   I asked him if it was fair to say that he knew this was a bilateral injury but that he had not thought things through properly in his first report and he agreed with this.   I found that answer concerning.
50. However, I had far greater concerns about the evidence given by Mr Fagg for the Defendant. It was suggested to Mr Fagg that it was important that the opinion given to the court should be independent and objective and that he should not advocate in any way.  He agreed, adding “…..and I shouldn’t change my opinion because my legal team want me to”, a clear indication that he was of the view that that was what Mr Madan had done, despite Mr Madan’s explanation. There is an obvious difference between changing your opinion genuinely based on having overlooked certain facts which are brought to your attention by the legal team, and changing your opinion because the legal team want it to be different. Mr Fagg agreed that he had said to Mr Madan that he was sorry that Mr Madan had been hung out to dry by his legal team.  This was after Mr Madan had left the witness box, and obviously before Mr Fagg gave his evidence.  I do not know whether it was said in the hearing of the legal team or whether Mr Madan reported it to them. However, in my judgment, it is plainly something that was inappropriate and should not have been said. Mr Fagg said that he was embarrassed as Mr Madan is a friend of his and he felt he had been set up by his legal team. Mr Fagg went further and said he was surprised and disappointed because the second joint statement was forced out of Mr Madan.
51. In the course of cross-examination a fair amount of criticism was levelled at Mr Fagg, and in my judgment properly so. Asked about an incomplete quotation from an operation note, and in particular why he failed to include any reference to what the operating surgeon did to Mrs Crosby’s right toe (an issue I shall return to later), Mr Fagg initially suggested that he was using a separate written operation note and not the typed up version he’d been referred to. The written operation note was put to him and he had to accept that he was in fact quoting from the operation note counsel had put before him.  Asked why he omitted the details in relation to the right toe, he said it was an oversight and “I probably switched off when I got to the point where it said the skin was closed”.  I consider that an extraordinary answer from a consultant providing an expert report to the court.
52. He was also taken to a letter he wrote on 15/3/18 setting out entries from Mrs Crosby’s medical reports which he considered to be of potential relevance in the case (CB483). At CB486 there are two entries, one dated 6/11/14 dealing with “cervicalgia, pain in the neck”, and the second dated 12/11/14 which does deal with a fracture of the left great toe and work related stress.  He was taken to the medical records at F2614 and F2616 and he had to accept that these entries related not to the Claimant, but to a ***** Crosby, aged ** who is a ******* .  He accepted that it was obviously wrong to include these records.  It was suggested to him this was sloppy work and he blamed the sheer volume of the records adding “The Claimant’s solicitors sent this to me”, and “On occasions I lose the will to live”.   I do not consider the fact he received the records from the Claimant’s solicitors, in any way absolves him or affects his responsibilities as an expert.  Whilst anyone can make mistakes, he included these particular entries because he considered them relevant.  It was obvious on the face of these records that they did not relate to this Claimant.  I was concerned by Mr Fagg’s general attitude towards this.
53. It was also suggested to Mr Fagg that he was advocating for the Defendant rather than leaving matters to the court. In particular at B489 in a letter of 9 April 2018 Mr Fagg reported to the Defendant solicitors and referred, amongst other things to Mrs Crosby having been accused of a severe breach of security in a letter dated 12 June 2013, in which it was recommended that she be given advice and guidance but that if any further instances occurred, it would lead to disciplinary action. In the same paragraph he refers to her failing to engage with occupational health services.  Asked what possible relevance these matters had, he said it was relevant to the question of whether she left the prison service because of her orthopaedic injuries or whether it was as a result of her not engaging with occupational health services and that her orthopaedic injuries were the final straw in her wanting to leave anyway, or possibly a combination of those matters.
54. It was pointed out to Mr Fagg that nowhere in that letter does he address reasons for Mrs Crosby leaving, orthopaedic or otherwise and that all he has done is to extract two negative entries, which are potentially prejudicial, to the exclusion of all other items. His response was that these little items suggest that there might be more to this than the orthopaedic injuries and he was just trying to help the court. Unsurprisingly these issues were taken up in the defence skeleton, it being suggested that she left for reasons other than her orthopaedic injuries, but by the time of closing submissions Mr Nicholson did not pursue this and nor could he based on the evidence.   Mr Fagg made the point that the occupational health assessments are all there to be seen. I agree and, therefore, it was unnecessary for him to select negative bits from those records. The relevance of those records, in the context identified by Mr Fagg, should more properly have been left to the advocates and lawyers in the case, and in my judgment Mr Fagg was guilty of seeking to be an advocate for the Defendant in the case.
55. He was also criticised for expressing an opinion that Mrs Crosby would not have taken her current job with the post office where she walks approximately 8 to 12 miles a day, five days a week if she was experiencing the level of symptoms she claims (B513). This is perhaps closer to the line in that it might be reasonable to comment on whether the level of symptomology claimed is consistent with that type of work.  However, Mr Fagg went further in the witness box and said that with that level of claim symptomology, he would not expect Mrs Crosby to apply for a job as a postman, adding that she had worked as a carer and could live off that (despite the fact that her work as a carer was a zero hours contract).  He further added that he would not have expected her to take a job as a postwoman even if was the only job available in the whole of the UK and that she should have gone onto disability benefits, as, according to Mr Fagg, they are so easy to claim.  This was extraordinary, and plainly beyond his remit as an expert witness in this case.
56. In cross-examination Mr Fagg agreed that an expert should give a range of opinion where there is one. It was put him that there is not a single area in his reports for this case where he gives a range of opinion.  His response was that he usually gives the range of opinion in any joint statements, adding that he had been criticised before for failing to give a range of opinions, and accepting he should give more ranges of opinion.  In my judgment his attitude was bordering on arrogance. Having previously had it pointed out to him that he should give more ranges of opinion, he apparently carries on as before and sees no need to change his practice in this respect.  That shows a disregard for the proper and just disposal of proceedings.  He also commented at one point in his evidence that he had no reason to expect this matter to come to court, as if that justified a less complete approach to matters.
