Although usually paid by one side or the other, expert witnesses must give an unbiased opinion. Of course, you only employ an expert witness who supports your case, but if the expert changes their opinion during the case, can you replace them?

The following is a personal injury case, but the principles equally apply to construction.

In March and July 2001 Mary Stallwood was involved in two road accidents. As a result she was reduced to working part-time as a freelance accountant earning £14,000 rather than the £28,000 she had earned previously. She claimed £151,000 for past and future loss of earnings. Her expert’s report said she would never fully recover. However, the defendant’s expert thought her ongoing condition was unrelated to the accidents and she had recovered sufficiently to return to work within two weeks.

After the experts met their positions shifted. They agreed that she had recovered sufficiently to have a full return to work within two years. Her expert also agreed that her inability to work four years later was unrelated to the accidents.

Stallwood tried to swap him for another expert surgeon, but in her application in court, the judge referred to his own back pains that did not stop him from judging and refused her application.

On appeal, the court held that, as a rule, experts could not be replaced merely for a change of mind. However, the court felt that the previous judge’s attitude had prevented him examining all the relevant matters. As she would have an understandable sense of grievance if she could not use her new expert, she was permitted to change.

Moral: Be sure of your expert.

Source

Construction Manager

Postscript

Case: Mary Stallwood v G H David; (M A Adamson Queen’s Bench Division, October 25, 2006)