30/03/2023 0 Comments
Evidence rejected by the court as it was far too one-sided and failed to be objective.
Evidence from a highly qualified expert witness retained by an insurance company was rejected out of hand by the Court of Appeal recently because, in their opinion, the expert was much too partisan in his evidence and lacked the necessary objectivity in what he told the court.
The plaintiffs hired the defendant company to insulate their house using a product called Icynene, a type of spay polyurethane foam (SPF) which was highly toxic. The plaintiffs stayed the night in their house and closed some of the windows as it got cold. Sometime later, they contracted a severe type of reactive airways disorder and sued the defendants claiming the company provided inadequate or no ventilation and the family should not have been allowed back in to the house during the insulation and for twenty four hours after it was completed.
The defendants sourced an expert toxicologist from America, Dr. George Thompson, who essentially said all the chemicals in the house dispersed within ninety minutes and there was no negligence.
The High Court found the expert witness was hardly independent and too partisan in his evidence, even seeking to denigrate the character of the plaintiff. He relied on research papers commissioned by SPF companies. He claimed the old fiberglass, which was removed, had caused their illness and he even gave his views on aspects of liability under Irish law. The judge rejected the evidence given by Dr. Thompson in its entirety.
The plaintiffs were awarded substantial damages and so the defendants appealed to the Court of Appeal. The important question was whether the trial judge was correct to exclude the evidence of Dr.Thompson.
The court acknowledged the long standing principle that an expert witness was there to assist the court and the court was under no obligation to accept such evidence even if uncontradicted.
In looking at the evidence, the court referred to the “ hired gun syndrome” in that experts always put the interests of their own clients first in what are adversarial proceedings . Well-resourced parties will cherry pick several experts until one is found who favours their case.
The duty of an expert witness is to be objective, the court stressed and, in this particular case, the appeal court found the witness’s evidence to be quite deficient. Dr. Thompson’s report omitted any reference to ventilation, despite this being critically important to SPF installation. His evidence relied utterly on the defendant’s instructions on crucial issues. He had accused the plaintiff of lying even when confronted with evidence vindicating the plaintiff. His evidence was so one sided as to be partisan.
The appeal court found the High Court was correct in excluding all of Dr. Thompson’s evidence. The court further found that the defendants had completely failed to take all reasonable steps to ensure the plaintiff’s health and safety. The plaintiffs’ own expert was of the opinion that it was more than likely the injuries were caused by exposure to the SBF chemicals. The appeal was dismissed.
Duffy v Brendan McGee t/a McGee Insulation Services IECA 254.