Judicial Criticism of an Expert Witness - Lessons Learnt

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No expert witness wants to hear the judge say: “I do not think that I can place any weight on [your] evidence.” What leads a judge to say that and, more importantly, how does the expert guard against such a comment?

The words come from a judgement in the Court of Protection handed down on 31st December 2020 by Mr. Justice Cohen, Z v (1) University Hospitals Plymouth NHS Trust, (2) RS (by his Litigation Friend the Official Solicitor) & Others

In summary, RS had severe and irreversible brain damage following cardiac arrest in November 2020; the agreed medical evidence was that he was moving from a state of coma to a vegetative state, with a 10-20% chance that he might progress to a minimally conscious state (MCS) minus.

There was disagreement as to what action to take between RS’s wife (who said that he would not want to be kept alive if he could not be helped) and his birth family (who maintained that his strong Catholic faith would mean that the sanctity of life would prevail over all other considerations).

Following the Court’s declaration that it was not in RS’s best interests to be given life sustaining medical treatment, including nutrition and hydration, and that treatment could be lawfully withdrawn, there was a further application by his birth family, led by his niece, for three declarations, the first of which was that they would be allowed to rely on the evidence of Dr.Pullicino.

Whilst he admitted Dr.Pullicino’s report and allowed him to give oral evidence, the judge concluded that he could place no weight on it.

Why not?

The full reasoning is given at paragraphs 13 to 30 of the judgement, but a summary follows below.

1.         The circumstances of Dr.Pullicino’s involvement and his lack of records. There was evidence of discussions between the doctor and three sources, including RS’s niece; the judge described them all as being “not reliably objective”. In addition, he had failed to make any notes of any conversations about the case “as every expert should do”.

2.         The evidence on which Dr.Pullicino commented. He viewed 10 video clips, provided by the birth family, of their visit to RS on 25th December. In his oral evidence, he accepted that it is not possible to arrive at a diagnosis of MCS on the basis of a “one-off observation”; as the judge pointed out, however, that is effectively exactly what he did.

3.         The lack of  examination, reliable evidence and any expressed reservations in the report or in oral evidence. The expert:

(i)         had read none of the patient records;
(ii)        had not seen the reports of the expert called by the Official Solicitor, or of the treating doctors, until just before giving evidence, at which point he saw only 1 out of the 6 available documents;
(iii)       had not spoken to the treating team, nor seen the MRI, the EEGs or any other scans;
(iv)       had not read any of the court judgements in the case or any of the case papers;
(v)        had relied solely on the word of RS’s niece, without any corroboration, on the issue of RS’s reaction when his birth family attended;
(vi)       had relied on an unstructured series of exercises, carried out by the birth family on their visit, which he said demonstrated that RS was able to respond to instruction; there was an imbalance of evidence here, because he had kept no records of how often RS did not respond to instruction;
(vii)      in his oral evidence, he was “untroubled by any of these deficiencies”.

4.         Inconsistency between his report and his oral evidence. In court, Dr.Pullicino stated that RS had a 50% chance of being independent in his own home – a point that he had not made, or sought to justify, in his report.

As the judge commented: “The absence of any real information about RS or any properly structured examination should cause any expert, at the very least, to note the limitations on the exercise that he has conducted. Nowhere in Dr Pullicino's report or evidence have any reservations been expressed.” [para.26].

The main issue identified by the judge is not simply the lack of evidence on which the expert was basing his opinion although, plainly, experts must ensure that they have all the relevant evidence before attempting to reach an opinion. The main issue is this expert’s failure to note the lack of evidence and to accept that this placed limitations on his opinion; he was under a duty to express his opinions as qualified opinions and to accept, and refer to, those qualifications (PD 35, 2.4(b) and 3.2(8)).

Anyone who has particular knowledge in a specified field can properly be characterised as an expert witness; to act as an expert witness requires further knowledge and understanding of their duty as an expert witness (what it is; what burden it places on the expert witness; how to discharge that duty; what the courts need from the expert).

It is vital that expert witnesses keep records of their instructions and of all information with which they are provided. 

Expert witnesses must be fully aware of, and fully compliant with, their overriding duty to the court; that duty includes being transparent with the court, even if that means accepting that there is a qualification to their opinion (for example, that the expert has not had access to full information, or has had to work under very tight time constraints due to late instruction).

Any expert witness wanting to guard against similar criticisms to those made in this case is well advised to be fully compliant with their role and duty to the court.

Bond Solon is the UK's leading Expert Witness Training Company and since 1992 have trained tens of thousands of expert witnesses. In this time we have been at the forefront of improving the standards of expert witnesses in the UK and worldwide through the provision of knowledge and skills based learning and qualifications.