10 JUL 2015
EXP v Dr Charles Simon Barker  EWHC 1289 (QB)
Expert Witnesses - Conflict of interest - Disclosure
9-12 February 2015
The evidence of the defendant’s expert was undermined due to an undisclosed conflict of interest.
In 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.
The 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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During 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.
The 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.
Litigators 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.
Adam Dyl & Jodee Mayer, Anthony Gold