Experts and Conflict of interest/Bias - Expert Witness Conference 2021- Day One - La Touche Training
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Experts and Conflict of interest/Bias Expert Witness Conference 2021- Day One
Caroline Conroy
Solicitor
© 2020 La Touche. All rights reservedJurors are more likely to perceive an expert
Expert Evidence witness to be an unbiased contributor to the case
and the than an ordinary witness.
question of
Bias
Jurors are thus more likely to lower their guard
when expert witnesses are testifying.
Bernstein “ Expert Witnesses, Adversarial Bias, and
the (Partial) Failure of the Daubert Revolution”
© 2020 La Touche. All rights reservedLaw Reform Commission Paper on Expert Evidence 2008 -
Paragraph 4.02
Bias or partisanship, which goes completely against the duty
owed by the expert to be impartial and independent, can take
place in a number of ways in the giving of expert testimony and a
number of sources of adversarial bias have been identified.
“Conscious bias”, “unconscious bias” or “selection bias” may all
occur in the giving of testimony.
© 2020 La Touche. All rights reservedCategories of
Bias 1. Conscious Bias
• Personal Interest
LRC Consultation • Financial Interest
Paper on Expert
Evidence 2008 2. Unconscious Bias
3. Conflict of Interest
© 2020 La Touche. All rights reserved1. Perception of bias due to the expert’s personal or moral
beliefs
2. Perception of bias due to a previous or close
Personal relationship with the instructing party
Interests
3. Experts becoming emotionally or over involved in the
case or with the party
4. Over allegiance to a particular profession
© 2020 La Touche. All rights reservedPersonal Interest
1. Perception of expert being predisposed to their opinion due to their
personal beliefs or moral viewpoints – relatively rare
Hertzler v Hertzler (1995) WY 206
The expert appointed admitted under cross-examination that his religious
beliefs regarding homosexuality affected his opinions in the case.
© 2020 La Touche. All rights reservedPersonal Interest
2. Where the expert has a previous or close relationship with the instructing
party - UK case of EXP v Dr. Charles Simon Butler [2017] EWCA Civ. 1028
• Irwin’s judgement set out the circumstances where there has been an undisclosed close
professional and social connection between the appellant, (a doctor) and the principal
expert witness - significant connections between them over many years, from training onwards which
neither had declared to the court.
• Trial judge considered excluding the evidence. Did not do so but it significantly affected
the weight the judge gave to the evidence.
• Liverpool RC Trustees V Goldberg (No. 3) Ch. Div. 2001 WLR 2237 – Court refused to admit an expert
due to the close personal and professional relationship with the defendant.
• Toth v Jarman [2006] EWCA Civ 1028 – expert failed to disclose the potential conflict of interest due to
his membership of a committee associated with the defence. Court did not find the expert to be biased
but emphasised the duty to disclose any potential conflict at an early stage.
© 2020 La Touche. All rights reservedPersonal Interest
3. Experts becoming emotionally involved with the case, party, or
overidentifying or sympathizing with their arguments
• Thorpe J finding re an expert’s “thoroughly partisan report” in Vernon v Bosley [1996]
EWCA Civ 1217 - “ their loss of objectivity might be ascribed to their daily attendance at
the trial which had tempted them into sharing attitudes, assumptions and goals with the
defendant’s litigation team” .
• Pre-existing therapeutic relationship
© 2020 La Touche. All rights reservedPersonal Interest
4. Owing allegiance to a particular profession making them reluctant to
criticise a fellow practitioner
• A survey referred to in case of Morris v Metriyakool (1981) 309 NW 2nd 910 showed that
only 31% of specialists and 27% of general practitioners said they would be willing to
testify on the plaintiff’s behalf in a scenario where a consultant had wrongly removed
one of the patient’s kidneys.
© 2020 La Touche. All rights reserved• Pecuniary interest in one of the parties
Financial • Experts paid by the instructing party
Interests
• Experts as an employee of one of the parties
© 2020 La Touche. All rights reservedPecuniary Interest - Kenneally v Dr Puy International
Ltd. [2016] IEHC 728; [2017] 487
Plaintiff’s expert witness was involved in analogous litigation in the US, the
successful outcome of which might have led to a substantial financial benefit
for the expert witness.
• Barton J. considered in detail the issue of an expert having a financial
interest in the case and ruled that the expert’s evidence should be admitted
but warned that the rejection of an application to exclude the expert
evidence was not a predictor of the weight which was likely to be given to
the evidence at the trial.
