WHEN AN EXPERT HAS “LOST ALL INDEPENDENCE AND OBJECTIVITY” – AND ADMITS SO IN COURT

There are many interesting aspects of the judgment of HHJ Melissa Clarke (sitting as a judge of the High Court) in Wilson v Ministry of Justice [2024] EWHC 2389 (KB). Here I want to concentrate upon the judgment relating to one expert witness. The judge found that the expert was not fulfilling his role as an independent adviser to the court – and the expert agreed (although later tried to retract that admission).

“When you look at that document [being his report] – that is you losing independence and losing objectivity, isn’t it?” to which Mr Kumar replied “That is correct. I agree.” I then asked Mr Kumar whether he understood that he had just accepted that he had not provided independent and objective evidence in accordance with his Part 35 duties to the Court, and he said that he did.”

WEBINAR – EXPERTS IN THE COURTS IN 2024 11th DECEMBER 2024

On the 11th December 2024 I am giving a webinar reviewing the key cases and comments on expert evidence throughout the year (this is another hour long webinar that could easily be extended to last a whole day).

Matters to be considered include:

• Experts reporting outside their expertise
• Experts in fundamental dishonesty cases
• Compliance with the rules
• Conduct and alleged misconduct.

Booking details are available here. 

THE CASE

The claimant suffered serious injury when he was attacked by a fellow prisoner.  The defendant admitted negligence.  The claimant’s injuries were life threatening and life-changing.   There were seven different disciplines of expert at the trial on damages.

THE EVIDENCE OF THE DEFENDANT’S SPINAL EXPERT

The judge was considering the evidence of the spinal experts.  She did not accept the evidence of the defendant’s expert, was given in accordance with CPR 35.  What is more the expert in question agreed with her.

1. 1. I found Mr Kumar to be a partisan witness who, unusually, agreed quite early on in his cross-examination by Mr Mooney with the contention that he had lost all independence and objectivity in this case. He initially agreed that part of his evidence (that he did not find Mr Wilson to have any balance or weakness issues) was wrong, and it was put to him by Mr Mooney that it showed he had a lack of objectivity and was advocating for the Defendant. Mr Kumar replied “I agree. I have said he had impaired balance previously“. I asked Mr Mooney to put his point again to clarify what Mr Kumar was agreeing to, and Mr Mooney asked very clearly, “When you look at that document [being his report] – that is you losing independence and losing objectivity, isn’t it?” to which Mr Kumar replied “That is correct. I agree.” I then asked Mr Kumar whether he understood that he had just accepted that he had not provided independent and objective evidence in accordance with his Part 35 duties to the Court, and he said that he did.

1. 1. Although Mr Kumar sought to resile from this in re-examination, saying “I have tried to be an independent expert, I realised I made a mistake in talking about balance. I do not believe I have lost objectivity. I believe I have been an independent expert in my duty to the Court”, I am satisfied that his earlier answers were the true and correct ones. Mr Mooney submits that Mr Kumar would say anything to slash the value sought by Mr Wilson in this case and although I would not put it in quite those terms, I am satisfied that Mr Kumar said and wrote quite a lot which was not justified on the evidence, or which was directly contradicted by the evidence, or by which he trespassed outside his area of expertise and/or into my judicial functions, or which amounted to argument and advocacy, and he did so because, in my judgment, he had lost sight of the fact that his first duty was to the Court, and was actively seeking to influence the Court to make a lower award to Mr Wilson than that which is justified.

1. 1. A fairly full but not complete list of problematic evidence given by Mr Kumar includes the following:

i) Mr Kumar assessed Mr Wilson as having a “motor score of 100/100 (normal) with mild sensory impairment”, and so “at the better end of T10 ASIA D incomplete paraparesis” despite having seen the physiotherapists’ reports by the time of the joint statement, and accepting in cross-examination that:

a) His only observation of Mr Wilson walking was “a couple of metres” from the front door to the lounge of his small flat;

b) He did not observe his outdoor mobility or see him shower, bath, get in or out of his car, or do any walking which made him fatigued;

c) He accepted that Ms Keech, the Defendant’s expert physiotherapist, had made an objective assessment of Mr Wilson on 20 March 2023 in which she assessed him as tending to use furniture and walls for support, and that on an ongoing basis he may use walls and furniture to walk indoors on bad days and not need to do so on good days;

