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The end of ‘expert shopping’ for medical reports

Historically, it had always been assumed by claimant lawyers that, if their client instructed a particular expert but then did not want to rely on the content of that expert’s report in their case, then he or she could instruct a different expert without having to disclose the first report.

However, the recent case of Edwards-Tubb v JD Wetherspoon Plc [2011] has ruled against this assumption.

In this case, Ricky Edwards-Tubb, the claimant, was a chef who was injured in a fall at work. He provided the defendant with the names of three orthopaedic experts that they might instruct. No objection was received.

The claimant proceeded to instruct a Mr Jackson, one of the experts named on his list. However, his report was never relied upon or disclosed. Proceedings were issued, by which time liability had been admitted. However, the particulars of claim were supported, not with Mr Jackson’s medical report, but a report from another orthopaedic surgeon who had not previously been nominated to the defendant. Within this report, the expert commented that Mr Edwards-Tubb had previously seen Mr Jackson. The defendant was therefore put on notice on two counts that another expert report had been obtained, and subsequently made an application to the court for disclosure of Mr Jackson’s report.

The Court of Appeal considered the important question of whether a claimant who obtains a medical report from an expert, chooses not to rely on it but then seeks the court’s permission to obtain a report from a different expert, must disclose what the first expert said.

On listening to both parties, the Court of Appeal ruled in favour of the defendant and the claimant was ordered to disclose Mr Jackson’s report. The result of this judgment now means that claimants are effectively limited to the first expert that is instructed and puts an end to any possibility of ‘expert shopping’.

Posted on Sep 21st, 2011 by Lyons Davidson