© 2020 La Touche. All rights reservedExperts paid by Instructing Party - Order 39 Rule 57(1)
Superior Court Rules
It is the duty of an expert to assist the Court as to
matters within his or her field of expertise. This duty
overrides any obligation to any party paying the fee
of the expert.
© 2020 La Touche. All rights reservedOrder 39 Rule 57(2)(b) Superior Court Rules
Every report of an expert delivered pursuant to these Rules or to any order or
direction of the Court shall:
disclose any financial or economic interest of the expert, or of any person
connected with the expert, in any business or economic activity of the party
retaining that expert, including any sponsorship of or contribution to any
research of the expert or of any University, institution or other body with
which the expert was, is or will be connected, other than any fee agreed for
the preparation by the expert of the report provided or to be provided in the
proceedings concerned and any fee and expenses due in connection with the
participation of the expert in the proceedings concerned.
© 2020 La Touche. All rights reservedDenis O’ Leary and Mercy University Hospital Cork
Limited and Khalid M. Aldi Chiad Al-Safi – Court of Appeal
195/2014
• The Plaintiff brought a case against the two defendants for alleged medical negligence in his
treatment. Following dismissal of his claim, he received a bill of costs that included medical expenses fees
of €57.7k for 2 medical experts and 47.9k for reviewing overnight transcripts.
• Mr. O’Leary brought an appeal of the High Court decision to the Court of Appeal on the basis that the fees
charged by the experts were so unusually high as to indicate a conflict of interest, or objective bias,
such as to render the trial unsatisfactory.
• Mr. Justice Peart stated that the Plaintiff’s case was essentially that the experts’ support had been bought,
which was in fact an accusation of unprofessional conduct. Mr. Justice Peart ruled that that the issue was
not suitable for dealing with on appeal as the doctors had no opportunity to address the matter and
dismissed the appeal in its’ entirety.
© 2020 La Touche. All rights reservedDenis O’ Leary and Mercy University Hospital Cork Limited
and Khalid M. Aldi Chiad Al-Safi – [2019] IESC 48
• Mr. O’Leary sought the reversal of the entirety of the decision of the Court of Appeal in the Supreme Court.
• Judgment was of Mr. Justice MacMenamin delivered on the 31st May 2019
• Mr. Justice MacMenamin identified that the determination of the Supreme Court was confined to the single
issue as whether there was a conflict of interest derived from the level of two medical witnesses’
renumeration and that this created a perception of objective bias rendering their evidence inadmissible
or of little weight.
• The judgment seeks to makes clear there is a real distinction between the test for objective evidence
applicable to a judge or decision maker and the duties of an expert to maintain independence and
impartiality.
© 2020 La Touche. All rights reservedDenis O’ Leary and Mercy University Hospital Cork Limited
and Khalid M. Aldi Chiad Al-Safi
• There were unusual aspects to the fee arrangements. Fees were not agreed or charged until after
the case was completed. This was found to be unusual and undesirable. Court said that fees should be agreed.
• The size of fees does not per se create a conflict of interest or derogation from expert’s duty of independence.
• The appellant did not establish a connection between the size of the fees and nature of the testimony.
• Appellant’s case lacked specificity in that it did not point to any particular evidence, illustrating a conflict
of interest that had affected that testimony.
• Offering a different opinion, even a firm one does not create a conflict of interest nor does it indicate any
breach of the Ikarian Reefer duties.
© 2020 La Touche. All rights reservedDenis O’ Leary and Mercy University Hospital Cork Limited
and Khalid M. Aldi Chiad Al-Safi
• Appellants cited the case of Goode Concrete v CRM Plc & Ors. [2015] IESC 780 – Supreme Court noted this
related to circumstances where a judge should recuse himself and related to the well-known “objective bias
test” which is not apposite in the context of expert witnesses.
• Fact that an expert witness is retained for renumeration does not reduce his duty to approach the issues in
an objective and impartial way.
• Question is whether in the circumstances the expert has so derogated from his duty to such a degree as to
either affect the weight given to it or its admissibility.
• The rigid application of the “objective bias test” to experts would pose insurmountable problems in litigation.
© 2020 La Touche. All rights reservedDenis O’ Leary and Mercy University Hospital Cork
Limited and Khalid M. Aldi Chiad Al-Safi
• Necessary to distinguish between objective bias and conflict of interest concepts. Conflict
of interest only applies to an expert witness where they acted in a manner that is at variance with
their duties so as to reduce the weight of their evidence or render it inadmissible.
