EXPERT WITNESSES SHOULD KEEP AN OPEN MIND AND CAN PROPERLY CHANGE THEIR VIEW AS THE CASE PROGRESSES

September 15, 2022 · by · in Credibility of experts, Expert evidence, Experts

In A Local Authority v AA & Anor [2022] EWHC 2321 (Fam) Mrs Justice Lieven rejected criticism of an expert witness who had changed their view throughout the course of the case.   Experts must keep an open mind and it is wholly appropriate if they have a change of view after reviewing the matter.

” in my view Dr Saunders has done what any expert should do. She kept an open mind and conducted as thorough a review as possible of the literature before reaching her ultimate conclusion.”

THE CASE

The judge was hearing a case where there were allegations that a child had been injured by its parents.   The medical experts were all, initially, of the view that the injuries had been caused by a shaking injury. However one of the doctors changed their view and concluded that the injuries could have been caused by a low level fall.  To add to the difficulty this expert became ill.  It transpired that there is a great deal of medical controversy on these issues and numerous academic papers were placed before the judge.

THE JUDGE’S OBSERVATIONS ON THE MEDICAL EVIDENCE

The judge rejected criticism of the expert who had changed a view.  This was, rather, something experts should do if their review of matters causes them to reach different conclusions.

    1. I turn then to the medical evidence. This amounts to findings of retinal haemorrhages and subdural haemorrhages and Y’s physical presentation. There were no other physical signs of a shaking injury – no bruises and no fractures and no brain injuries. I fully accept that a shaking injury can take place without these other indicators, but their absence must be a relevant consideration in taking an overview of the evidence.
    1. In respect of the RHs and the SDHs, all the experts whose opinions I am now in a position to rely upon say that they were more likely to be caused by a shaking injury rather than a short fall. However, I heard the evidence of Dr Saunders in November and have read the papers to which she referred. Critically Dr Hogarth, although he thinks a shaking injury is more likely than a fall, does accept that a fall is a possibility.
    1. I do not accept Dr Hobbs and Professor Vloeberghs’ criticism of Dr Saunders for having changed her mind (twice) during the course of these proceedings. Although I understand their frustration, in my view Dr Saunders has done what any expert should do. She kept an open mind and conducted as thorough a review as possible of the literature before reaching her ultimate conclusion. It is obvious that this is a highly contentious field where unhelpfully litigation, particularly in the US, seems to have led to a polarised approach. However, as far as I can tell, and I rely on Dr Saunders for this, there are many reputable and independent experts who are open to the argument that there are cases where infants have suffered both SDH and RH from short falls. That is not in any sense to reject the point that those factors will often if not usually be indicators of AHT – they may well be in the vast majority of cases. But it remains important to acknowledge that there will be outlier, or unusual, cases.
  1. This is a case where it is particularly important to bear in mind the various judicial dicta referred to above about considering the unusual or unlikely cause, and not simply following the medical evidence without question. I found Dr Hogarth’s evidence very helpful in his appreciation that unlikely events necessarily happen, and there will be outliers to the normal clinical presentation. The academic literature does indicate that there are cases of young children suffering both SDH and (very infrequently) RHs from short falls. I give considerable weight to Professor Fielder’s evidence that he has never seen a case where he thought a RH resulted from a short fall. However, the literature does suggest some such cases do exist.

 

WEBINAR ON EXPERTS

On the 14th December 2022 I am presenting a webinar reviewing Expert Evidence in the Courts in 2022.  Booking details are available here. 

 

his webinar looks at decisions over the previous 12 months and the lessons that litigators and experts must learn from them.  The review includes cases where expert evidence has been disallowed, because of conduct by the expert or lawyers.  Costs orders against experts and actions where experts have been compelled to disclose all the material relied on.   The review looks across all areas of practice and is of relevance to all litigators and expert witnesses alike.

Cases to be considered include:

  • ECU Group PLC v HSBC Bank PLC & Ors [2021] EWHC 2875 (Comm) (was the expert being partial>)
  • Radia v Marks [2022] EWHC 145 (QB) (is a duty of care owed by a jointly instructed expert).
  • Davies-Gilbert v Goacher [2022] EWHC 969 (Ch).

“it is not for an expert to disregard the instructions they have received from the Court and the party instructing them and to thereby whole scale ignore evidence which does not support their opinion.”

  • Siemens Mobility Ltd v High Speed Two (HS2) Ltd [2022] EWHC 2190 (TCC) (need experts attend trial?)
  • Liverpool University Hospital NHS Foundation Trust & Dr Chris Mercier (Costs order against an expert).
  • Pickett v Balkind [2022] EWHC 2226 (TCC)  (Waiver of privilege in expert’s report).
  • Bitar v Bank of Beirut SAL [2022] EWHC 2163 (QB) (expert tending towards being an advocate).
  • Andrews & Ors v Kronospan Ltd [2022] EWHC 479 (QB) (Lawyers unduly intervening in the joint meeting process).

“It is important that the integrity of the expert discussion process is preserved so that the court, and the public, can have confidence that the court’s decisions are made on the basis of objective expert evidence. This is particularly important where, as here, the expert evidence is of a very technical nature so that the court is heavily reliant on the expert evidence being untainted by subjective considerations.”