Appreciation of Scientific/Expert Evidence: Professional 'Standard of Care' And 'Due Process'

Prof. Anil B. Suraj, Faculty, Law and Public Administration, IIM Bangalore

Abstract

Contesting liability in any dispute has become an intense struggle of evidence. If it involves a serious matter of attributing liability for professional negligence, the legal system necessarily requires effective assistance of the experts. This note attempts to highlight major contractual implications, and systemic challenges, in the enforcement of professional standards and appreciation of expert evidence in India.

The paramount object of any dispute resolution system is to guarantee a fair process of examining the facts and evidence, thereby being ultimately able to deliver substantive justice to the deserving. The judge is charged with the fundamental duty of undertaking a sincere quest for the most reliable evidence, within the elaborate framework of the procedural law. This is indeed a task of considerable effort, especially since determination of the true facts would require employing multiple methods and sources.

Evidence is generally classified as being 'oral' or 'documentary'. Rules of evidence, across the world, emphasize on the essential principles of - relevancy, admissibility and sufficiency. The courts are empowered to consider only such evidence - that is relevant to the facts of the matter; that is not disallowed or considered illegal by any law; and which is sufficiently weighty to form the basis of the judgement. The Indian Evidence Act, 1872, which is applicable to all civil suits, contract disputes and criminal cases, also defines as to when is a fact - 'proved', 'disproved' or 'not proved'.

It is in this particular context that we need to understand the process by which the courts appreciate 'scientific evidence', especially in matters pertaining to determination of negligence. This note is divided into two parts: first, an explanation of the contractual implications of professional negligence or lack of 'standard of care'; and second, the threshold nature of 'expert evidence' that is appreciated by the courts or any other legally or contractually authorized dispute resolution mechanism (like arbitration or conciliation). In explaining the applicable legal concepts and the working of the evidentiary procedures, this note relies extensively on instances and disputes in the domain of the construction industry.

 1. Professional Standard of Care

It is an inherent part of any legal system to impose liability for careless behaviour. And if the careless act is committed in the context of providing a 'professional service', then the liability is usually severe. Any violation of a 'reasonable duty to take care' is considered as negligence, and the entity committing the wrong would have to monetarily compensate for the loss, if any. In certain instances, the negligence may be of such a grave nature, that it may even amount to being a punishable crime.

1.1 Contractual implications

A claim of professional negligence results in serious legal implications, which could be classified as follows:

• Impact on work obligations;
• Incidence of ‘principal’ liability; and
• Extent of compensation.

1.1.1 Impact on work obligations

It is reasonable to presume, especially in the context of the construction industry, that all professional services shall be provided on the basis of a contract. It is also obvious that the contract shall contain extensive details of the service obligations expected of the professional individual/agency. The risk mitigating strategy of the professional individual/agency would have ensured that the work obligations are committed to a level that is reasonable and achievable within the framework of the other clauses in the contract (especially those pertaining to 'time', 'pricing' and 'indemnity'). However, it is to be noted that claims of negligence are not subject to, or restricted by, the clauses of the applicable contract. Even if the work contract clearly defines the set of activities expected of the professional individual/agency, and the same are complied with, but there is yet a variance with the 'standard' level of care expected by a professional in that context, the claim of negligence could be upheld. The contract would not, through its clauses, be able to deny or contain such claims of negligence. 

Example

Client (C) hires a consultant engineer (E) and the main clause in the work contract states - "E shall investigate and report on the working of all necessary safety features of the identified commercial property." C also provides E with the entire set of drawings and designs as prepared by the original structural engineer of the property being reviewed. E diligently follows the set of original drawings in identifying the safety features for an evaluation of their working conditions and submits a report accordingly. If supposing the original drawings had omitted an important safety feature, despite there being no present or immediate danger, E is duty bound to have identified the 'standard safety features/measures' that are ought to be present in such a commercial property and informed C about the original omission as well. Does this not cast an 'additional' burden on E? Yes, but it is justified as a professional’s reasonable duty to take care. Irrespective of the contractual expectation, E is subject to this level of care, and any shortcoming therein would amount to be termed as professional negligence.

