Cobbetts column: How expert is your expert witness?
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By Duncan Hope, legal director at Cobbetts LLP THE recent BMJ report, written by Sunday Times journalist Brian Deer, stated that the alleged link between the MMR vaccine and autism was based on “bogus data” and had been “manufactured at a London medical school”. However, the most startling thing from a legal perspective was the direct link between this “bogus data” and the role of the expert witnesses in a joint action brought by parents against manufacturers of the vaccine. That is, the BMJ article specifically called into question not just the accuracy of expert evidence, but its veracity. The report made various suggestions including that the aim of the Lancet paper which identified the alleged link (published in the Lancet on 28 February 1998) had been to assist a claim against the manufacturers of the MMR vaccine. Dr Wakefield (one of the most prominent authors of the paper) had been working for solicitors acting on the claim for two years before publication of the paper. He therefore had a direct and undisclosed financial interest in the research. It was also suggested that the data behind the report was distorted, altered and misrepresented to support the claim. Subjects (which were few in number) had been pre-selected in a way which made them more likely to support the claim eg from families who were already suspicious of vaccines. Dr Wakefield had also identified a link in support of an application for legal aid before undertaking the actual work. Dr Wakefield’s work was done at a time before the current rules which govern civil litigation in England, the Civil Procedure Rules (“CPR”), came into force. Prior to the introduction of the CPR it was not uncommon for experts to produce reports which were partisan, simply identifying arguments which supported the positions of their instructing party. However, it is probably fair to say that even on the Rules as they stood at the relevant time, the evidence given was unsound. Under the Rules on Expert Evidence: 1 an expert’s primary duty is to assist the Court. This overrides any duty to the instructing party; 2 experts are required to address their reports to the Court; 3 experts are not advocates for one party, giving opinions which are impartial, objective, balanced and not influenced by pressure from the instructing party; 4 experts are required to address all material points rather than those which promote their opinion or the position of the instructing party. Facts which detract from an expert’s opinion must be brought to the attention of the Court; 5 experts must provide details of the information upon which they have relied in coming to the conclusion set out in the report; 6 if there is a range of opinion on the relevant issues, the expert must summarise the different opinions; 7 experts should make it clear if they are not qualified or do not have sufficient information to comment on a particular issue or to give a definitive opinion. The rules are intended to ensure that the Court is aware of all relevant opinions or facts for the purposes of considering the weight to be given to expert evidence. Had the report in relation to the alleged link between the MMR vaccine and autism been prepared in accordance with the Rules on Expert Evidence the MMR scare could have been avoided and lives saved. Duncan Hope More articles in
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