ARE YOU SURE ABOUT THAT?

pichris_rafferty By Christopher Rafferty

The Court will inevitably carefully consider any expert evidence before it. There are however certain instances in which a very high level of reliance is placed on medical evidence. In these cases one might think it crucial to have an expert solidly committed to their conclusions, unshakeable in the face of stern cross-examination and judicial analysis. On the other, an expert who advances a late theory, long after the submission of a joint report, is highly unlikely to assist the party relying upon said expert.

 In the case of Smith -v- Tesco plc & Royal Free London NHS Foundation Trust [2016] EWHC 3252 (QB) Mr Smith sustained a serious injury whilst shunting a trailer around a Tesco loading bay. As he drove over a sunken fire hydrant he experienced a severe jolt akin to a ‘red hot poker’ being inserted into the base of his spine. After valiantly moving one further trailer he realised that he was unable to continue working. Upon trying to drive home he lost sensation in his left leg and called his son to drive him the rest of the way home. After a short sleep on his sofa he awoke to find that he had suffered a significant level of incontinence, and after further such instances was admitted to hospital and diagnosed with cauda equina syndrome for which he underwent spinal surgery.

The Claimant’s expert arrived at the conclusion that Mr Smith was suffering from a pre-existing degenerative lumbar disc disease which was exacerbated by the accident, causing the cauda equina syndrome. The Defendant’s expert was initially of the view that Mr Smith was inevitably going to develop cauda equina syndrome irrespective of the jolt to his spine. A joint report was prepared; there was some agreement as to the symptom progression but the experts maintained their respective positions on causation.

Had this still been the case at trial the Court would have considered the merits of each expert and doubtlessly arrived at a careful conclusion, preferring one expert the other. The Defendant’s expert however had other ideas: shortly before the trial he produced a further report expounding a new hypothesis to support his conclusion, concluding that Mr Smith had already entered into cauda equina syndrome some hours before the index accident. The Deputy High Court Judge, David Pittaway QC, was not impressed:

“The late advancement of this opinion is, in my view, very unsatisfactory and if a live issue should have been considered at a much earlier stage and permission sought to rely on urology evidence. It defeats the purpose of exchange of expert evidence and joint discussions between experts if experts raise new theories shortly before trial.”

Accordingly the Court had little difficulty in preferring the conclusion advanced by the Claimant’s expert and found that the accident had caused Mr Smith’s cauda equina syndrome. Let the lesson be learned – a late brainwave by an expert previously tied to a different theory is much more likely to undermine the case than save the day.

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