1.1.2 Incidence of 'Principal' liability

Claims of professional negligence would lead to imposition of monetary liability on the entity that is responsible for such negligence. Therefore, the incidence of the liability is perhaps quite straightforward in a direct contract between two parties. However, it becomes quite complicated if the contractual arrangement is designed in a manner as to involve certain sub-contractors too. Any claim of professional negligence would be in reference to the overall project, and it need not specify any particular part/process unless it is easily identifiable as such. In this context, the tortious liability principles mandate that the main professional individual/agency that has contracted to provide the services shall be the 'principal' entity in the project. Any claim of negligence, and the resulting liability, shall primarily be the responsibility of the 'principal' entity. This form of 'vicarious' or 'secondary' liability is imposed by the law to protect the interests of the ultimate beneficiaries. The principal contracting entity shall have to bear the responsibility for any negligent acts of the contracted sub-agents

Example

Client (C) hires a structural engineer (E) for the design and construction of a particular housing project. The contract permits E to employ sub-contractors for the different parts of the project. Pursuant to the same, E hires SE-1 and SE-2 as the sub-contractors for the construction activities. If supposing the part constructed by SE-2 is found to be faulty and causing a hazard, E shall also have to bear the liability on the basis of being the 'principal' entity responsible. Does it mean that SE-2 is let off? No, SE-2 shall be directly liable to the extent of the negligence, and in addition, SE-2 shall also be accountable to E on the basis of contract between them. The legal recourse to E is on the basis of its contract with SE-2 and its 'indemnity' clause, which shall have to include liabilities arising out of negligence claims. Could E avoid this liability by having a contractual clause with SE-2 beforehand? No, this principle of 'vicarious' liability would apply as a legal mandate and it cannot be disclaimed by a clause in a contract.

1.1.3 Extent of Compensation

Every contract shall contain an obligation to compensate, if and when, a party suffers due to a violation of any of the clauses. In most contracts, there would even be a clause that stipulates the extent of such compensatory payment. The contract law treats this indication as the maximum extent of compensation that could be claimed by the aggrieved party. As stated in 1.1.2, successful claims of negligence result in an imposition of compensatory liability as well. However, the contractual limit on compensation does not extend to the compensatory liability arising out of a claim of negligence. Tortious form of liability is not subject to the restrictions under the contract, and therefore, is also not bound by the compensatory limits as agreed in the contract. The process of dispute resolution may award a much higher amount as compensation, than what had been anticipated or indicated in the contract.

Example

Client (C) hires a structural engineer (E) for the design and construction of a particular property. The contract stipulates liquidated damages clause to the extent of $1million. If supposing the construction is found to be faulty and damaged owing to the negligence of E, then C could sue E with a claim of $2million and provide justifiable evidence to deserve such compensation. This is an aspect of compensation that is also termed as ‘unlimited liability’ owing to its ability to go beyond what has been contractually agreed as a compensatory limit.

 1.2 Major defences

The liability arising out of professional negligence, as explained in the previous section, go beyond the contours of a contract. The effect of the law is such that the parties, especially the professional individual/agency, cannot avoid this liability on the basis of designing/structuring the contractual arrangements. However, across most legal systems, the following defences could be raised against the full imposition of such liability:

• Expected action (or omission) is outside the scope of 'reasonable duty'.
• The claim is based on the consequences of a ‘supervening’ negligent action of a third party.
• The claimant too has 'contributed' to the negligence and should therefore share some comparative (attributable/apportionable) part of the final liability, thereby reducing its eventual burden.
• The claimant has intentionally misrepresented facts, or has behaved fraudulently.

The legal and contractual implications of professional negligence claims (and the defences) are deeply factual and contextual. Therefore, effective resolution of such disputes requires robust model of expert witness based evidence.

