Part 35 Questions to Experts

Part 35 Questions to Experts Arun Katyar & Patrick Kerr CPD Ref: AVV/CHRW 12 King s Bench Walk, Temple, London EC4Y 7EL, Tel: 020 7583 0811, Fax: 020 7583 7228, Video Conferencing: 020 7583 4190 E-mail: chambers@12kbw.co.uk, Website: www.12kbw.co.uk, DX 1037 Chancery Lane 1

Part 35 Questions to Experts 1. Part 35 questions are an important weapon in the litigation armoury in all cases where there is expert evidence on a matter at issue in the case, whether it is liability, quantum, causation. 2. This paper addresses the deployment of Part 35 questions specifically in relation to medical evidence, but much of what is said is relevant to any case where expert evidence is part of the evidence in the case. Relevant Provisions in the CPR 3. The jurisdiction to ask written questions of an expert witness arises from Rule 35.6 CPR which provides as follows:- 35.6 (1) A party may put written questions about an expert's report (which must be proportionate) to (a) an expert instructed by another party; or (b) a single joint expert appointed under rule 35.7. (2) Written questions under paragraph (1) (a) may be put once only; (b) must be put within 28 days of service of the expert s report; and (c) must be for the purpose only of clarification of the report, unless in any case (i) the court gives permission; or (ii) the other party agrees. (3) An expert s answers to questions put in accordance with paragraph (1) shall be treated as part of the expert s report. (4) Where (a) a party has put a written question to an expert instructed by another party; and (b) the expert does not answer that question, 2

the court may make one or both of the following orders in relation to the party who instructed the expert (i) that the party may not rely on the evidence of that expert; or (ii) that the party may not recover the fees and expenses of that expert from any other party. 4. The key points are:- (i) (ii) (iii) (iv) (v) (vi) The questions must be proportionate; The questions must be for the purpose only of clarification of the report ; The questions may be put within 28 days of service of the report without permission of the Court, or at any other time with permission from the Court or the other party; Questions should be put once only; The answers to the questions shall be treated as part of the expert s report and therefore have the same status as the rest of the expert s evidence; There is provision for sanctions where an expert does not answer Part 35 Questions. 5. In addition, the following are set out in the notes and Practice Direction:- (i) (ii) The party asking questions of the expert must send copies of those questions to the other party at the same time (CPR 35 PD 6.1); Clarification is not explained but the questions should not be used to require an expert to carry out new investigations or tests; to expand significantly the report; or to conduct cross-examination by post. 6. The Protocol for the Instruction of Experts adds further detail:- (i) Experts have a duty to provide answers to questions properly put (Protocol, para 16.1); (ii) Experts should copy their answers to those instructing them (Protocol, para 16.1); (iii) Where experts believe that questions put are not properly directed to the clarification of the report, or are disproportionate, or have been asked out of time, they should discuss the questions with those instructing them and, if appropriate, those asking the questions. (Protocol, para 16.3) The questions must be proportionate 3

7. This requirement was added in October 2009. Arguably this amendment was unnecessary given that proportionality is enshrined in the overriding objective (CPR 1.1) and the Court has a duty to restrict expert evidence to that reasonably required to resolve proceedings (CPR 35.1); so one would have expected the Courts to strike out questions that were regarded as disproportionate, in any event. 8. The meaning of proportionate is not expanded upon in Rule 35.6 or in case law, but one would expect the Courts to have regard to the same matters as those listed in CPR 1.1 (2) (c) namely permitting questions that are proportionate to the amount of money involved, to the importance of the case and to the complexity of the issues. Put simply, the more valuable or complex the case, the more sympathetic the Court is likely to be to voluminous Part 35 Questions. 9. Occasionally one sees Part 35 questions where the questioner has clearly gone over the top and the questions are disproportionate. In such circumstances the discontented party normally instructs the expert not to answer (any of) the questions and the questioning party can be expected to make an application to the Court. The Court would then review the draft questions and determine whether which if any are proportionate and should be answered by the expert. However, CPR 35.6.1 suggests a slightly different approach: If an expert receives a set of questions which he/she considers go beyond the spirit of the rule, the right approach, it is suggested, is for the expert to answer the clearly relevant questions, and only to decline to answer the remainder if: (a) To do so would clearly be prejudicial to t the instructing party s position (my emphasis); (b) The time and cost of replying to the questions is disproportionate. One approach to dealing with excessive or onerous questions is for the expert to exercise his or her right to ask the court for directions (see CPR 35.14 and the notes thereto) 1. 10. The reality is, however, that this approach is rarely taken. The questions must be for the purpose only of clarification of the report 1 The cost of these applications are not dealt with under CPR 35.14. It is submitted here that the costs will be at the Court s discretion and a cost order against the questioning party may be made in any event if the questions are deemed inappropriate or onerous. If not, it would seem that costs in the case would be the most likely direction. 4

