THE APPROPRIATE STEPS WHEN A JUDGE HAS LIMITED THE SCOPE OF EXPERT EVIDENCE: COMPLY WITH COURT ORDERS IF YOU WANT TO KEEP A GOOD IMAGE
Another aspect of the judgement of Master Davison in Mustard v Flower & Ors  EWHC 846 (QB) was a decision in relation to expert evidence. The Master refused the claimant’s application to rely on amended medical reports. Those reports went beyond the scope of what was allowed under a previous court order.
“If the claimant’s legal team wished to introduce that evidence, the proper thing to have done was to have appealed the order or asked their experts to carry out their own, independent analysis of the imaging.”
The claimant brings an action for damages for personal injury. A report had been obtained by the claimant personally in which MRI images and the doctor commented on them. The Master gave permission for the claimant to rely on the images but not the comments in the doctor’s report. However the claimant’s experts, in amended reports, commented on both. The Master refused permission to rely on the amended reports.
THE JUDGMENT ON THIS ISSUE
In order to spare the claimant the cost of a transcript, I take this opportunity of recording my reasons for refusing a separate application by the claimant. This was her application dated 30 April 2020 for permission to rely on amended medical reports of Dr Allder (the claimant’s neurologist) and Dr Butler (the claimant’s neuroradiologist) commenting on a “DTI scan” of the claimant’s brain. This was a scan performed by Professor Sharp’s team at Imperial College, London, on 8 January 2019. I quote from Professor Sharp’s report of 25 April 2019:
“Magnetic resonance imaging (MRI) assessment was performed at the Imperial College Clinical Imaging Facility the Hammersmith Hospital, Imperial College London NHS Trust. A 3 Tesla Siemens Vario scanner was used. T1, T2, Flair, Susceptibility Weighted Imaging (SWI) and 64 direction Diffusion Tensor Imaging (DTI) were acquired.”
“Professor Sharp is a neurologist at the department of brain sciences within the medicine faculty of Imperial College. He has provided a brief report dated 25 April 2019 on some neuroimaging which was commissioned by the claimant’s solicitor in November 2018 and carried out on 8 January 2019. The report is titled “medico-legal neuroimaging report” and it was, at least initially, accepted to have been a medico-legal instruction. At the hearing, Mr Grant told me that that was an error and that the instruction had been paid for by the claimant from her personal funds – its primary purpose being clinical. The imaging has been reviewed by Dr Butler, the claimant’s neuroradiologist, in a letter dated 15 July 2019. It has also been reviewed by Dr Stoodley, the defendant’s neuroradiologist, in letters dated 29 July 2019 and 21 August 2019.
The report from Professor Sharp is a medico-legal report in both form and substance. The contrary does not seem to me to be arguable. Given that the claimant already has an expert neurologist, Dr Allder, I have no hesitation in excluding Professor Sharp’s report. However, it would be artificial to exclude the imaging itself which the instructed neuroradiologists have considered and commented upon, and likewise their reports. However unsatisfactory the commissioning of the imaging may have been, this is another genie that cannot easily be put back into the bottle.”
Unfortunately, that is precisely what happened. The claimant’s neurologist and neuroradiologist were supplied first with Professor Sharp’s report with only the “Conclusion” section redacted. Then, following protest by the defendant’s solicitors, they were provided with the imaging plus what Dr Allder has described as “the analysis of fractional anisotropy of a number of white matter tracts”. This analysis took the form of a table or figure headed “Diffusion tensor imaging assessment of diffuse axonal injury”. This figure had been lifted from Professor Sharp’s report. As described in the report (and at more length in a paper in the Journal of Neurology, to which I was also taken), in order to produce the figure it was necessary for Professor Sharp to carry out a sophisticated process of analysis. I will set out just the first sentence of the description of the analysis in the report:
“Diffusion tensor imaging (DTI) was analysed using the FSL diffusion toolkit (Smith et al, 2006) and an advanced Diffusion Tensor Imaging Toolkit (DTI-TK) designed to optimize spatial normalization and atlas construction for the examination of white matter morphometry (Zhang et al., 2006).”
I excluded this evidence and ordered that references to the body or substance of Professor Sharp’s report of 25 April 2019 be redacted from the joint statements of the experts. I did so because the ruling that I gave in October 2019 clearly and explicitly excluded Professor Sharp’s report. The only qualification was that I allowed reference to the “imaging”. What was supplied to the claimant’s experts was not only the imaging, but also the fruits of analysis of that imaging carried out by, or under the control and direction of, Professor Sharp. That was a clear breach of my order. If the claimant’s legal team wished to introduce that evidence, the proper thing to have done was to have appealed the order or asked their experts to carry out their own, independent analysis of the imaging.”