57. Mr Ramsay on behalf of the Claimant submitted that when Mr Fagg described the level of care as extraordinary from his first report, he had jumped in too early with a view, and was plainly batting for the Defendant. Mr Fagg describes the amount of care as extraordinary for someone who suffered a fracture of two toes, although he does add that it would be important to see medical records before considering whether or not the amount of care claimed is reasonable (CB474).  Mr Ramsay submitted that Mr Fagg was skating close to the role of an advocate rather than an independent expert.  I accept that submission. There is an obvious difference between commenting that the amount of care seems high but may be justified once there has been access to the medical records, and reaching what appears to have been his conclusion at that stage that the amount of care claimed is extraordinary, a conclusion he has subsequently maintained and declined to resile from.
58. Whilst I had concerns about the circumstances in which the joint statement of the expert had to be revisited on two separate occasions to enable Mr Madan to alter his previous opinion, having seen both experts in the witness box, I consider that Mr Madan is the more reliable witness. He accepted he had made errors he should not have made, but he nevertheless maintained that it was his own opinion which was altered as a result of his own error.  Having made the error he said it was important to correct it.  I am not satisfied that Mr Fagg was giving a truly independent view to the court.
Pain, Suffering and Loss of Amenity
68. There is dispute in this case as to whether the operation on the second right toe in February 2015 was as a result of this accident or was referable to an earlier PIP joint fusion in that toe. This is another issue upon which Mr Madan changed his views between the first and second joint reports. In the first joint report, the experts agreed that the requirement for surgery to the right toe was not as a consequence of the index accident (CB530).  In the second joint report, Mr Fagg remained of that view, but Mr Madan had altered his view saying that he now feels the requirement for surgery was as a consequence of the accident.  From the witness box Mr Madan explained that this was another error on his part, and that he had not understood that the PIP fusion had taken place when Mrs Crosby was only eight years old, and that she had had no difficulties with it in the meantime.  I find it surprising that somebody of Mr Madan’s experience should not have established that fact before agreeing in the first joint report that the operation had nothing to do with the accident. However, I accept his explanation and apology for the error.
69. Mr Fagg was forced to concede that he gave no reasoning at all for saying that the requirement for surgery on the right second toe did not occur as a consequence of the index accident in his letter dated 9 April 2018 (CB489- 450). This was another example of where he gave no reasoning for his opinion, although he sought to give that reasoning from the witness box. His interpretation of the x-rays was that the previous PIP fusion had resulted in a malunion so that the toe was angulated and that the lump for which the osteotomy was carried out was at the site of the previous fusion and, therefore, nothing to do with the accident.   He then faced the obvious difficulty that this fails to take into account other possible factors which might suggest a different conclusion such as the PIP fusion having happened when Mrs Crosby was age 8 and with no difficulties for a period of over 35 years.   So not only did he not give his reasoning in the first instance, nor did he consider the possible range of opinion on this issue. 
70. For reasons I have already set out, I prefer the expert evidence of Mr Madan to that of Mr Fagg. I have no hesitation, therefore, in accepting that the surgery to the right second toe in February 2015 was as a result of the index accident.  There is no dispute that the surgery to the left big toe was as a result of the accident.
71. There is a dispute about Mrs Crosby’s ongoing symptoms in the form of significant pain and stiffness in her toes. Mr Fagg is of the view that these claimed symptoms are disproportionate to what he would expect and are inconsistent with her employment history after she left the prison service.  He points to the fact that she applied to join the police force and now works as a postal worker, walking 7 – 12 miles per day.
72. Similarly there is an issue about the hip and lower back pain which Mrs Crosby says she developed in 2017. Mr Madan believes that Mrs Crosby would have walked on the lateral border of her foot to protect the damaged big toe and that this may have affected the biomechanics of the knee, hip and back. He considers it would take several months of walking abnormally before distant joints would become symptomatic. Accordingly, he feels that the hip pain is secondary to the abnormal walking on the left foot and is therefore attributable to the accident. Importantly, he considers that with intermittent rest, good orthotic treatment in the form of insoles, good footwear and physiotherapy, Mrs Crosby’s symptoms should resolve over a period of 2 to 2 ½ years and she should recover (CB 466, paragraph 7.4). Mr Madan was surprised to learn that Mrs Crosby is not using specialist orthotic insoles.
73. Mr Fagg disputes that Mrs Crosby has any altered gait, and says that any hip or back pain is nothing to do with the accident. However, I have the benefit of an expert Mark Elmer, a principal orthotist.  His conclusions are that Mrs Crosby has an altered gait as a result of the injuries and that on the left side she is transferring weight to the lateral aspect of the foot, as evidenced by callous, in an attempt to reduce loading forces/pain through the injured left big toe (CB554).  In cross-examination Mr Fagg was asked whether he would agree that the opinions of Mr Madan and Mr Elmer come within the range of possible opinions on gait, and whilst he accepted that there is a range of opinions he simply stated “I think their opinion is flawed”.  I have no hesitation in accepting and preferring the evidence of Mr Madan and Mr Elmer that Mrs Crosby has an altered gait as a result of this accident, and I reject Mr Fagg’s bald unreasoned assertions to the contrary. 

NOTE

*I have removed from the transcript a reference to a third party with a similar name to the claimant whose notes were referred to by the defendant’s doctor. That third party was not involved in this action in any way and it appeared to me to be wholly inappropriate any details were given that could identify her.