EXPERTS AND THE COURTS: THE DUTY TO INFORM EXPERTS OF CHANGE OF CIRCUMSTANCES: THE EXPERT’S DUTY TO INFORM THE COURT AND PARTIES OF A CHANGE OF VIEWS

We are looking again at the judgment of Mr Justice Cotter in Scarcliffe -v- Bramton Valley Group Ltd [2023] EWHC 1565 (KB)  (A copy of the judgment, on Old Square Chambers website, is available here.)  Again we are looking at the judge’s comments in relation to experts.  Here the judge was critical of the failure to inform the pain experts of the change of view of other experts, and then the expert’s failures to review their conclusions based on recent developments.

“Legal representatives bear a duty to notify an expert of any evidence which has emerged during the trial which the expert has not heard which may (and there only needs there to be a possibility) materially alter the opinion which he/she has previously expressed and ask them to reflect upon it. Further, if the experts opinion does change to ensure that it is set out in writing. In my judgment there was a clear and obvious need for Dr Rayen to consider the very significant changes in the orthopaedic evidence since he prepared his report.”

 

THE CASE

The judge was hearing a claim for damages for personal injury.   Two of the experts being called were medical experts on pain.  In the week before trial the orthopaedic experts had an (agreed) change of view on some key issues. Prior to trial the judge asked, specifically, whether this caused the pain experts to change their view.   There was no response in writing and both pain experts proposed to give evidence orally, without addressing, in writing, the most recent developments.  The judge raised the issue again before the pain experts gave evidence.

 

THE JUDGMENT

 

143. Before the pain experts were due to give evidence I raised again a matter which I had
raised before the hearing started (in an e-mail to the parties). I asked Counsel to please
remind the experts about the duty to notify the parties and the Court of any change of
opinion (see Muyepa-v-Home Office [2022] 2648 at paragraph 291). I pointed out
that it appeared to me that it was highly likely that Dr Rayen had significantly revised
the opinion set out in his reports/the joint statement given that:
(a) After Dr Rayen had prepared his reports and the joint report, the opinion
of Mr Newton Ede had changed significantly. Given that the pain
discipline is a referral, or secondary, discipline i.e. patients will usually
have had wholly organic causation for pain ruled out by e.g. an
orthopaedic consultant or a neurologist, it was surprising and
unsatisfactory that matters were not organised so that the pain experts
had sight of the joint view of the orthopaedic surgeons before they met
to discuss their views (especially given that the orthopaedic joint
statement was dated 22nd November and the pain experts report is dated
25th November). In any event in the joint statement Mr Newton Ede
radically revised his view about acceleration of degenerative change. Dr
Rayen had repeatedly relied within his three reports on Mr Newton
Ede’s original, now abandoned, opinion . Given this change both legal
teams, and certainly the Claimant’s legal team, should have asked the
pain experts to consider an addendum report or revised joint statement
within the (nearly four) months before trial.

(b) Further, the Orthopaedic surgeons recognised a week before trial that
their combined view was wrong and they now attributed the (permanent)
left leg symptoms (numbness, cramping, tingling etc) and also, as was
clarified in evidence, rectal pain (which Dr Rayen had referred to in his
reports) to degenerative change at L5/S1 which was not caused or
exacerbated by the accident; so e.g. paragraph 13 of the pain experts
joint statement was plainly wrong. Given that the revised joint view of
the orthopaedic experts was available to the parties a week before trial
(and was referred to in the skeleton arguments) there was ample time for
the pain experts to set out any altered opinion.

144. Given the content of the joint statement, the changes in the evidence obviously
significantly impacted on Dr Rayen’s analysis, (it was relatively clear how they would
impact on the opinion of Dr Edwards). The likely effect of symptoms which would
have been arisen had the accident not occurred was obviously a point that Dr Rayen
was going to be cross-examined upon given his previously expressed view30 that the
left leg symptoms were “(a) serious case and prognosis is poor”. I expressed the view
that it was obviously unsatisfactory and unfair to Dr Rayen, if he was not fully aware
of the changes in orthopaedic opinion (which should have been immediately notified
to him) and asked to give evidence without time to fully consider the issue and notify
the parties of any change in his expert opinion.

145. I found it very concerning that the intention was that both Mr Rayen and Ms Lewis
(as I shall set out in due course) would give oral evidence without adequately
addressing the obviously relevant and important changes in evidence which had
occurred since they complied their reports. I repeat what I set out in Muyepa
paragraph 291

“The sixth of the Ikarian Reefer principles and CPR 35 PD 2.5
cover the position where an expert has changed his or her view
arising as a result of matters that have occurred after they have
prepared a written report (or joint report). Importantly this
includes a change of opinion during a trial. By way of example
if as a result of lay witness evidence an expert’s view has
changed he/she should communicate this (through the legal
representatives who have instructed him/her) to the other side
without delay and when appropriate to the court. An expert
should not step into a witness box having changed his /her view
without having made this plain beforehand. If the change of
opinion is properly communicated it may alter the need for or
extent of evidence to be given.”

