Preliminary (pre-report) experts’ meetings Preliminary (pre-report) experts’ meetings

Preliminary (pre-report) experts’ meetings

Experts, in particular medical experts, are likely to be familiar with experts’ discussions that take place after the exchange of reports. This...
A Day in the Life of a Medicolegal Expert Witness A Day in the Life of a Medicolegal Expert Witness

A Day in the Life of a Medicolegal Expert Witness

Sue Lightman is a Professor of Ophthalmology and Consultant Ophthalmologist who has been undertaking medicolegal Expert Witness work for over 20...
Thomas Murray Joins EWI as a Corporate Partner Thomas Murray Joins EWI as a Corporate Partner

Thomas Murray Joins EWI as a Corporate Partner

We are pleased to welcome a new Corporate Partner
Pfizer Inc v Uniqure Biopharma BV [2024] EWHC 2672 (Pat) Pfizer Inc v Uniqure Biopharma BV [2024] EWHC 2672 (Pat)

Pfizer Inc v Uniqure Biopharma BV [2024] EWHC 2672 (Pat)

The judge in this patent case found that the claimants’ gene therapy expert had developed, quite possibly guided by lawyers, the understanding...
How not to use AI in expert evidence How not to use AI in expert evidence

How not to use AI in expert evidence

In this US case, an expert in fiduciary services used Microsoft’s Copilot to cross-check calculations he used in expert evidence. He was unable...
Celebrating Success at the Sir Michael Davies Lecture Celebrating Success at the Sir Michael Davies Lecture

Celebrating Success at the Sir Michael Davies Lecture

Successful Certification candidates receive their certificate from Lord Hodge.
Independence, bias and conflicts of interest Independence, bias and conflicts of interest

Independence, bias and conflicts of interest

Hon Mr Justice Trower provides invaluable guidance for Expert Witnesses at the 2024 the Sir Michael Davies lecture.
Podcast Episode 5: Range of Opinion Podcast Episode 5: Range of Opinion

Podcast Episode 5: Range of Opinion

Range of Opinion is the focus of the 5th episode of the Expert Matters Podcast. We catch up with Colin Holburn, Chair of the EWI Membership Committee,...
A Day in the Life of a Water Quality Expert A Day in the Life of a Water Quality Expert

A Day in the Life of a Water Quality Expert

Tim White is a chartered chemist who uses his expertise to assess chemical risk from exposure to water. He has been an Expert Witness for over 40...
Podcast Episode 4: Expert Fees Podcast Episode 4: Expert Fees

Podcast Episode 4: Expert Fees

Simon and Sean discuss expert fees and catch up with Dominic Woodhouse from Partners in Costs to talk about cost management and budgeting in civil...
A Day in the Life of a Fitted Kitchen and Bathroom Expert A Day in the Life of a Fitted Kitchen and Bathroom Expert

A Day in the Life of a Fitted Kitchen and Bathroom Expert

Jerry Ponder uses his 40+ years of experience in fitted interiors to provide expert evidence on the design, product quality, installation and project...
Podcast Episode 3: Single Joint Expert Podcast Episode 3: Single Joint Expert

Podcast Episode 3: Single Joint Expert

Simon and Sean discuss Single Joint Experts and catch up with two EWI members who act as Single Joint Experts to hear about their experiences, the...

Check out our Case Updates and Member Magazine

Looking for more news relevant to the Expert Witness community? Why not check out our database of cases relevant to Expert Evidence or the latest and previous editions of our member magazine, Expert Matters.

News

Clicking on one of the topics below will display news items relevant to that topic. You can also use the search bar below to identify news items.

The responsibility of experts in relation to their written evidence
Simon Berney-Edwards 4073

The responsibility of experts in relation to their written evidence

bySimon Berney-Edwards

A recent judgment from the Honourable Mr Justice Marcus Smith provides a cautionary tale for experts.

