Experts: Practicalities And Nightmares – Logistics And Duties. A Timely Reminder Of Both

Anyone who works with a variety of experts knows that there are numerous logistical and practical problems that arise as a result.  

Multiple experts’ reports  

For example, there is usually a court timetable with which the parties should comply, often meaning several reports to be obtained at the same time with a view to them being finalised, reviewed and ready to send through to the other party on a particular date.  

This juggling act can involve 10, 12 or more experts, all trying to prepare their reports for the same period of time in a complex case and all to some extent reliant on each other for various aspects of the claim. 

 A care expert, for example, will need to know what an orthopaedic surgeon considers the likely residual disability before determining what care package would be recommended. 

It can also mean the court orders disclosure of initial or further reports at different times to take into account changes in a given situation.

As can be imagined changes in view or evidence can cause problems to often very tight timetables.  

However, there is an obligation on the legal team and indeed the experts themselves to take on board the timetable to have sufficient time to deal if at all possible, and to take into account whether there have been any changes in evidence such as: 

• additional medical records 
• alternative documents 
• additional witness evidence or indeed  
• a change of expert opinion themselves 

Complex medical injury claims 

Such was the case in Swarcliffe v Broughton Valley Group Limited [2023] EWHC 1565 (KB). 

This case is a timely reminder of the duty to inform everybody at every stage what is happening and whether there are any changes in evidence.  

In essence, this was a claim for personal injury. There were a number of experts, some dealing with pain and some dealing with orthopaedics. The pain experts were to some extent dependent in their view on how they would approach a matter on the decisions of orthopaedic surgeons as to what would have happened and what would have been the likely scenarios.  

What happens when opinions change? 

In the weeks prior to trial the orthopaedic experts had come together and changed their view. That view was changed on key issues which might reasonably be considered might affect the view of the pain experts going forward. The judge at the time thought so and asked whether the pain experts had changed their view.  

 Immediately before the hearing the judge raised the issue again and reminded the legal teams that they have a duty to inform the court of any change of opinion that may occur. Given that the orthopaedic surgeons had changed their view there was a possibility that the pain experts may well need to do so also. 

 That information had not been sent through to the court so the judge made the reasonable request of pointing out that if the opinion had changed the court should be notified.  

 The pain experts had prepared their reports at the time of the initial orthopaedic review. Of course, when the orthopaedic surgeons had changed their view, albeit at a fairly late stage, they should have been able to take into account the change in opinion and position of both orthopaedic surgeons. 

 One of the orthopaedic surgeons had fairly radically changed his view and the pain expert on that side had heavily relied on that previous opinion to consider what would have happened in relation to pain and pain management.  

 A week before trial the orthopaedic surgeons further clarified their view. This was the second alteration of view. This meant that in fact part of the joint statement that had been prepared by the pain experts did not fit with what the orthopaedic surgeons were saying. It should have been fairly obvious therefore that the pain experts had to re-review the matter. 

The importance of communication  

It does not appear that the pain specialist from either side was notified appropriately but certainly the claimant’s expert didn’t seem to have any notice of the change of opinion of the orthopaedic surgeon. At trial he was therefore dealing with issues he perhaps had not had time to fully consider.  

 With the best will in the world no legal team is going to achieve good expert evidence from an expert that is provided with information at a late stage which may alter their opinion. A considered opinion is one matter.  

 A considered opinion dealing with different evidence with very short notice is quite another. In addition, the court is entitled to have an opinion from an expert who has had sufficient time and has carefully considered the issues. It is of no assistance to the court to have an expert who quite frankly has been provided with pertinent information at a late stage.  

 To be fair to the pain expert he provided a further report extremely quickly when asked to do so. 

 However, the judge was of the view that speedy or not, the opinion provided by the pain expert was not of great assistance. The pain expert had not had time to provide an adequate analysis. In addition, of course whatever opinion he came to was likely to be in conflict to some extent with the previous opinions that he had expressed in three previous reports. 

The pain expert was then put forward for cross examination and it was somewhat inevitable that he then was unable to support the claimant’s view satisfactorily. 

It may well be the case that experts were not allowed sufficient time for work to be completed. However, to provide an expert with a complete change of opinion from other specialities a week before trial is placing them in an unfair position particularly if their previous expressed view had been fairly definitive. It is also unfair to both parties, particularly the claimant.   

The case reminds us of the need not just to take into account the standard timetable and preparation for same, not just the ensuring that the reports are completed satisfactorily but also that if there is a change of opinion, evidence or additional information, that the experts are notified immediately and asked to review.   

The reality is that juggling expert evidence is always a logistical problem. New or additional information does come to light, often at very late stages. These are common problems. 

 Changes in position at late stages are not that common but wherever and whenever they occur, all the experts need to know and have time to consider, or they cannot provide a proper service to client or court. Failing to do so damages the case, the client and the expert.