Non attendance at expert conference: Report exclusion

Dailhou v Kelly [2014] NSWSC 1213 provided the court’s reasons for exclusion (in effect) of part of an expert’s opinion, as the expert had not attended a conference of experts prior to the hearing.

At [4] the trial judge explained the relevant objection:

..These matters are objected to on the basis that Dr Buckley did not participate in the joint conclave of experts which was attended by Dr Bodel, an orthopaedic surgeon qualified by the plaintiffs, Dr Schutz, an orthopaedic surgeon retained by McDonald’s (who were the defendants in other proceedings which have been resolved but which were to be heard together with these proceedings), and two orthopaedic surgeons qualified by the defendants: Dr Caldwell, who specialises in the knee and Dr Burrow, who specialises in the shoulder.

The court ruled at [5]:

Although it might be said that the evidence of Dr Buckley ought be taken into account since he has examined the plaintiff and expressed an opinion, it would, in my view, not be consistent with the principles of case management and efficient conduct of the proceedings which are provided for in the Civil Procedure Act 2005 (NSW ) to allow his report to be relied upon on all issues. Directions made by the Court for the orderly and efficient conduct of proceedings ought not be ridden over roughshod by parties who serve reports of experts who have not participated in the joint conclave process.

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