d) He deferred to Mr Wilson’s physiotherapist in respect of Mr Wilson’s outdoor mobility, and accepted that the videos of Ms Bochkoltz’s outdoor assessment showed that Mr Wilson stopped three times for a rest, which meant that Mr Wilson had a then-current need for a wheelchair or scooter for outdoor mobility;

e) He had failed to note in his report that Ms Bochkoltz found in her outdoor assessment that Mr Wilson’s spasticity level increased as he mobilised, despite:

i) accepting this was not uncommon in patients with incomplete paraplegia; and

ii) accepting her finding.

ii) Mr Kumar recorded in his report under “Mobility and Transfers” that Mr Wilson told him that he did not use a wheelchair, although he had later quoted Mr Wilson in the same report as saying to him “I use a wheelchair when I go shopping”. When this inconsistency was shown to him, he sought to argue that the earlier reference was to Mr Kumar himself not observing Mr Wilson using a wheelchair on the day of assessment, but was eventually forced to accept that section of his report was not qualified by reference to the assessment or Mr Kumar’s observations. He also accepted that medical records and those of Mr Barclay show that Mr Wilson uses a wheelchair outdoors and for longer distances.

iii) Mr Kumar accepted in cross-examination that his statement in his report that “I did not find [Mr Wilson] to have any balance or weakness issues” was a mistake, given that he had consistently reported Mr Wilson as having poor balance due to his impaired sensation in his lower limbs and feet for light touch and pinprick and joint position (this was the point in cross-examination at which he admitted he had lost independence and objectivity) and that he accepted Ms Keech’s assessment of March 2023 that Mr Wilson displayed an unstable gait and high risk of falling.

iv) Mr Kumar opined that “[Mr Wilson] will need in his older years an electric scooter or manual wheelchair” and signed-off on the further updated counter-schedule which provides only for an electric scooter from Mr Wilson’s 60s, despite accepting: (a) that it would be reasonable for Mr Wilson to have a wheelchair for safe outdoors mobility; (b) that he had in fact recommended an electric scooter at the time of his assessment; and (c) that he had sight of medical records and witness evidence from both Mr Wilson and Mr Barclay that Mr Wilson had been using a wheelchair for longer distances since he had been discharged from Askham to HMP Peterborough.

v) Mr Kumar wrongly criticised Mr Selmi, noting in his report “that Mr Selmi revised his findings and concluded (in his report dated 24.05.22) that he found an MRC grade 4/5 weakness in the left ankle and normal power in all other muscle groups. He has since revised this and stated that he found an MRC grade 3/5 in left ankle dorsiflexion and 4/5 in hip flexion”. Mr Selmi denied that he had revised his findings, this was not put to Mr Selmi in cross-examination, and I accept that Mr Selmi did not revise his findings, as did Mr Kumar in cross-examination. As Mr Selmi says, he examined Mr Wilson only once on 23 October 2021 and found an MRC grade 3/5 in left ankle dorsiflexion and 4/5 in left hip flexion, as he recorded in the muscle chart which he attaches as appendix 1 to the joint statement, as well as sensory changes on his examination. Although Mr Selmi pointed this out to Mr Kumar after the criticisms in his first report, Mr Kumar did not attempt to correct himself in the joint statement (accepting in cross-examination that he should have done) or in correspondence.

vi) He accepted that he stepped outside his area of expertise (as he is neither a pain expert nor a psychiatrist), and made a mistake in stating in the joint statement that “if the Court accepts the findings and opinions of Dr Edwards” then Mr Wilson’s spasticity has a “non-organic (functional) element” which is “unrelated to the claim”. He accepted in cross-examination that he should have deferred to the expert psychiatrists and told the Court he “did not mean to say” that the spasticity was unrelated to the claim, which he accepted was not justifiable.

vii) Mr Kumar noted in the joint statement that Mr Wilson “has no bowel issues” in disagreement with Mr Selmi, despite noting in his own report of November 2022 that “He has mildly impaired sensation in his bowels. He does not use suppositories, he takes Lactulose as and when needed. He is independent with bowel management“. He sought to argue that he did not disagree with Mr Selmi in the joint statement on this point. I am satisfied he did.