2. Expert Evidence: 'Due process' requirements

A major challenge in matters of professional negligence is in determining the 'reasonable' level of care. It is precisely at this stage that the judge requires expert assistance - firstly, to understand the applicable standard level of care; secondly, to assess the degree of variance in the matter; and thirdly, to determine whether such variance amounts to negligence.

Admissibility and relevancy standards of the courts rule the prudential value of evidence submitted by the litigants. If this be so, then how are the judges enabled to decide on and appreciate evidence of scientific nature? Should the scientific and forensics methods be "fool-proof" and "generally acceptable within the relevant scientific community"? There could be different methods of evaluating the veracity of a scientific process - such as, empirical testing, peer review, formulation and adherence to standards, publications - however, concerns may still linger. Even questions as to whether the method can, or has been tested, or as to whether it has any known or potential error rate shall also have to be determined, to eschew any chance of wrongful dispensation of justice.

Way back in 1923, the United States District Court for the District of Columbia announced a test for determining the admissibility of scientific evidence in a court. The Frye test, as it has come to be known, employed the term "generally accepted" in the relevant scientific community as the criterion for admitting any form of scientific evidence. Subsequently, this thumb rule was replaced by another guideline as provided by the US Supreme Court, which is popularly referred to as the Daubert standard for scientific evidence. Soon thereafter, the US Supreme Court extended the application of this standard to all forms of expert evidence. Given the rapid advances being made in science and technology, it was observed that new discoveries and theories might be perfectly sound but still be new enough to have gained the level of "general acceptance". The US Supreme Court has established a "gate-keeping" role for the court and has also enunciated various factors to be considered before the judge determines the admissibility of new scientific evidence. The Indian Supreme Court has, in great detail, referred to and conceptually adopted similar principles of considering the scientific and expert evidence. Reiterating the need to emphasize on the processes and the methodology adopted by the experts, and not to focus only on the conclusions or the results, the following inclusive factors were also restated as being important for a judge having to decide to rely on the expert’s evidence:

• Whether the theory or technique can, or has been, tested;
• The extent of peer review and publications - we should now perhaps also include the journal impact factor and the citation index reading;
• The known or potential error rate; and
• Extent of acceptance among the wider scientific community.

2.1 Concerns and challenges

Broadly, forensic evidence is growing rapidly to include - the medico-legal, DNA based profiling and related evidence, engineering and technical evidence, and cyber evidence. Given the complexity of issues and the diversity of matters before the courts, it is essential that the judicial processes are increasingly oriented to employ the forensics resources in a timely manner. Over a period of time, courts across the globe (the US, UK, Australia, New Zealand) have evolved definite principles with regard to appreciation of expert testimony. For instance, it is quite well founded that an expert testimony cannot be excluded simply because 'the expert uses one test rather than another, when both tests are accepted in the field and both reach reliable results.' It has also been affirmed that the expert witnesses do not have to demonstrate to the judge 'by a preponderance of the evidence' that their assessments are correct; they only have to demonstrate that their opinions are reliable.

Appreciating expert testimony, especially in places where the jury system still exists, requires the due consideration of a host of factors. For instance, an expert necessarily would enjoy some popularity and such public confidence that an 'expert witness' enjoys makes the statement stronger in perception than for its intrinsic objectivity. Qualitative appreciation could suffer a setback in the light of popular (mis)understanding. Other major concerns in this regard could include - the bias or partiality of expert witnesses; the selection process adopted to identify the expert required for an objective assessment of the issue; the inability of the court (not merely the judge, but also the arbitrators, advocates and the parties concerned) to expose the technical/qualitative deficiency of the presentation by the expert; and the limited ability of the judge to understand and also evaluate complex, and most often, conflicting expert evidence.

