Milking the system?

When the right expert witness can make a case, it is not surprising the lengths to which solicitors will go to secure their evidence. Indeed, in April this year, during the hearing of evidence for the Creutzfeld-Jakob disease case, such was the eminence of Professor Brian Matthews, Professor Emeritus of clinical neurology at Oxford University, that the case was moved from London and his evidence was taken at his Oxford home where he was receiving kidney dialysis.

The trial began with families of eight child recipients of human growth hormone (hGH) injections suing the Medical Research Council and the Department of Health and Social Services for negligence and damages following deaths from CJD-contaminated hGH.

In his July judgment Justice Morland found the DHSS negligent. Eighteen of the 1,908 British children treated during the 26-year programme have now died of CJD. Another is dying and one, possibly two more, are believed to be showing initial symptoms of the fatal disease – the human equivalent of mad cow disease.

The trial involved 11 expert witnesses. Plaintiff experts from the UK and abroad, have backgrounds in chemistry, veterinary neuropathology, virology, paediatric endocrinology and drug policy.

Ranged against the seven plaintiff witnesses were four Government witnesses. These included two prominent members of the CJD Surveillance Unit based in Edinburgh, an endocrinologist and a prominent US researcher on CJD.

But despite the eminent experts involved, one barrister in the case says: “You shop for your expert like you shop for cheap fashion.” He adds that the plans of solicitors to approach a person not known for being either a plaintiff or a defence expert can backfire – an untried expert may say nothing that will help the client's case.

Melbourne barrister, Jack Rush QC, who led the only medical negligence case in Australia where exemplary damages were awarded against a doctor, spent a week watching the CJD case.

For him, Lord Woolf's proposal for one court-appointed expert witness would have “no foundation”.

He says the “golden rule in calling an expert is to ensure they are confined strictly to their area of expertise and, particularly in cross-examination, it should be stressed that they do not volunteer information”.

In April next year Rush will lead Australian plaintiffs in a case seen as the successor to the English case.

Neuropathologists, psychiatrists and a virologist will be among the 15 experts expected to be called.

A further 25, including doctors who oversaw injections of hGH and a fertility drug also derived from human pituitary glands, will be called by the Australian Government and Commonwealth Serum Laboratories, which manufactured both drugs.

At issue are damages sought by a woman known only as APQ. She received the fertility drug and although she has no CJD symptoms, she claims that the mere communication of the news by a government, which sponsored the drug, and that she may one day contract CJD – which can remain latent for up to four decades – has caused her to suffer a psychiatric illness consistent with post traumatic stress disorder.

A few English lawyers – who will be gearing up for a similar case in the UK – may be watching the parade of experts in a spot of window-shopping.