Expert Matters: Advocacy undermines an expert

“He was prepared to mould his views, or acquiesce in the moulding of his views, into a form which would, to the best extent possible, assist the case of the party that had retained him”

Expert witnesses have an overriding duty to assist the Court on matters relevant to the expert’s area of expertise¹. They are not acting as advocates. Where independence is breached, the Court may place little or no reliance on an expert’s report.

Nelvin Tam, a Senior Executive Analyst in our Sydney office, reviews a recent Federal Court case that found changes made to draft reports indicated a lack of independence, and resulted in no weight being placed on the expert’s report.

Snowdale Holdings Pty Ltd produces chicken eggs in Western Australia. Some of these eggs are advertised and labelled as ‘free-range eggs’. 

ACCC alleged that that it was misleading or deceptive conduct to represent the eggs as ‘free-range eggs’ because the conditions at two Snowdale farms did not allow hens to leave sheds to access open ranges. 

Mr G was Snowdale’s expert witness. He was an operations-livestock manager and had over 20 years experience in managing broiler breeder farms. He had served on consultative committees for quality assurance programs and visited egg farms all over Western Australia. 

Mr G’s evidence related to his observations of the conditions on multiple visits to the Snowdale farms, including factors that could have affected the chicken’s behaviours. However, the focus of the legal debate was not the content of Mr G’s report, but rather the process between the solicitors receiving the first draft of his report and his final report being issued. 

Mr G was required, during cross-examination, to produce drafts of his report. The first two drafts, sent to Snowdale’s solicitors for discussion on 11 and 12 February 2015, were three and a half pages long. A draft document, described as Mr G’s report, was generated by Snowdale’s solicitors and sent to Mr G on 13 February 2015. That document totalled almost nine pages. There were a further seven iterations of the document, based on the draft report produced by Snowdale’s solicitors, until the final report was filed.

ACCC contended that this progression of the draft reports showed that Mr G was amendable to adopting changes whose primary purpose was to assist Snowdale’s case; and that this undermined his independence. ACCC listed examples, including:

Mr G was unable, in cross-examination, to provide persuasive explanations for the amendments to his draft reports. In some instances, he was not able to say why changes had been made, or who had made them. 

Further, the trial judge drew attention to:

He also found that: 

“Mr [G] did not act as an independent expert… Mr [G] did not approach his role as an expert witness from the position of a person who owed a paramount duty to the Court to express an independent opinion. Rather, I find that Mr [G] was prepared to participate in a cooperative venture with Snowdale and its solicitors whereby he was prepared to mould his views, or acquiesce in the moulding of his views, into a form which would, to the best extent possible, assist the case of the party that had retained him.”

This case highlights two significant matters for lawyers in approaching expert evidence:

Draft expert reports are discoverable in some jurisdictions. If lawyers or experts have not done the right thing, those drafts may be used against them at trial.
 

Endnotes

1. Practice Note CM 7, Federal Court of Australia. Other jurisdictions have similar requirements.