Expert Witnesses - Conflict
of interest - Disclosure
9-12 February 2015
evidence of the defendant’s expert was undermined due to an undisclosed
conflict of interest.
1999 the claimant had an MRI scan of the brain following an episode of visual
disturbance. The MRI scan was reviewed by the defendant who stated that the
“brain scan was entirely normal”. In 2011 the claimant suffered a haemorrhage
due to a ruptured aneurysm. The claimant’s treating physician reviewed the 1999
scan and believed he could identify the aneurism that had ruptured. The
claimant alleged that the defendant negligently failed to identify and report
the aneurysm in 1999.
issue was whether the 1999 scan indicated the presence of an aneurysm which a
reasonably competent neuroradiologist would have identified and reported. The
claimant’s two experts both stated that there was at the very least a high
index of suspicion of an aneurysm on the 1999 scan. The defendant’s expert, Dr
Molyneux, stated that no abnormality was seen in the brain on the 1999 scan.
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cross-examination, it emerged that the defendant had been trained by Dr
Molyneux, they had co-written papers and had served on a committee together and
that the defendant had suggested Dr Molyneux to the defence. The conflict of
interest had not been disclosed prior to trial. The defendant argued that this
cast no real doubt on Dr Molyneux’s independence, as it was all historic,
however Dr Molyneux referred to the defendant by his Christian name during his
oral evidence. In addition Dr Molyneux had not raised issue with the report of another
expert for the defendant, which was not relied on at trial, when Dr Molyneux
knew that the statements made by the other expert were not accurate. The court
therefore found Dr Molyneux not to be a disengaged party in the litigation.
claimant asked for Dr Molyneux’s evidence to be deemed inadmissible. The court
found that it had heard Dr Molyneux’s evidence, and the non-admission of that
evidence would be fatal to the defendant’s case. There was no doubt about Dr
Molyneux’s expertise and competence to assist the court and therefore the
evidence was admitted. However, the weight to be given to his evidence was to
be assessed. The court found that this case turned on evaluation of competing
medical opinions and therefore the independence and impartiality of the experts
was important. The court’s confidence in Dr Molyneux’s independence was
substantially undermined and the court therefore found for the Claimant.
should ensure that they explore with their expert any potential conflict and
make early disclosure of a conflict to the court and the other parties.
Dyl & Jodee Mayer, Anthony Gold