Background

A husband and wife sought compensation for “debilitating and lifelong” respiratory system injuries due to exposure to toxic chemicals from the installation of spray polyurethane foam (SPF) insulation in their home.

They said that the Installer failed to ensure that they were absent from the house during installation, and failed to ensure that the house was properly ventilated post the installation.

The Installer accepted that the chemicals involved were highly toxic – his staff were required to wear a full protective suit with breathing apparatus – and also that the claimants suffered from Reactive Airways Dysfunction Syndrome (RADS) as diagnosed – but disputed negligence and causation.

The Installer’s defence relied heavily on the evidence of an expert toxicologist – which was rejected in its entirety, and the plaintiffs won substantial damages.

The Installer appealed, arguing that the trial Judge was wrong to exclude all of the Toxicologist’s evidence, given that it was uncontradicted by the plaintiffs.

“Hired Gun” experts

In Duffy v Brendan McGee & Anor [2022] IECA 254, the Irish Court of Appeal set out the importance of expert impartiality, and commented on the challenges posed by the use of so-called “hired gun” experts:

“Very frequently, the evidence of the expert will be decisive to the outcome, particularly where, as here, there are complex scientific or medical issues arising.  Some of the most high-profile miscarriage of justice cases have arisen from serious failures on the part of experts.  It is right therefore that the law expects and demands the highest standards of experts.  This has found expression in many judgments and more recently, rules of court.

“Unfortunately, the hired gun syndrome is one with which all lawyers are familiar and is perhaps an inevitable by-product of adversarial litigation…It may be an overstatement to say that one can always get some expert to subscribe to one’s point of view, but there is nothing to prevent litigants with deep pockets consulting any number of experts until one is found who will support the case being made.  As matters stand, there is no obligation to disclose such information to an opponent.

The Evidence of The Toxicologist

The Appeal Court identified several concerns with the Toxicologist’s evidence, including:

• “…rather extraordinarily” he had purported to give an opinion on Irish law which was “entirely beyond his competence and entirely inappropriate for a supposedly independent expert.”
• He did not rely on his own research or expertise, but rather on two papers which were not independent peer reviewed scientific papers.
• His evidence was predicated on the Installer’s instructions on strongly disputed crucial issues, and he “made no attempt to consider, and evidently avoided considering, any alternative scenario.”
• He repeatedly accused the plaintiffs of lying, “referring to their evidence as deception and misrepresentation” and “steadfastly refused to withdraw his allegations of deception” despite clear evidence to the contrary.
• He purported to give a medical opinion on psychiatric and skin complaints, “an area clearly outside his competence and advanced for no obvious purpose other than attempting, again improperly, to undermine the plaintiffs’ case.”
• He relied upon documents from the EPA to support his arguments but in cross-examination “sought to disavow the documents, saying the EPA was wrong.”
• He gave evidence that was contradicted by his own statements in a podcast interview titled “SPF Lawsuit Avoidance” (which is still accessible via youtube).

The Court concluded:

“…any one of these matters on its own would tend to strongly suggest an absence of objectivity and impartiality on the part of [The Toxicologist], but taken in combination, can only be described as a wholesale abdication by [The Toxicologist] of his duty as an expert witness.  I share the trial judge’s experience of never having encountered such an approach to giving evidence by an expert witness before our courts.  [The Toxicologist] impermissibly donned the mantle of a partisan advocate in his efforts to discredit the claim of the plaintiffs.

It is simply not possible to adopt some kind of curate’s egg approach to this evidence, as counsel for [the Installer] suggested, and I am satisfied that the trial judge was perfectly correct to exclude [the Toxicologist’s] evidence in its entirety.  There was in this case such an abject failure to comply with the most basic obligation of an expert, namely, to be objective and impartial, as to render all of [the Toxicologist’s] evidence inadmissible.”

Comment

There is no obligation to disclose “expert-shopping” in Ireland, which is true for most jurisdictions.  The South Australian District Court has an anti-shop framework – a party seeking an expert report must provide a copy of the instructions to the other parties (Uniform Civil Rules 2020, rule 74.2), and parties must share copies of all expert reports, whether they intend to rely upon them, or not (rule 74.3) – but I’m not aware of anything similar in any other jurisdiction.