• Court referred to the authorities cited as being unhelpful as they related to decision makers not witnesses
who are not impartial decision makers.
• Expert witnesses should err on the side of maintaining their objectivity and independence, avoiding
conduct which renders them open to an allegation that they have become an advocate/“part of a legal team.”
© 2020 La Touche. All rights reservedDenis O’ Leary and Mercy University Hospital Cork
Limited and Khalid M. Aldi Chiad Al-Safi
Overnight Transcripts
• Court could not see any objection to provision of overnight transcripts to the witnesses.
• Fact that it may be a departure from previous practice does not indicate a conflict of interest.
Contact with Legal Advisors
• Court did not see any problem with counsel wishing to consult with an expert witness from
time to time.
• Expert witnesses need themselves to ensure they do not allow a situation to evolve where they put
themselves or are put in the position of being seen as advocates rather than independent witnesses.
© 2020 La Touche. All rights reservedDenis O’ Leary and Mercy University Hospital Cork
Limited and Khalid M. Aldi Chiad Al-Safi
Duties of the Court
• The issues raised in this case are significant.
• Courts must be careful to ensure that a challenge to expert’s testimony is not conducted on the basis of
“ willing to wound but afraid to strike” approach. Challenging the independence of an expert risks the
“you too” response.
• An unjustified or unwarranted attack on an expert may be counterproductive to your case.
• Such matters should be dealt with at case management stage to avoid unnecessary delay in cross-examination
• Allegations of bias of should not be made lightly. Claims should not be permitted to be “forum shopping.”
© 2020 La Touche. All rights reservedDenis O’ Leary and Mercy University Hospital Cork
Limited and Khalid M. Aldi Chiad Al-Safi
“Adopting the tests in the Ikarian Reefer, it has not been shown that the evidence was anything other than
independent, objective and unbiased. No case has been advanced that there was some aspect of the evidence
which fell below the range of duties identified in this, the main relevant legal authority cited to the court.
There is, therefore, no sufficient basis for this Court to conclude that the trial was unsatisfactory, or that the
evidence was such as might have been rendered inadmissible. There is no sufficient evidence that would
warrant a finding that, even had the facts regarding the charges been known, it would have affected the weight
which the trial court would have attached to the evidence or its admissibility. In the circumstances I would
dismiss the appeal, and on the grounds set out in this judgment, uphold the decision of the Court of Appeal.”
© 2020 La Touche. All rights reserved• Court recognised many valuable proposals in LRC Papers regarding
Court’s
expert evidence, the innovations in the UK Civil Procedure Rules
1998 and Guidance on Duties of Experts (2012) produced by
Observations the English Civil Justice Council
in O’ Leary
Case • Also identified a strong case for Practice Directions addressing
the issue of expert evidence in a number of key areas
© 2020 La Touche. All rights reservedCourt of Appeal in O’ Driscoll ( a minor) v Michael Hurley &
the HSE [2015] IECA 158
• Court rejected Counsel’s case that the level of the medical expert’s fees charged and
agreed were calculated to or could introduce a conflict of Interest.
• Irvine J. criticised the possibility that an expert’s professional reputation might be treated
as a disposable and worthless commodity and observed that such witnesses should not be
allowed to become an open target for unrestricted questioning of a damning nature.
• Questioning relating to the level of fees should only be permitted where the challenging
party call expert evidence to prove the level of fees were so exorbitant that the Court
should consider the validity or weight of the evidence to be in doubt.
© 2020 La Touche. All rights reservedAppropriateness of Contingency Fees
R (Factortame ) v Secretary of State for Transport [2002] EWCA 932; (No. 8) [2003] QB 3812
• Lord Phillips on addressing the issue of conflicts of interest reiterated that it is desirable
that an expert should have no actual or apparent interest in the outcome of the proceedings.
• Such arrangements would not automatically preclude evidence, but such an interest should
be disclosed and may affect the weight of the evidence.
© 2020 La Touche. All rights reservedFactortame in Context of Ireland
In the O’ Leary case, McMenamin J distinguished the Factortame approach in England and
Wales stating it must be seen in that particular jurisdictional context, recognising that a rigid,
strict approach to “no foal, no fee” cases may restrict or even prevent access to a court by
meritorious individuals.
• He stated however as a general rule, there is an obligation on experts to fix their fee
beforehand so as to eliminate or reduce the possibility of their evidence being impugned.
