Two recent cases have thrown fresh light on the importance of choosing the right expert witness in civil litigation.
Role of the expert evidence
Lay witnesses in civil litigation can only give factual evidence of what they have heard, seen or experienced but they cannot go on to give their opinion on those facts – for example, they can describe how they saw a vehicle move but they cannot say that the driver of the vehicle was driving recklessly - that would be opinion rather than fact. If a witness does give opinion in their evidence, it is usually inadmissible.
The role of the expert is markedly different because they are asked to assist the court in reaching its decision by giving their opinion and technical analysis, often inferred from the factual evidence. The Court’s role is then to decide the issue before it based on all of the evidence, from both lay witnesses and experts.
The success of a claim often turns on the evidence given by the expert witnesses and so having the right type of expert is crucial to the case as the two cases below demonstrate. Anthony Gold was not involved in either of the cases reported below but they act as reminders of the importance of the legal team picking the right expert witness.
Laughton v Shalaby
In Laughton v Shalaby  EWCA Civ 1450 the Court of Appeal had to consider Mrs Laughton’s complaint that Mr Shalaby acted negligently while performing a left hip replacement operation in 2007 in East Sussex. The County Court had to consider whether the poor outcome that Mrs Laughton experienced was an unfortunate but non-negligent outcome of the surgery or whether it was instead as a result of Mr Shalaby’s negligence during the surgery.
The County Court Judge sitting at Central London found in favour of the Defendant. It was clear from the judgment that the Judge preferred the evidence from the Defendant’s expert witness to that of the Claimant’s expert at least partly because the Claimant’s expert had not personally performed a hip operation or been involved in any orthopaedic surgery since the year 2000 whereas the Defendant’s expert was still in practice and had performed his last hip replacement six weeks before he gave evidence at the trial.
The judge also noted that the Claimant’s expert had given his evidence in an exaggerated manner showing emotional sympathy with Mrs Laughton whereas the Defendant’s expert had remained more impartial and had the support of written authorities.
Mrs Laughton appealed her case to the Court of Appeal partly on this point but her appeal was dismissed and she was forced to accept that the trial judge was entitled to prefer the Defendant’s expert evidence.
McGovern v Sharkey
McGovern v Sharkey & Anor  NIQB 117 was a case heard in the High Court of Justice in Northern Ireland. Although the Court did not have to decide whether they preferred the Claimant’s expert evidence to that of the Defendants’ experts, Judge Stephens nonetheless commented that he preferred the expert evidence from the first Defendant for reasons such as the external support for his opinion in the medical literature, his personal experience of cases relevant to the claim and the level of detail of his evidence, which included an exhaustive analysis of all the medical notes and records.
Opposed to this, the Judge considered that there was little, if any, support for the Claimant’s expert’s views in the medical literature.
The right expert will depend on the facts of each individual case and the claimant should be sure that their expert is up to date with current practices. The expert will analyse all of the evidence before them and given an opinion that is entirely impartial, reasonable, will stand up to logical analysis and is supported by other literature.