viii) He relied on Dr Edwards describing the spasms as “possible non-organic /functional spasms” in the joint statement despite agreeing that he had himself, in his initial assessment, found that Mr Wilson had spasticity in his left leg and spasms. He confirmed in cross-examination that he did not find those spasms to be anything other than organic, saying “I felt they were explained by the incomplete paraparesis. I did not find anything functional at the time of my assessment”.

ix) Mr Kumar opined and advocated on matters relating to Mr Wilson’s criminal record and its effect on his employability, despite accepting in cross-examination that he was not an employment expert, nor was he an advocate, and agreeing he should not have done so.

x) Following his review of the video surveillance evidence, Mr Kumar in his second witness statement:

a) Commented that Mr Wilson “can walk unaided… all activities were unaided and without any support” although this is not factually correct. Mr Wilson can be seen supporting himself on his car or his building while moving about, and can also be seen almost losing balance, as the physiotherapists and Mr Selmi agree. In getting in and out of the car, Mr Wilson can be seen using the car as leverage and for support and in one video can be seen bodily lifting his own leg into the car, as Mr Kumar accepted in cross-examination. In my judgment no reasonable, independent expert who watched those videos could fairly make such a comment. Mr Kumar accepted that the videos showed Mr Wilson moving slowly, using walls and the car for support, struggling with his mobility and losing balance, and that he did not include any of this in his commentary but should have done. He denied being selective in his commentary but I find that he was.

b) Notes Mr Wilson’s car seen on the videos as not having an MOT. I do not know why he, as an SCI expert, would comment on the MOT status of Mr Wilson’s current vehicle as it has no possible relevance to Mr Wilson’s spinal injury. He agreed in cross-examination that he should not have done so.

c) Refers to “Facebook posts which all show that [Mr Wilson] is much more active and remains independent with all aspects of [daily living] since my assessment on 4.9.2022“. The Facebook posts referred to, in my view, show almost nothing at all. Mr Kumar admitted in cross-examination that he should not have commented on them and that they do not show that Mr Wilson is “independent of all aspects of daily living”.

d) Opines that Mr Wilson “is exaggerating his disability which is factually negligible (AIS total motor score of 100/100 based on my assessment)…“. I pause to note that it has never been suggested by any of the treating professionals or other experts in this case that Mr Wilson has or may have exaggerated his disabilities, and Mr Wheeler quite properly did not put this suggestion to Mr Wilson in cross-examination. In cross-examination Mr Kumar apologised for this opinion which he says he should not have offered.

1. 1. Pursuant to CPR 35.3, the duty of an expert to help the Court on matters within their expertise overrides any obligation to the person who instructs or pays them. CPR 35.10 states that an expert’s report must comply with the requirements set out in PD 35. PD 35 is explicit in, inter alia: para 2.1 that expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation; para 2.2 that experts should provide objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate; and para 2.3 that they should consider all material facts, including those which might detract from their opinions. I am satisfied that in providing the evidence summarised above, Mr Kumar has breached these duties.

1. 1. As Cotter J stated relatively recently in Muyepa v Ministry of Defence [2022] EWHC 2648 (KB) at [284]:

“Experts should constantly remind themselves through the litigation process that they are not part of the Claimant’s or the Defendant’s “team” with their role being the securing and maximising, or avoiding and minimising, a claim for damages. Although experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply with any professional code, as CPR35.3 expressly states, they have, at all times an overriding duty to help the Court on matters within their expertise. That they have a particular expertise and the court and the parties do not … means that significant reliance may be placed on their analysis which must be objective and non-partisan if a just outcome is to be achieved in the litigation.”

1. Mr Wheeler submits that Mr Kumar is experienced and distinguished in his field, and I should not allow the concessions he made to cause me to dismiss all of his evidence. I disagree. In my judgment to place any significant reliance on Mr Kumar’s non-objective and partisan evidence would be to risk an unjust outcome in this case. I place no weight at all on Mr Kumar’s second expert report. Where the SCI experts indicate that they disagree in the joint statement, I accept Mr Selmi’s evidence as it is the only independent expert evidence on which I can safely rely.