Expert evidence: Inappropriate expertise, misframing of questions.

Morocz v Marshman [2015] NSWSC 149, whilst a short interlocutory judgment of Harrison J, deals with some interesting points regarding the assembly of expert evidence for a proposed medical negligence trial. While the debate arose from an application for expert evidence by videolink, the court took a broader look at the evidence, excluding a number of reports.

That broader look saw a report excluded as being held inadmissible. It was said at [14] to offer no identifiable reasoning to support the conclusions and in any event provided opinions outside the author’s area of expertise (he had never performed the surgery in question).The author had not examined the claimant (at [15]). A similar order was made in relation to a report discussed at [37] – [38].

A report from a different practitioner at [22] whilst referring to some scientific evidence did not identify it or critically evaluate it. At [33] the court also observed that an expert should not be directly asked to answer an ultimate question in the proceedings – relevantly, were the effects of a procedure fairly and appropriately represented to the claimant.

A report from a research scientist (not a medical practitioner) was excluded as the questions put to her, of relevance to the litigation, were not within her area of expertise.[43]. A similar result flowed in relation to another proposed expert witness.

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