A reclaiming motion challenged the entitlement of the medical witnesses in a case relating to asbestosis to rely on epidemiological literature.
Held: ‘In my opinion, the medical witnesses in this case were entitled to refer to medical literature, and in particular they were entitled to refer to published papers by epidemiologists even though they themselves were not epidemiologists. All the medical witnesses in this case were experts in chest disorders. They were there thus fully entitled to have regard to medical literature bearing upon that subject. Of course, where a medical witness has made reference to the published views of epidemiologists, it must be kept in mind that these views of epidemiologists have not been subjected to testing by cross examination.’ After referring to Abadom: ‘I am accordingly satisfied that the medical witnesses were entitled to refer to the views of epidemiologists, and to adopt their views. On the other hand, it must be borne in mind that the authors of the articles were not examined as witnesses and were not cross examined. Furthermore, as Lord President Cooper observed in Davie, except in so far as a witness had adopted a passage from a published work, the court cannot rely upon the published work for the purpose of displacing or criticising the witness’ testimony. Moreover, where a witness has adopted a particular passage from a published work, the court is entitled to determine whether the reasoning in the particular passage appears to be reasonable and convincing or not.’
Lord Dunpark: ‘The pursuers’ doctors’ evidence, based, it seems to me, primarily if not solely upon these epidemiological studies, was that the greater the exposure to asbestos dust inhalation, the greater the risk of contracting lung cancer; but that does not answer the crucial question, namely, whether asbestos exposure per se is a likely cause of lung cancer in the absence of any lung damage which could be associated with asbestos inhalation. Nevertheless, I am of opinion that the relationship between asbestos exposure and lung cancer was sufficiently within the field of the pursuers’ doctors to enable them professionally to refer to studies on this subject; but the real question is whether they drew the correct inference from them.’
Lord McDonald: ‘It is, in my opinion, clear that an expert witness may in the course of his evidence, make reference to passages from a published work and adopt these as part of his evidence […]. There are, however, limits to this practice. One is that the expert witness must first have testified specifically to his own direct experience in the field in question. Having done that he is entitled to supplement his evidence by reference to recognised published works […]. It is essential, however, that the introduction of the literature be preceded by firm evidence from the expert as to his personal experience in the specialist field concerned. If this is not so there is a real danger that the literature becomes the primary evidence and is given a status it should not acquire unless spoken to by a witness directly responsible for its contents.’
Judges:
The Lord Justice-Clerk (Lord Ross), Lord Dunpark, Lord McDonald
Citations:
1988 SLT 141
Jurisdiction:
Scotland
Cited by:
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Lists of cited by and citing cases may be incomplete.
Evidence
Updated: 30 April 2022; Ref: scu.226709