PI Brief Update

Expert witnesses and apparent bias: Biggadike v El Farra & Anor [2024] EWHC 1688 (KB) - Philip Matthews, Temple Garden Chambers

21/08/24. This case provides an interesting commentary on the issue of expert witnesses and apparent bias.

Facts

Biggadike was a clinical negligence action against two defendants originating from allegedly mismanaged urinary stress incontinence.

On liability, all sides called expert witnesses in urogynaecology.

Two of those experts, Mr Toozs-Hobson and Mr Robinson, were subject to cross-examination which sought to undermine their integrity on the basis of their attendance at the same clinical conference during the trial.

The questioning implied, in the words of Carmwel Wall J at §126, that the experts had “some personal, professional and/or financial interest in the outcome of the trial, and/or had a financial interest in the supply of vaginal mesh products”.

Judgment

The judge, whilst commenting that it may have been preferable for the mutual commitment to have been volunteered, rejected the suggestion that the experts’ attendance at the conference had any effect on their evidence. She held, at §129-130:

“Mr Robinson and Mr Toozs-Hobson knew each other before being instructed as experts. Each of them already knew each of the defendants. It is entirely artificial to think that the organisation and attendance at the weekend seminar would have any effect or impact on their evidence. Mr Robinson and Mr Toozs-Hobson had each already provided written reports and then a Joint Statement addressing a detailed agreed agenda. The quality of the substance of their opinion could be and was properly explored through the trial process. 

I reject the suggestion that either Mr Robinson or Mr Toozs-Hobson has approached the task of giving evidence in this trial other than in accordance with the duties owed by an expert to the court. I reject the suggestion that either has given evidence that has been improperly influenced by any hidden agenda of protecting personal, professional or financial interests. I reject the suggestion that either has a personal stake in achieving any particular outcome in this litigation or has manipulated his evidence for any improper reason or purpose, including the suggested motivations of defending mesh claims made against him or financial connections with the mesh industry. 

I entirely accept and endorse Mr Toozs-Hobson's pithy response to cross-examination attacking his independence when he said, "This case isn't about me". That applies equally to Mr Robinson.”

Comment

This is notable for personal injury practitioners more generally. Just as the sub-specialist world of urogynaecology is a small one, it will likewise often be the case, within niche areas of technical expertise, that few people are expert in the topic, and, those that are, know each other. This alone is not enough to ground a proper allegation of bias, however, and counsel should think very carefully before suggesting the same.

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