© 2020 La Touche. All rights reservedExperts and Conflicts of Interest
Shay Sweeney & The Limerick Private Limited and The Voluntary
Health Insurance Board Limited [2020] IECA 150 - Faherty J, Power J and
Collins J
• Judgment of Mr. Justice Maurice Collins delivered on the 9th June 2020
© 2020 La Touche. All rights reservedShay Sweeney & The Limerick Private Limited and The
Voluntary Health Insurance Board Limited
• Plaintiffs planned to develop a private hospital in Limerick city and sought approval for cover from VHI.
• Plaintiffs’ case related to a challenge to the lawfulness of the VHI decision to refuse to approve the hospital
and agree to cover VHI members.
Plaintiffs’ case:
• VHI is in a dominant position in the market and its refusal is a breach of its position for which there is no
objective justification.
• Refusal is in breach of Competition Act, 2002 and Article 102 TFEU.
• Seeking damages and declaratory reliefs including a declaration that they are entitled to VHI approval.
Prof. Moore McDowell was retained as an independent economics expert by the Plaintiffs in October 2017 and
the VHI objected to his retainer in November 2017 as soon as they became aware of it.
Defendants brought an application to the High Court to have Prof. McDowell excluded as an expert witness.
© 2020 La Touche. All rights reservedShay Sweeney & The Limerick Private Limited and The
Voluntary Health Insurance Board Limited
Basis of VHI’s Application to the High Court
• Prof McDowell was and continued to be at that time retained by the VHI as an economic expert in two other
competition law actions against the VHI, arising from two similar decisions to refuse cover to 2 private hospitals
elsewhere in the State (the “RAS” and “CMC” proceedings).
• VHI argued it is a case where the Court should exercise its inherent, although undoubtedly rare jurisdiction to
exclude Prof. McDowell from acting as an expert witness.
• It would be unfair to allow Prof. McDowell to act an economic expert on the basis that a significant amount of
privileged and confidential information had been provided to him in the previous 2 cases.
• This case involved similar, if not substantially identical issues to the other 2 cases. VHI also argued that its
ability to instruct Prof. McDowell in the RAS and CMC proceedings would be undermined.
Evidence was provided by VHI that over the course of its relationship with Prof. McDowell he had obtained
significant insight into the operations of the VHI and that highly sensitive, privileged and confidential information
had been provided to him.
© 2020 La Touche. All rights reservedShay Sweeney & The Limerick Private Limited and The
Voluntary Health Insurance Board Limited
• Prof. McDowell provided an Affidavit stating that he is aware of his role as an independent expert, does not
retain hard or electronic copies of VHI materials provided to him and has not relied on any of that material
in his draft report.
• Prof. McDowell also gave an undertaking not to disclose any confidential information provided to him.
• VHI stated it was not suggesting that Prof. McDowell would intentionally misuse the material but that he could
not “unknow” or compartmentalise it, so as to prevent its inadvertent use or disclosure in these proceedings.
• Barrett J. in the High Court refused the VHI application though “in an abundance of caution” directed Prof.
McDowell to give the undertaking he had offered.
© 2020 La Touche. All rights reservedShay Sweeney & The Limerick Private Limited and The Voluntary
Health Insurance Board Limited – Court of Appeal Findings
• Court of Appeal recognised VHI’s complaint was that Prof. McDowell should be excluded not because of his
ongoing retainer with VHI, but because of the privileged and confidential information that was provided to
him and the risk it could be disclosed in these proceedings.
• Evidence before the Court points inexorably to the conclusion that Prof. MCDowell’s retainer by the Plaintiffs
gives rise to a significant conflict of interest.
• It is reasonable to suppose that Prof McDowell would be giving contrary opinions on whether the VHI’s refusal
constitutes an abuse of dominance, depending on whether he is retained by the VHI or a party challenging the
refusal. Court recognised that the interests of the Plaintiffs and VHI are manifestly, directly in conflict and
Prof. McDowell has allowed himself to be in a position where he is engaged to serve both.
• Court accepted that there may be characteristics of a fiduciary relationship between the expert and client but
it is not the same. Any such finding would have far reaching implications with experts being torn between
their fiduciary obligations to their client and their overriding duties to the court.
© 2020 La Touche. All rights reservedShay Sweeney & The Limerick Private Limited and The Voluntary
Health Insurance Board Limited – Court of Appeal Findings
In considering the various authorities cited, the Court recognised that experts can be involved in a variety
of ways in litigation, distinguishing between:
• experts who do not require or receive any privileged or confidential information, nor have any significant
involvement in litigation strategy or how pleadings are drafted, and
• experts who do require or receive such level of documentation and are involved in strategic decisions
in the litigation
Court found that “one size fits all” approach treating all experts as if they were in the same position may not
be an appropriate one and that careful regard must be given to their actual role in litigation.
