Experts in the Spotlight Again

 It is unusual for large quantum cases in clinical negligence to end up at trial. Nevertheless, it does happen probably every few years or so. CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770 (KB) (12 July 2023) is just such a case and it is of particular interest because Mr Justice Ritchie allowed a leapfrog appeal to the Supreme Court with respect to the issue of loss of earnings in the “lost years” for children, challenging the case of Croke v Wiseman [1981] 3 All ER 852.  

However, the other aspect of the case that is of particular interest is the assessment and marked criticism of some of the (Defendant’s) quantum experts by the judge. Most judicial expert criticism in clinical negligence cases arises from trials on liability, so it is especially notable when quantum experts are under the spotlight.  

Over the last few years, there have been many clinical negligence cases in which experts have been significantly criticised by judges for various aspects of their roles and duties, with 2019 being a particular annus horribilis for experts. Some common themes arise out of the cases, to which experts would be wise to pay heed. These have included:  

• ensuring the expert has the appropriate expertise for the issues in dispute;  
• not straying beyond their particular area of expertise or beyond their remit;  
• being logical;  
• making concessions where appropriate;  
• not reviewing matters with the benefit of hindsight;  
• knowing the correct legal tests;  
• being balanced and not exaggerating;  
• not being partisan;  
• ensuring internal consistency in their reports and evidence;  
• addressing all the issues fully;  
• ensuring they have considered all relevant facts and evidence, and not making any material omissions;  ensuring any literature relied upon properly supports their opinion;  
• not being evasive; not making last-minute changes to their opinion; and  
• recognising the nature and importance of their duties and the seriousness of the role of an expert, including understanding the meaning of the expert’s declaration and the statement of truth. 

Ritchie J.’s analysis of the expert evidence in CCC is another example of some of the factors that judges look at when assessing an expert’s evidence, which is worth some close consideration in particular by experts still active in the field. Specifically, the judge commented in some detail upon the neurologists, care experts, occupational therapy and physiotherapy experts, and finally the accommodation experts. 

Assessment of the neurologists  

In his assessment of the neurology experts, the judge praised the Claimant’s expert, Dr Jardine, for being “a helpful, balanced and persuasive witness. He was consistent in his approach and thoughtful under cross-examination”. 

However, he took the opposite view of the Defendant’s expert, Dr Baxter, concluding: “He did not put a proper part 35 statement on his reports, he extracted one medical record adverse to the Claimant’s case on disturbed sleep and elevated it out of all proportion in the joint report and he displayed no desire to understand the difference between the burden of proof in Court on the balance of probabilities and the medical requirement in the publication of research for the conclusions therein to be to a scientific standard”. 

He was also critical of Dr Baxter’s substantive approach to the assessment of life expectancy. As is evident, the expert had fallen foul of a number of the factors raised above. The judge unsurprisingly preferred the evidence of the Claimant’s expert where there was a dispute. 

Assessment of the care experts  

The judge considered the evidence of the care experts, Miss Sargent for the Claimant and Mr Chakraborty for the Defendant. He was particularly impressed by the former’s “substantial experience in case management and in the construction implementation and management of care packages for cerebral palsy children”, which he found impressive. 

He was praiseworthy of her reports, describing them as “clear and succinct”, with her figures being “based on real experience in the field”. Ultimately, her assessments of needs and the issues arising “were all reasonable, balanced and consistent”.  

He did, however, pick up on an error in drafting the first joint statement in relation to current and future night care needs. In contrast, the judge considered Mr. Chakraborty’s evidence in relation to care to be “flimsy and unimpressive” and, in respect of past care hourly rates, “insubstantial”. 

However, the judge more importantly was concerned about his lack of experience and expertise in the appropriate fields of care and case management for a cerebral palsy child. Accordingly, the judge ultimately did “not consider that he was acting within his CPR part 35 responsibilities professionally or properly in holding himself out to be an expert on maximum severity care packages or the costing thereof”. 

The expert was opining beyond his expertise, a factor about which judges are particularly alive. Again unsurprisingly, the judge chose to prefer the Claimant expert Miss Sargent’s evidence.  

Assessment of the occupational therapy experts  

Mr Chakraborty was again in the hotseat with respect to occupational therapy, this time pitted against Deborah Martin. Unfortunately, the outcome was little different to that of care and case management.  

Ritchie J. found Deborah Martin to have “considerable excellent qualifications and experience as an occupational therapist over many years dealing with equipment for cerebral palsy children” but also considered that she “gave her evidence in a measured, calm and balanced manner, conceding points where necessary”. 

Poor Mr Chakraborty, in contrast, was considered to have an approach that was “superficial”, with far too much reliance on internet research rather than “on the ground, actual experience”. His lack of detail was unable to match Deborah Martin’s “careful and analytical approach”, and unfortunately he “admitted in evidence that some items that he put forwards were simply ‘the cheapest option’ instead of the reasonable range for the Court”. 

The judge needless to say preferred the evidence of Deborah Martin, the Claimant expert. 

Assessment of the physiotherapy experts  

The two physiotherapy experts – Miss Filson for the Claimant and Miss Kinley for the Defendant – are both very experienced and well-known experts. The judge was content that both “were clearly doing their best to assist the Court within their own experience and skill bases”. 

