Experts | Selecting the right biomedical expert

Biomedical issues in pharmaceutical disputes, whether involving personal injury or product liability claims, frequently present significant and sometimes daunting challenges for lawyers. Getting to grips with biomedical evidence can be frustrating but will often be instrumental in achieving a positive outcome for your client. You will almost certainly need to instruct an expert and possibly a selection of experts. The objective here is to describe key selection tools available and criteria which should be considered when choosing an expert since well-judged decision-making in this regard can tilt the scales in your clients favour and ensure litigation costs are kept to an absolute minimum. The Jackson reforms that came into force in April 2013 aim to limit litigation costs which may impact budgets for expert witnesses. In this new litigation cost management era, the need ?for efficiently and accurately selecting ?an appropriate expert has become even ?more important.

The chances of selecting an effective expert for your case can be maximised by drilling down at the start as far as possible to the specific biomedical questions that need answering. Don't be tempted to push ahead by grabbing an expert from what appears to be broadly the right field of medicine or science. Another major consideration is to assess the expert's broader profile and how that would lead to a productive working relationship. For example, you may have bagged a world authority on asthma but does the expert have time to review the evidence in the detail you require? Considering the following questions will help maximise the chances of selecting the most effective biomedical expert or experts for your case.

Pinpoint?In short, try to ascertain the sub-field of the broad area of medicine or life sciences the case deals with to identify the most effective expert for you.

To illustrate the point, let's assume your case is concerned with asthma. At first glance it would seem appropriate to identify a medical consultant dealing with asthma. But in most cases just identifying the broad biomedical field of the expert will not be enough and you will need to drill down to the specific questions that need to be answered. For example, is the safety of the asthma drug at issue the concern? In that case perhaps a drug safety surveillance expert rather than an asthma consultant would be more relevant. Or even more relevant to your needs would be an expert in both drug surveillance and asthma. Or the case may concern allegations that the asthma drug caused another disorder. So you may not need an asthma specialist at all, but an expert dealing with another disorder such as heart disease. Perhaps, the case is concerned with issues of asthma diagnosis. If so, can your asthma consultant address the nuances of changing criteria for asthma diagnosis over the years and possibly in different countries? In this case you may need an expert who has participated in drafting diagnosis guidelines or been highly involved with the respiratory societies producing these changes.

Needle in a haystack?Finding the right expert can be difficult. Getting a recommendation from, for example, a colleague or barrister for an expert is still an extremely useful way to shortlist potentially relevant individuals but think carefully about whether that expert meets all the necessary criteria in your particular case. Expert witness databases and directories are also available, although these can be blunt tools with which to identify the right expert for your specific needs. However, these directories may identify biomedical experts that have not published much but have valuable biomedical and legal experience.

An alternative approach to drawing up a list of experts that may be more specific to your needs is to use PubMed. PubMed is a free online database with over 22 million biomedical literature citations and is maintained by the United States National Library of Medicine at the National Institutes of Health. Most biomedical experts turn first to PubMed when trying to identifying literature on specific topics. By using key search terms on PubMed you can identify biomedical literature relevant to the case. The citations contain the author's name and institution. In this way you can build up a picture of experts who have published in the field of interest to you, whether they have published extensively or not and the time period over which they have published. PubMed allows you to view abstracts of articles for free and often by just reviewing these (although sometimes you will need to see the full articles), you can rapidly develop a picture of the biomedical expert's areas of expertise and if they are appropriate for your case. From the list of citations identified by your search, you can also build up a picture of which research or medical institutions have a strong reputation in the field you are interested in and may provide a group of relevant experts to select from.

An important point is that regardless of your search methods you should make sure the individual identified is indeed a credible expert in the field of medicine and life science you are concerned with. They should also have had recent experience or at the relevant time period. The expert's credentials can be checked fairly easily as most scientists who are regarded as experts will have a respectable web presence with their curriculum vitae, publications list, affiliations and presentations and lectures on their institution's website. You should also get an idea of their research interests and how actively they are still involved in the field. Before making your selection, it is a good idea to meet with the expert, particularly if it is envisaged that they will need to give evidence before a judge or arbitral tribunal.