146. A party is entitled to know as soon as is practicable if an expert instructed by an
opposing party has materially changed his or her opinion. As with all other litigation
the Court expects the parties within personal injury and clinical actions to seek to (and
to continue through the lifetime of the Claim to seek to) achieve a consensual
resolution of the claim, or issues within the claim. This includes during a trial. A
failure to consider, address and communicate a change/development in an expert’s
opinion (if the evidence exchanged continues to be relied upon) may mean that
necessary discussions (and for potentially) negotiations either do not take place or
proceed on a fundamentally incorrect basis.

147. Dr Rayen’s evidence was to provide a striking example of a very marked change in
opinion only becoming apparent during cross-examination. Legal representatives bear
a duty to notify an expert of any evidence which has emerged during the trial which
the expert has not heard which may (and there only needs there to be a possibility)
materially alter the opinion which he/she has previously expressed and ask them to
reflect upon it. Further, if the experts opinion does change to ensure that it is set out in
writing. In my judgment there was a clear and obvious need for Dr Rayen to consider
the very significant changes in the orthopaedic evidence since he prepared his report.
His hastily prepared addendum report (prepared at my request) was inadequate and
failed to address the issue that was obviously going to be put to him when he gave
evidence. When it was given his evidence set out a radically different view from that
previously contained in his reports and I have little doubt drastically changed the
parties realistic valuations of the claim.

148. The Court is entitled to have the benefit of a carefully considered opinion of an expert
which has been shared and considered by all relevant individuals in advance of the
expert giving oral evidence. A paradigm example of what is lost is shown by the
(entirely proper) notification by the orthopaedic experts that they had changed their
views a week before the trial. The start of the process was Mr Spilsbury contacting
Mr Newton Ede to say that they had both made a mistake leading to all sides
appreciating that well in advance of trial and no time being wasted as a result.

149. Dr Rayen produced his addendum report very quickly after I had risen to allow his
position to be clarified. Unfortunately, it obviously did not fully address the impact of
the changes to the reports on his previously expressed views and still left many
obvious issues unanswered. He stated (materially):
“I understand the spinal surgeon changed his opinion on the
cause of left leg paraesthesia symptoms. Based on that, I
withdraw paragraph 172 of my report of 23rd May 2022.
My opinion is that the Claimant’s left leg numbness are not
explained by a chronic pain condition, as it has always been.
My opinion on the Claimant’s back symptoms remains the
same. The spinal surgeons as I understand it remained agreed
that the Claimant had a significant trauma injury to his back. It
remains my opinion that led to the Claimant’s chronic pain
condition which he now has. My opinion in respect of
prognosis remains the same.” (emphasis added)
The new report then added;
“I have been asked additionally whether I can deal with the side
effects of the Claimant’s pain management medications and
side effects. I am able to assist with this with reference to the
BNF.”
The new report was accompanied by three extracts (said by Mr Hunjan KC to have
been taken from the internet) of potential side effects for three drugs. Dr Rayen was
then called.

150. I asked Dr Rayen at the outset what he (as an expert) wished me to make of the
documents which had now been placed before me. He said that drugs such as those
used by Mr Scarcliffe could have side effects and he noted that Mr Scarcliffe had
some tingling and parathesia. Upon pressing him on the issue he then confirmed that
he was not suggesting that the symptoms in the legs were due to the effects of
medication. He also confirmed that he had not set out any analysis in his three reports
or the joint statement (save for the agreement reached with Dr Edwards that Mr
Scarcliffe was over medicated) the about side effects although as a pain clinician he
was very well aware of the potential issue and if he was treating a patient and he
thought any symptoms may be due to side effects of medication he would address it
e.g. by changing medication. He also confirmed that he had not undertaken any
analysis of the onset of symptoms as correlated with the drug regime. I then pointed
out an example of the dangers of broadbrush statements just on the basis of my own
speedy reading of the medical records. Mr Scarcliffe complained of sexual
dysfunction which is a recognised side effect of gabapentin (amongst the long number
of potential side-effects) and this symptom not been attributed by the orthopaedic

experts or the urology expert to any L5/S1 degeneration or other organic cause31. So
could there be a link with Gabapentin? Well any detailed consideration of the medical
records revealed that Mr Scarcliffe was complaining of erectile dysfunction, increased
frequency and lower libido by January 2018 at the latest (see notes of Dr Jonathan
Taylor). However the first discussion about starting Gabapentin was on 9th March
2018. Having explored these matters through just one example Mr Rayen conceded
that making any link between the drug regime and any apparently unexplained
symptoms was a leap. It is not a leap I was prepared to entertain a fortiori in a claim
of high value. Put simply this late evidence devoid of any adequate analysis should
not have been placed before the Court in this fashion and it represented an elephant
trap for an unwary Judge.
151. Despite the unsatisfactory position which I have outlined Dr Rayen was tendered for
cross-examined. As was in my view inevitable, he was taken to what he had said
about the left leg symptoms (taken with the rectal symptoms and urological
symptoms) and pressed on whether Mr Scarcliffe would have developed a pain
syndrome in any event.