However, the judge was considerably more impressed by Miss Filson’s experience of cerebral palsy children, which he described as “long and impressive”. He also considered that she was “far more up-to-date than Miss Kinley, who had stopped NHS practice with cerebral palsy children 18 years ago and had concentrated on medico legal reporting since 2009, with some private physiotherapy”. 

He was impressed by Miss Filson’s depth of research into hydrotherapy, “travelling worldwide and discussing it with experts in Toronto, Israel and Europe. I was also impressed that she personally had visited the pools available to the Claimant around Rotherham and assessed them using her expertise in hydrotherapy”.   

In distinction, the judge considered Miss Kinley’s evidence on hydrotherapy to be out of date and she “was not prepared to accept that hydrotherapy had any benefits other than being enjoyable”. 

He considered her opinion to be neither well informed nor balanced in relation to hydrotherapy, and further it lacked impartiality. The judge, therefore, preferred the evidence of yet another of the Claimant’s experts, that of Susan Filson.  

Assessment of the accommodation experts  

Perhaps saving the best until last, the final experts to be considered were the accommodation experts. The judge was particularly critical of the Defendant’s expert, Mr David Cowan.  

He noted: “In cross-examination Mr Cowan accepted that he was an architect not a valuer or a surveyor. He was retired. He only did expert witness work. He had last managed a building project three years ago”. 

The judge was critical of the fact that, when cross-examined on why he said in his report that a hydrotherapy pool was not ‘recommended by the Defendant’s therapists’, he accepted that he had not been given any such report, and further accepted that “he was ‘crystal ball gazing’ based on his knowledge from other cases and that he had not received any reports from the Defendant’s therapists at that time”. 

The judge stated he was particularly unimpressed by such an approach, in particular that “Mr Cowan was pre-judging or fabricating evidence based on a hunch outside his field of expertise”, which were strong words indeed.  

Ritchie J. was in fact so troubled by this evidence and the expert’s answer that he invited counsel to consider disclosing the instructions provided to the expert, a step that was indeed taken. 

The judge viewed the instructions as “utterly professional and appropriate”, with no suggestion being made that any therapist had advised the Defendant that no hydrotherapy pool was necessary; as the judge then described in his judgment, “This left Mr Cowan fully exposed”. 

The judge described the expert as having “misrepresented the existence of the Defendant’s expert therapy evidence in relation to the hydrotherapy pool, which did not exist when he asserted it did”, ‘misrepresented’ being another very strong word to use to describe an expert’s evidence.  

It is perhaps hard to imagine, but things worsened for the beleaguered expert. He was cross-examined on why he had failed to cost a hydrotherapy pool properly. Amongst other answers, he had to concede that a search he had carried out in 2021 was now out of date. 

He also accepted that he had excluded properties from his search which could house a hydrotherapy pool. The expert further accepted that he had failed to set out the sizes of the properties that he suggested in his report as notional and appropriate. 

Ultimately, the judge considered that Mr Cowan was driven to making concessions “by his own lack of detail and superficiality”. As a stark alternative, the Claimant’s expert, Mr Docker, was described by the judge as “well qualified in multiple relevant fields, highly experienced, in current practice and [he] took a balanced and detailed approach to his expert evidence…” The judge highlighted the “remote” desktop approach taken by Mr Cowan when compared with the hands-on approach by Mr Docker. The former had not even spoken to the Claimant’s mother.  

Where the evidence of Mr Cowan and Mr Docker conflicted, the judge naturally largely preferred the evidence of Mr Docker.  

All these examples again highlight how important it is that experts take their role and responsibilities very seriously or face the displeasure of the judiciary. I have discussed above some key points from recent cases that experts would be wise to heed and the Defendant experts referred to above were variously in breach of many of these points. 

To that list, though, and something the judge was very keen on in this case, experts could be added making sure that they avoid superficiality and instead ensuring that they pay attention to providing proper detail in support of their opinion.  

Flawed system 

Whilst there are many experts who do take their role very seriously and who do try to discharge their duties appropriately and properly, there is no doubt that there remains a reasonably sizeable proportion of experts who do not understand their role, who are not willing to learn what that role is and/or who, I am sorry to say, clearly see the expert witness role as something of a gravy train. 

I say this in part from my own personal experience as a Claimant clinical negligence practitioner working with experts a lot, as well as from the numerous relatively recent High Court judgments in which experts have been significantly criticised: my own experience sadly reflects many of the issues identified in the cases.  

My feeling is that the expert witness ‘system’ is somewhat flawed. At the very least, I think it would benefit from a central register of experts, or similar, and a proper system of training, qualification, monitoring, regulation and ultimately accountability of expert witnesses to try to avoid the repeated basic errors that some, even very experienced, experts (who should know better) are making and which can seriously damage a party’s case (let alone the expert’s reputation), as CCC amply demonstrates. 

However, the practicalities and logistics of setting up, implementing and then enforcing such a register would likely be both difficult and problematic. In any event, there seems to be little appetite to change the present system, despite the frequent and regular judgments highlighting expert deficiencies, so sadly I am sure we will continue to see similar expert criticisms to those in CCC for the foreseeable future.