 

The judgment contains the following in section 13:

 

(h)          The last point that I make in relation to Professor Morgan’s evidence concerns less his oral evidence and more the written reports he submitted before the hearing and which he affirmed represented his expert opinion when he gave his evidence in-chief. I am afraid that Morgan 1 and Morgan 2 (Morgan 3 is a short and not particularly material report) were, in critical respects, disingenuous documents, written in a manner that seemed to me calculated, not to assist, but to mislead, the court. I am very conscious that this is the most serious criticism that one can make of an expert, and I do not make it lightly. The main points that have compelled me to this conclusion are dealt with fully in paragraphs 62 and 67 of this judgment, and I have sought to be clear throughout this judgment why I am not accepting evidence on certain points. Because the points go very much to the substance of the issue that I must determine, it is not possible to anticipate them here, save in the most general of terms. Suffice it to say, for the reasons given in these paragraphs, I am not confident that I can rely on Professor Morgan’s reports, save with a degree of caution and reserve that a judge would not normally attach to the report of an expert.

 

(i)            As is normal practice, a draft of this judgment was circulated, on terms of strict confidentiality, to the parties and their legal advisors. Professor Morgan did not see the draft. Counsel for Mylan - in addition to identifying typographical errors and making other points - questioned the appropriateness of my criticisms of Professor Morgan, and referred me to the decision of the Court of Appeal in Re W ([2016] EWCA Civ 1140), a case which considered (in rather different circumstances) the extent to which it was appropriate to make factual findings in relation to persons not directly before the court (i.e., witnesses not parties), but named as part of a fact-finding exercise conducted by a judge in the Family Court. Whilst I do not consider Re W to be precisely on point, I have re-visited the draft with Mylan’s points regarding Professor Morgan specifically in mind. I am grateful to Mylan for raising the matter so clearly - it was right to do so. However, having considered the matter most carefully, I have not materially changed the terms of the draft, and I should explain why:

 

  • (i)           An expert is responsible for his or her evidence, including the precise wording of any report submitted to the court under the name of that expert. In many cases, the expert will be in need of, and will receive, assistance from the solicitors (or other lawyers) who have retained that expert. That is entirely understandable, but only serves to enhance the importance of the expert being entirely satisfied that his or her opinion is properly reflected in the report(s) submitted in that expert’s name. This is the duty of the expert, and it is not one that can be delegated.
  • (ii)          An expert will be giving opinion evidence in relation to a subject-matter with which a lay person - specifically, in this case, the judge - will be unfamiliar. That is why the evidence is needed. It is incumbent on the expert not merely to present evidence that is technically correct, but that makes a fair presentation of the expert’s opinion. If the expert does not do that, then criticism is liable to follow.
  • (iii)         It must be emphasised that such criticism is not intended in any way to be personal or punitive. It is an intrinsic part of assessing the weight to be attached by the court to the expert evidence that is adduced before it. The criticisms that I have made of Professor Morgan must be seen in this light. They are made purely and simply because I need to explain to the reader of this judgment precisely why I have preferred - on critical points - the evidence of Professor Roth over that of Professor Morgan. That has involved a very close parsing of material parts of Professor Morgan’s written evidence, together with the oral evidence he gave in relation to that written evidence.
  • (iv)         To put the same point differently: it would be unacceptable for me to say simply that I preferred the evidence of Professor Roth over that of Professor Morgan, without saying why. Oftentimes, the “why” will turn on technical matters of legitimate dispute between the experts, and the judge will explain why the approach of one expert has been preferred over that of another, it being accepted that each expert was doing his or her best to assist the court. That is the ordinary case. This - for reasons that I have set out in this judgment - is not such a case.  
  • (v)          The suggestion was made that the substance of the criticisms I have made of Professor Morgan’s evidence were not put to Professor Morgan. I do not accept this contention. All of the aspects of Professor Morgan’s reports that I have seen fit to criticise were put to Professor Morgan by Mr Waugh, QC. I have - as is my duty - drawn my own conclusions from the totality of the evidence. The manner and form in which I have evaluated Professor Morgan’s evidence in light of the totality of the evidence is - as it should be - a matter for me.

 

Read the full judgment from the link below.

Share

Print
Comments are only visible to subscribers.