The 'Pinkus Trap' – What is it and what are the implications for the expert witness?

As expert witnesses, what do we need to know to ensure we don’t fall into what has become known as the ‘Pinkus Trap’ and find ourselves facing a painful cross examination in court, judicial criticism and potentially, time at her majesty’s pleasure.

In this article, I look back at the case of David Pinkus v Direct Line, which went to trial at Royal Courts of Justice in January, February and March 2018, and the origins of the Pinkus Trap. I consider the implications for the expert witness who might be tempted to seek the advice or supervision of a third-party expert without disclosing the matter to the court.

?What is the Pinkus Trap?

I am not aware of any formal definition, but the Pinkus Trap is essentially the undisclosed interaction by a legally instructed expert witness with a third-party mentor or “secondary expert”, within the context of active/unsettled civil litigation.

?Who coined the term?

William Audland QC who was Counsel for the Defendant in the case of Pinkus v Direct Line.

?What happened in Pinkus vs Direct Line?

During the proceedings, when preparing the neuropsychology experts’ joint statement, the Claimant’s expert sent an email addressed to her (undisclosed) colleague/mentor to the Defendant’s expert in error. It then became apparent that the Claimant’s expert was seeking opinion and advice from her colleague/mentor regarding "various and very specific points" including inconsistencies in the claimant's evidence in particular. The Defendant subsequently applied to the Court for the disclosure of the exchange of emails between the experts. The application was heard by His Honour Judge Cotter QC ahead of the trial.

?What were the views of HHJ Cotter QC on this matter?

Judge Cotter’s views on this matter are included in the judgment of the trial judge, HHJ Coe, on 2nd July 2018 after the trial, which took place at the Royal Courts of Justice (David Pinkus v Direct Line).

The views of Judge Cotter included:

• ?… it is very important that the court and the other side know that the expert’s evidence has not been bolstered or added to by any third party.
• ?… an expert being challenged is entitled to know who else he or she is effectively discussing the case with and the full expertise and knowledge of any “secondary” expert.
• ??… the Practice Direction (PD35) helpfully sets out that expert evidence should be the independent product of the expert, uninfluenced by the pressures of litigation. The word “independent” is important.
• ... ?experts should assist the court by providing objective, unbiased opinion on matters within their expertise, and again I would stress the word, “their” in conjunction with expertise. It is important that courts and, indeed, any other expert or party knows the limit of that expertise…
• ?… the fact and nature of peer supervision should have been disclosed within the expert’s report and/or the discussion. The failure to do so is not a minor error and is at the root of the difficulties that have led to this application (the Defendant’s application for the disclosure of the exchange of emails between the experts).
• Any expert who discusses the content of a proposed report in detail with another expert under a peer review arrangement must be extremely cautious if he or she thinks it is not appropriate to disclose the fact and extent of that arrangement. Indeed, I would go as far as to say the circumstances in which he or she cannot properly do so must be very limited indeed.?
• I do not consider the emails to be privileged. I do not accept that they were covered by the discussion of experts under 35.12(4).?

?Any expert who discusses the content of a proposed report in detail with another expert under a peer review arrangement must be extremely cautious if he or she thinks it is not appropriate to disclose the fact and extent of that arrangement. Indeed, I would go as far as to say the circumstances in which he or she cannot properly do so must be very limited indeed.

• ?… (the Claimant’s neuropsychology expert) can properly be cross-examined on the extent of assistance provided (by her third-party colleague). It would be unjust to prevent the Defendant from being able to adequately do so.

?What are the key implications for instructed expert witnesses??

If you, as an expert witness in an active case, are found to have discussed that case with a third-party expert/colleague/mentor, your discussions shall not be privileged in the eyes of the Court.

You are required by the court to disclose the fact that you have sought the opinion of another expert and you must therefore very carefully consider the potential consequences of not doing so. It seems highly likely that you will be cross-examined so as to establish the extent and impact on your expert evidence of the involvement of the other expert and, thereafter, there must be a considerable chance of you being subject to adverse judicial comments / judicial criticism.

However, the risks of falling into the Pinkus Trap may in fact be worse, indeed, much worse. When you sign the Statement of Truth at the end of your report, you confirm that you have made clear which facts and matters in your report are within your own knowledge and which are not, and you confirm that the opinions you have expressed represent your true and complete professional opinions on the matters to which they refer.

You also confirm that you understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. If you are found to be in contempt of court, you will be liable for punishment by the court, either by way of a fine or by way of imprisonment.

?What are the key implications for third-party experts/colleagues/mentors?

If you, as a third-party expert/colleague/mentor discuss an active civil case with an instructed expert witness, the opinion of the Court on the matter of your involvement is very clear. For doctors, training as a medical expert witness is, in the eyes of the Court, not the same as training in clinical practice, where learning from active cases is widely considered appropriate and indeed an important part of learning. Any training, supervision and mentorship of your expert witness colleagues should not take place within the context of an active legal case, unless the instructed expert witness entirely accepts the need for transparency and agrees to disclose the details of his/her interactions with you to the Court.

?In summary – key learnings

• ?If you, as an expert witness in an active case, seek the advice or second opinion of a third-party expert, you are obliged to disclose the details of the interaction and the impact of the interaction upon your expert evidence to the court.
• ?Failure to do so, in the eyes of the court, “is not a minor error”. Not only do you risk exposing yourself to an extremely uncomfortable cross examination in the courtroom and risk being subject to adverse judicial comment and the associated highly undesirable consequences of such judicial criticism on your career as an expert witness, but you also risk making a false statement in a document verified by a statement of truth without an honest belief in its truth and therefore be liable for punishment by the court.

Article written by: Dr Jon Valentine FRCA FFPMRCA FRCP, Consultant in Pain Medicine and Managing Director at Pain Expert Ltd.

If you are interested in working as a pain expert witness, or you are an instructing lawyer looking to appoint an experienced Pain Specialist, then please get in touch www.pain-expert.org.