Consider the degree and type of biomedical advice you require. Asking this question will avoid the frustration of selecting a high profile expert who simply doesn't have time to deal with the details or a low-key expert who may not add gravitas to your case. Considering the extent and type of advice required will help select an expert with whom you are more likely to develop a good working relationship. For example, do you need a quick statement from a witness to fact? Or do you require an extensive analysis of thousands (and sometimes millions) of documents and provision of expert opinion? If you need a testifying expert to offer a quick opinion in a case where the majority of the medico-scientific issues have already been tackled, then a high profile and articulate individual will help. Check the expert's profile within their field: does he or she serve on prestigious scientific associations, has the expert held the post of editor of an important journal, has he or she been spokesperson on government or international committees? Alternatively, perhaps you have an extensive database of biomedical documentation to review and you need an expert to work with your team to identify the key issues? In this case a high profile expert may not be the right choice as they have limited time. Another option would be to use a behind-the-scenes consultant who has time and expertise to evaluate and distil extensive scientific material and can funnel key issues and documents to the legal team as well as the high-profile testifying expert.

Check whether the expert's view may be regarded by other scientists as unconventional and outside the consensus of opinion in their field. You can compare the views the expert holds in that specific field by assessing their literature found on PubMed against other experts' literature in the same field. Although, the expert ?holding unconventional views may be precisely why you are choosing that particular expert, it is still important to be aware of how his or her views are regarded by other scientists especially if your expert is going to be testifying and their opinions will be challenged.

Joining the dots

Early on in your search, check for potential conflicts of interest the expert may have in advising you. Obviously, the expert cannot have a connection with the company against which you are acting. Wider connections also need to be carefully considered. For example, does the expert receive research funding from a rival company that might limit the scope of their advice or place a question mark over their impartiality? Did they work in a company or institution that would result in a potential conflict of interest? Checking whether affiliation to a biomedical society may preclude an expert from being instructed will avoid problems later. Some scientific and medical societies receive sponsorship from companies. Although you may identify scientists as being experts in their field based on affiliation to just such a prestigious society, ironically you may find that it is precisely membership of this society that will prevent the expert from assisting your client.

Check that your expert can provide jargon-free scientific explanations; otherwise you will end up having to decipher their work too! An initial face-to-face meeting to discuss the key issues with the expert can provide a useful indication of how well the expert will come across to an arbitral tribunal or judge. You should also check whether the expert's opinions are well considered and that they can rationalise their views under further scrutiny.

You may be instructing a biomedical expert but also establish the degree of legal experience they possess. For example, does the expert have testifying experience? Have they submitted reports to a court or arbitral tribunal before and are aware of the process? How comfortable is the expert doing this? Scientists are generally comfortable writing and submitting reports but they may be reluctant to testify in court or arbitration. This may be especially so if they have to provide an opinion that is contrary to a scientist who is perceived as a world authority in the field and then may become reluctant to testify or even submit a report further down the line.

To sum up, each case has unique considerations. Take care in assessing the requirements for the most appropriate biomedical expert. The above questions are a good starting point in drawing up a suitable list of experts.

Finally, budget and time constraints allowing, it is always best to meet personally with an expert and explore further if the working relationship will be an effective one. Getting the right expert can rapidly progress your case and identify new arguments. Getting the wrong expert can be an incredibly frustrating experience where you may end up either placing technical issues on the back-burner as the team has a reluctance to address them due to inadequate guidance or even having to find a new expert at short notice with potentially significant costs consequences for your client. In fact you could be missing the opportunity to identify strong scientific arguments to bolster your case and that could make all the difference between winning or losing your client's case.