Motion of bias against expert declared well-founded: ‘Easter and Christmas fell on the same day’.

Decision: Bias of an expert witness, Schweinfurt Regional Court, decision dated 19.09.2017.

Requests for bias only prove to be justified extremely rarely, since the court-appointed expert is generally granted a wide margin of discretion by case law with regard to the preparation of the expert opinion. This is probably also against the background that it is not expedient to reject the expert only because one party simply does not like the result of the expert opinion. In this respect, high requirements are placed on the existence of an apprehension of partiality.

In proceedings for compensation for pain and suffering following a traffic accident, the Regional Court of Schweinfurt obtained an expert opinion on the question of whether our client currently suffers from objectifiable somatic, functional and psychological complaints that are causally related to the accident. Among other things, the existence of a severe somatization disorder and post-traumatic stress disorder was claimed.

After receipt of the expert opinion, however, we had to ascertain that various facts justifying the concern of bias were present.

Thus, the expert opinion was entitled “Expert opinion according to § 106 SGG” – i.e. as an expert opinion on social law, which in itself certainly does not provide sufficient grounds for a well-founded suspicion of bias. However, the expert then only specifically mentioned medical reports and expert opinions in his expert opinion (except for one, see below) that speak against the existence of an accident-related illness. On the other hand, two other medical reports – those of a specialist in psychosomatic medicine and psychotherapy and of a specialist clinic for psychosomatics and psychotherapeutic medicine, which support the above diagnosis, were not mentioned with a single word. Furthermore, the one doctor’s report that the expert apparently considered worth mentioning was downgraded to the effect that this doctor’s letter would “apparently” have been written by a psychological psychotherapist and that a psychological psychotherapist is not a doctor. In this respect, this doctor’s letter appeared to be formally correct, because it was signed by a specialist, a senior physician and a chief physician, but it was striking and very unusual that the doctor’s letter had been written by a psychologist. Furthermore, the expert gave the impression of having considered the disputed allegation that our client’s bicycle had been damaged to be proven in such a way that he simply assumed that it had not been damaged.

We then filed a motion to recuse ourselves and the Schweinfurt Regional Court called on the expert and the defendant to submit their comments.

In his statement, the expert first stated that “the defendant side may comment in writing on the outstanding scientific-medical quality of my expert opinion.” He then spoke about the fact that an expert can only be rejected for important reasons that justify mistrust in his impartiality and that statistically experts are only very rarely successfully rejected, which is certainly true. Nevertheless, it is not necessary for an expert to first explain the legal prerequisites for the merits of a motion to dismiss over 3 pages. Nevertheless, this shows that the expert was already very aware of how he would have had to draft an expert opinion.

In terms of content, he then only commented substantially on how it could come to the heading as a social law expert opinion (error of the typist, of course, not by himself) – a further discussion of the deficiencies cited by us took place only in the respect that he repeatedly “stated” that we (as the plaintiff’s representative) were “mistaken”, everything else was negated without further justification and we were accused of having quoted him “out of context, incompletely and incorrectly”. Furthermore, from his expert point of view, the rejection request had no substance.

However, the Regional Court of Schweinfurt countered this in its ruling of September 19, 2017:

[box] However, there are reservations with regard to the content of the expert’s discussion of the final report of Clinic H dated […]. On p. 20, the expert states in support of his criticism of the aforementioned report that the plaintiff’s bicycle was not damaged. This fact is in dispute between the parties (see the statement of defense; p. 2, as well as the brief of the plaintiff’s representative dated 3/30/17, p. 2). It seems questionable that the expert considers this possibly significant fact to be proven at the expense of the plaintiff. He does not address this in detail in his statement.

The further comments of the expert with the author or the other signatories of the report are unobjective and inappropriate. In principle, there are no objections to a critical examination of pre-trial expert opinions and reports, even in terms of their wording. A clear choice of words can even be valuable for judicial decision-making in individual cases. In the present case, however, it is an unobjective personal attack on the authors or signatories and an exaggerated criticism. From the point of view of the buyer, this may give rise to the understandable fear that a factual discussion of the expert has not taken place.

There are also concerns that the reports of specialist R from […], as well as senior physician K and specialist A from […] were not, at least not recognizably, taken into account in the expert’s report, in contrast to the other reports on file. In his statement of […], the expert merely stated in general terms that he had comprehensively considered the entire file. The named physicians had personally examined and treated the plaintiff, and their reports are detailed. In the case of non-consideration, at least a justification for this would have been appropriate.

The opinion of the expert of […] also appears to be questionable in part. This applies to his request to the court to obtain a statement from the defendant’s side “on the outstanding scientific-medical quality of my expert opinion.” From the plaintiff’s point of view, the self-assessment of the expert could give the impression that the expert is not open to objective criticism. This impression could also result from the other content of the statement. This is because there is no discernible discussion of the content (except with regard to the above-mentioned heading) of the request for rejection, which is presented in a factual manner. It is not incumbent on the expert to explain when and under what conditions a request for rejection is successful. It is for the court to make this legal assessment. Moreover, the statement is largely exhausted in sweeping criticism of the rejection request, without any relevance to the content.

The overall assessment shows that the plaintiff’s doubts about the impartiality of the expert appear to be well-founded from an objective point of view.[/box]

In exceptional cases, with appropriate justification, it is possible for Easter and Christmas to fall on the same day.

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