Supreme Court challenge to expert witness fees

Author: Leanne Kiernan, Treasa Walsh, Sinead Taaffe

June 21, 2019

In the recent Supreme Court decision of O’Leary v Mercy University Hospital Cork Ltd [2019] IESC 48, Mr Justice MacMenamin ruled that expert witnesses in a medical negligence claim were not biased by virtue of the fees that they were paid.

High Court

The Plaintiff, Mr O’Leary, brought a case against Mercy University Hospital and a consultant urological surgeon for alleged medical negligence in his treatment. His complaint concerned the alleged failure to diagnose deterioration in his left kidney in time for remedial measures to be taken. Mr O’Leary’s case was dismissed and thereafter he was furnished with the respondents’ bill of costs. The bill of costs amounted to an unusually high figure of €518,291.51, including expert medical witnesses’ fees of €57,705.60 and €47,979.14 for reviewing overnight transcripts. The expert witness’ fees were subsequently reduced to €48,000.

Court of Appeal

Mr O’Leary brought an appeal of the High Court decision to the Court of Appeal on the basis that the fees charged were so unusually high as to indicate a conflict of interest, or objective bias, such as to render the trial unsatisfactory. Mr Justice Peart stated that Mr O’ Leary’s case was essentially that the experts’ support had been bought, which was in fact an accusation of unprofessional conduct. Mr Justice Peart ruled that that the issue was not suitable for dealing with on appeal as the doctors had no opportunity to address the matter, and dismissed the appeal in its’ entirety.

Supreme Court

Mr O’Leary sought the reversal of the entirety of the decision of the Court of Appeal. Mr Justice MacMenamin identified that the determination of the Supreme Court was confined to the single issue of “whether the remuneration of the respondents’ witnesses raised a serious question as to their independence”. The court considered the affidavit of the professional costs accountant that in relation to the fees of two of the medical experts, he had never previously encountered or heard of such a level of costs.

Mr Justice MacMenamin criticised the fee arrangement in this case which he commented was unusual and undesirable, as it appeared the fees were not agreed or charged until after the case had concluded in the High Court. Nevertheless he concluded that “adopting the tests in the Ikarian Reefer (Ikarian Reefer”, National Justice Compania Naviera SA v Prudential Assurance Company Limited [1993] 2 Lloyd’s Rep 68), it has not been shown that the evidence was anything other than independent, objective and unbiased”. In dismissing the appeal he found that even if the charges had been known at the High Court trial, there was no sufficient evidence that it would have affected the weight which the trial court would have attached to the evidence or its admissibility.

Although an objective bias or conflict of interest was not found to exist on the basis of the unusually high fees charged by the expert witnesses in this matter, Mr Justice MacMenamin’s comments highlight the importance of expert witness fees being agreed in advance of the commencement of a trial.

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