© 2020 La Touche. All rights reservedShay Sweeney & The Limerick Private Limited and The Voluntary
Health Insurance Board Limited – Court Of Appeal Findings
Test to be applied
• “The threshold therefore is whether there is, on the evidence here, a real risk (as opposed to a likelihood)
of disclosure.”
• Court found that the applicable test is not that applied by the High Court.
Offer of an Undertaking
• Court was not persuaded that the undertaking proffered on Prof. McDowell’s behalf would be “ a sufficient
safeguard against the risk of inadvertent or subconscious breach”.
• The expert’s overriding duty to the court does not involve the abrogation of a client’s entitlement to protect
confidential, especially privileged information. An expert cannot be compelled to disclose confidential
information, whether by reference to Order 39, Rule 57(1) or otherwise.
© 2020 La Touche. All rights reservedShay Sweeney & The Limerick Private Limited and The Voluntary
Health Insurance Board Limited – Court of Appeal Findings
• Court found that Prof. McDowell put himself into a position of obvious conflict of interest, belatedly
recognised before the Court of Appeal when the Plaintiffs acknowledged that there would be “no reality”
to him continuing to act for the VHI if permitted to remain an expert for the Plaintiffs.
• In the circumstances and contrary to the view of the High Court, the Court of Appeal found that there was
nothing overbearing or inappropriate about the VHI’s application and allowed the appeal.
© 2020 La Touche. All rights reservedExpert as an employee of one of the parties
Mohammed v Financial Services Authority [2005] UK FSM FS MO13
Applicant argued that a senior member of the company that employed the expert was a
member of a regulatory committee that had decided to bring proceedings against the
applicant.
The Court emphasised, although not criticising the expert that he could not be considered
to be independent, and the court was unable to give his evidence much weight.
Ireland
Approach of Irish courts is not to take the employment as demonstrating apparent bias but
to take that fact into account when assessing the weight of the evidence. Galvin v Murray
[2000] IEHC 78
© 2020 La Touche. All rights reservedIntellectual Interest
• Issue of experts giving biased evidence when motivated by a professional viewpoint.
• Courts have criticised experts for a lack of balance and partiality in giving evidence and held
they lack an objective approach.
In Petursson & Ors v Hitchison 3G UK Ltd. [2005] m EWHC 920 (TCC) 9th May 2005
Kirkham J. considered the experts criticisms of the other sides’ experts’ reports must be
viewed in light of his partiality in giving evidence. She was reluctant to consider the rest of his
evidence and rejected the claimant’s arguments.
© 2020 La Touche. All rights reservedIn Summary
• Courts have jurisdiction to exclude expert evidence - “rare and exceptional circumstances”, to be exercised
sparingly and with caution.
• Importance of proper conflicts of interest checks at the outset.
• Disclosure of any previous or existing professional, personal or social relationships with any of the parties.
• Disclosure of any knowledge gained through previous engagements - access to confidential and/or privileged
information, legal advice or litigation strategy which may give rise to risk of conflicts or impugnment.
• Best practice requires written evidence of expert’s role and duties in the case, including the brief and fees
agreed at an early stage, before the case starts.
• Communication of any objection to expert/expert evidence should be at the earliest possible opportunity,
at the case management as opposed to trial stage.
• Any challenge to expert evidence on the basis of truthfulness, bias or conflict of interest should be specific
and not mere allegation or supposition but supported with expert evidence.
© 2020 La Touche. All rights reservedIn Summary
• Challenges to expert evidence, on the basis of bias on the expert’s part or conflicts of interest should be more
than general in nature and should specify what specific evidence is being alleged to have been tainted.
• The provision of overnight transcripts to experts is not a conflict of interest.
• Lawyers consulting with experts during a hearing is not a conflict but experts must take
responsibility for not being put into as position of becoming an advocate for the instructing party.
• An unjustified or unwarranted attack on an expert may be counterproductive to your case. It should not be
done lightly.
• Experts need to remain objective and guard against getting overinvolved or too close to the issues or parties.
• Experts need to ensure that any personal or professional views (articles, papers, presentations) or professional
alliances do not influence their approach or findings in such a manner that it may taint or undermine their
objectivity and overriding duty to the court to be independent.
© 2020 La Touche. All rights reservedThank you for listening
Any questions…..
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