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One Joint Conclave for Many Experts

Can and should experts of different areas of expertise participate in the same expert conclave? In the matter of Budgen v The Congregation of Religious Sisters of Charity of Australia [2020] NSWSC 493, parties weighed up the pros and cons whilst the court found in favour of a single joint conclave.

Background and Key Issues

The Plaintiff’s husband had completed suicide after developing depression whilst undergoing coronary artery grafts. [4] The Plaintiff argued that the stroke her husband suffered during the procedure, and which precipitated his depression, was the result of the Defendants’ negligent failure to administer aspirin over the course of her husband’s stay in hospital.

The parties both engaged experts to comment on appropriate uses of aspirin before and after surgery. The last consent orders drafted by the Plaintiff agreed to the use of two Neurologists and three Cardiologists.

Both parties acknowledged that the areas of expertise of the witnesses were distinct despite there being some overlap in their knowledge and training. However, the Plaintiff argued that there should be two conclaves (split according to the expert’s areas of expertise) as opposed to one with concern for:

  • Relevance of evidence: the experts’ reports addressed different negligence claims in the matter (some pertaining to issues beyond the administration of aspirin);
  • Costs: parties would be “charge for experts’ time where they are sitting idly while the others comment on issues outside their field of expertise” [22]); and
  • Efficiency: a single expert conclave would require finding a time appropriate for all 5 experts to convene. It would also risk allowing experts to comment on issues outside their respective areas of expertise, compromising the reliability of evidence and further contributing to costs.

The Second Defendant maintained that there should be one expert conclave with a view to:

  • Efficiency: the experts could avoid the inefficiencies signposted by the Plaintiff by ensuring that experts comment on matters only within their own area of expertise; and
  • Avoiding the arbitrary separation of issues: the Second Defendant argued that the Plaintiff’s use of the term ‘neurology’ was “opportunistic” [25]; only later in the proceedings did the Second Defendant use the term in a discrete sense to justify a separate conclave.

Decision

Associate Justice Harrison held that experts should answer questions that pertain to their own area of expertise in one joint conclave.  The Court’s key concerns with efficiency and holistic comprehension of the issues of fact in the matter:

“… [T]he experts rely upon each other’s reports and address overlapping issues. It would be difficult, and inefficient, for a trial judge to deal in separate reports addressing overlapping issues. In the joint conclave, specialists will choose to answer the questions that fall within their speciality. As such, it is my view that the neurologists and the cardiologists should participate in a single joint conclave.” [29]

Takeaways

Courts permit experts to participate in single joint conclaves, even where experts’ fields of expertise are diverse or overlapping.

Lawyers should take this matter as a note to hire the number and kinds of experts that the complexity of the case requires. The Court’s willingness to go ahead with the single joint conclave with many experts highlights its capacity to deal with numerous relevant areas of expertise and give appropriate weight to the perspective from each area of expertise.

Notably, the case highlights the increasing importance of Facilitators to the modern-day expert conclave. The fact that courts are willing to proceed with multi-disciplinary expert witness conclaves demonstrates that courts maintain confidence in the ability of facilitators to guide discussions efficiently and effectively.