The challenges assume a serious dimension owing to, on the one hand, the legal and the judicial system being challenged to resourcefully utilize the assistance of expert evidence, and on the other, many grievances being aired on the working pattern of scientific experts vis-a-vis their contribution to legal proceedings. Perhaps the time is ripe for the professional bodies across all sectors to incorporate definite ethical and duty codes for those who accept to become expert witnesses.

2.2 Expected role of the Judges

With respect to the expert scientific or technical testimony, the judge must be able to establish its admissibility consistent with the following steps by deciding that:

•  the witness is qualified as an expert by knowledge, skill, experience, training or education;
• the evidence is relevant and reliable;
• the expert’s opinion is based upon information reasonably relied upon by experts in the particular field;
• the expert testimony will assist the judge to understand the evidence or to determine a fact in issue; and
• the expert testimony will not create unfair prejudice or confuse or mislead the judge. From a glance at the challenges and concerns it is clear that the judges need to adopt certain strict rules in the process of reviewing scientific or expert evidence. The US Courts, at various levels, have provided ample guidance on the leading criteria to adopt in this regard and it is of relevance in the Indian context too. The following guiding principles for the judges are drawn from a selection of the same:
• It is the duty of the court to determine as to whether the expert has adequately accounted for obvious alternative explanations. Certain instances have led to the expert testimony being set aside because the expert failed to consider other obvious causes for the condition under review.
• The judge must also decide as to whether the expert has "unjustifiably extrapolated from an accepted premise to an unfounded conclusion." A judge may decide so if there is simply "too great an analytical gap between the data and the opinion proffered".
• The judge should be able to discern as to whether the experts are proposing to testify about matters emanating 'naturally and directly' out of research they have conducted independent of the dispute, or whether they have developed their opinions expressly for purposes of giving the testimony.
• The judge must ensure that the expert is being as careful as she would be in her regular professional work. In fact, the judge should be assured that the expert "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field".
• Perhaps it would appear that rejection of expert testimony is the exception rather than the rule. Just as how "vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence" in a similar manner the judge too has the discretion, "both to avoid unnecessary 'reliability' proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted, and also to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert’s reliability arises."
• The judge must be flexible in deciding in a particular case how to go about determining whether particular expert testimony is reliable or not. Though no single factor is necessarily exhaustive of the reliability of a particular expert’s testimony, the judge should ensure that not only must each stage of the expert’s testimony be reliable, but every stage must be evaluated practically and flexibly without any rigid beliefs.

"Those people who think they know everything are a great annoyance to those of us who do!" -Isaac Asimov

ABOUT THE AUTHOR

Bearing a keen academic and policy interest in the positive role of law towards enriching the process of globalization, Suraj has undertaken doctoral study at the National Law School Bangalore, in the discipline of Law and specifically on the defensive mechanisms under the World Trade Organization. Prior to joining IIM Bangalore in March 2007, Suraj was a Research Fellow at the National Judicial Academy, India, wherein he coordinated training courses for senior District Judges and High Court Justices on various topics, including - Economic analysis of law and Adjudication of economic laws.

Suraj was also involved in coordinating the first ever initiative of a training programme on Court Management and Judicial Administration in India. At IIM Bangalore, Suraj delivers core courses on - Public Administration and Law, Legal and Institutional Dynamics, Business Laws and Law: Indian and International Systems. Suraj has been a member of the first ever Working Group of the Planning Commission on Law and Justice and has also jointly coordinated the Phase-IV Mid-Career Training Programme between 2008 and 2010 for the Indian Administrative Service Officers.

Since graduating from the National Law School Bangalore in 2000, the research themes pursued by Suraj includes - Public Contract Law; Judicial Impact Assessment Models; Urban Governance and the Law; Anti-dumping policy in India and the EU; and Legal impact of WTO on small-scale industries.

Suraj has also co-authored a paper titled "Redesign of Government Business Relations in India and the Role of Legal Process" presented at the Center on Democracy, Development and the Rule of Law, Stanford University.

He can be contacted at- absuraj@iimb.ernet.in