11. There is no clear guidance in the case law as to what this means. 12. Does it allow questions concerning any issue in the case upon which expert input is of potential relevance (widest interpretation), or only matters that have been addressed in the existing report(s) but in respect of which the expert s opinion is unclear (the narrowest interpretation)? In reality, any relevant question is unlikely to be objected to by the Court. 13. Similarly, can the questions be drafted in the form of closed, leading questions, as one might expect the expert to be asked at Trial? Again, there is no guidance in the case law. Practically speaking, it seems leading questions are permissible, but at the risk that the expert s answer may be devalued by their use 2. 14. In Mutch v. Allen 3, a defendant s questions regarding the effect of not wearing a seatbelt were disallowed at first instance on the basis that such questions were not mere clarification but outside the scope of the expert s instructions. The defendant s appeal was allowed, although for different reasons:- The most fundamental difficulty with the Judge s approach, however, is that it overlooks the essential reform sought to be achieved by CPR Part 35. This new regime is designed to ensure that experts no longer serve the exclusive interest of those who retain them, but rather contribute to a just disposal of disputes by making their expertise available to all. The overriding objective requires that the court be provided with all relevant material in the most cost effective and expeditious way. The policy is exemplified by provisions such as rule 35.11 which allows one party to use an expert s report disclosed by the other party even if that other party has decided not to rely on it himself (per Simon Brown LJ) 15. The Court went on to say that the appropriate course of action would be either for the expert to be called to give evidence and be cross-examined by both parties at trial; or for the parties to apply to the court for permission to obtain further expert evidence on the point. The questions may be put within 28 days of service of the report without permission of the Court, or at any other time with permission from the Court or the other party 16. Often the questioning party will not wish to ask questions within 28 days of service of the report, for a variety of reasons - he has not seen a detailed Schedule of Loss; relevant disclosure (such as medical records, occupational health records, DWP records etc.); witness statements; or even the expert s finalised views on diagnosis/causation/prognosis. 2 The old case management directions in clinical negligence matters used to promote the use of questions which required only yes or no answers but these have been side-lined as necessarily restrictive and unwieldy in most Courts, notably in the Masters Corridor. 3 [2001] All E.R. D 121, CA.. 5

17. I have never seen an objection to later service pursued where good reason has existed for the delay. Questions should be put once only 18. Again, Part 35 Questions are often asked on multiple occasions during the course of a case, often for very good reason, for example, prompted by an updated Schedule, further disclosure, further witness evidence, further medical evidence, or surveillance evidence. 19. Rarely, if ever, is the point taken if there is a legitimate reason for asking a second, third or fourth set of questions. The answers to the questions shall be treated as part of the expert s report and therefore have the same status as the rest of the expert s evidence 20. As such, there is no need for an expert to revise his substantive report as his answers to Part 35 questions will be treated as part of his evidence. Sanctions where an expert does not answer Part 35 Questions 21. The Court may refuse a party permission to rely upon the expert s evidence, or order that the party may not recover the expert s fees from the other party (Rule 35.6(4)). The Court may also impose sanctions against an expert (Protocol, para 16.1). However bear in mind that an expert is entitled to seek the guidance of the Court as to whether s/he should be answering the questions (see above and below), albeit, anecdotally, this is a very rare occurrence. 22. It is increasingly commonplace for District Judges to require experts to be served with dates for compliance with an order for outstanding questions to be answered by a particular date. Experts have a duty to provide answers to questions properly put / Where experts believe that questions put are not properly directed to the clarification of the report, or are disproportionate, or have been asked out of time, they should discuss the questions with those instructing them and, if appropriate, those asking the questions 6

23. The Protocol states that if the expert objects to the questions, attempts should be made to resolve such problems, but even if the party instructing does not apply to the Court in respect of the offending questions, experts may file written requests with the court for directions to assist in carrying out their functions as experts (Protocol, opera 16.4 and CPR 35.14). Experts should copy their answers to those instructing them 24. If questions are asked of a Claimant s expert by the Defendant, the expert copies in both parties to his replies. However, if the Claimant asks Part 35 questions of his own expert, the expert is only required to send his replies to the Claimant. The duty is then on the Claimant to disclose those replies to the Defendant. Asking questions of your own expert 25. It is to be noted that Part 35.6 only makes provisions for asking questions of another party s expert, or a SJE (rule 35.6(1)), not of your own expert. However, this tends to be obeyed more in the breach than the observance, and questions are frequently asked of one s own expert in order to clarify matters that need clarifying or deal with omissions in the substantive reports and objection is rarely taken. 26. Arguably a short addendum report would do but it seems to be thought that sliding in additional opinion by way of questions avoids the need for additional permissions. Whilst not technically correct under the rules, tactically it is a manoeuvre often undertaken. Why ask Part 35 Questions? 27. The most common situation is that a Defendant is asking questions of the Claimant s expert when the Claimant s expert is the only expert in the case at that time in that field in order to:- (i) (ii) Highlight deficiencies in the expert s report, whether that be a failure to comply with the requirements of Part 35 and/or the Protocol, or a failure to identify and address material entries in the medical records; Clarify the expert s views on various key issues in the case, for example causation, prognosis, or the recoverability of a certain head of loss (appropriate treatment, loss of earnings, handicap on the labour market etc.); 7

(iii) (iv) Lay the foundations for a Daniels v Walker 4 application for one s own expert evidence in the same field; Encourage the expert to change his evidence so that it is more favourable to the Defendant (questioning party). 28. Alternatively a party may ask questions of his own expert (which are not strictly speaking Part 35.6 questions) in order to (a) clarify matters, (b) to encourage him to support various heads of loss, or (c) when the expert has changed his opinion at the joint statement stage and the discontented instructing party wishes to know why the expert has performed the volte-face prior to making an application for a replacement expert pursuant to Stallwood v. David 5 :- If a party wishes the Court to take the exceptional step of allowing additional expert evidence after his or her expert has changed his opinion the expert will usually have to make appropriate enquiries of the expert in order to provide the material for his application to the Court (per Teare J, para 30) 29. Where each party has its own expert, it is rarer to ask Part 35 Questions, rather the key issues are usually identified and reduced to an agenda for the experts to consider at the Joint Discussion. How to ask Part 35 Questions 30. Whatever the situation, the most effective questions are usually clearly-comprehensible, tightlydrafted and demonstrably fair: a. Questions that prompt a response from the expert along the lines of I do not understand this question do not advance the questioner s case. b. An aggressive or hectoring approach can be expected to antagonise the expert and, human nature being what it is, prompt him to become more entrenched in his views. Of course, there will be occasions when an entrenchment of views will not be unwelcome, particularly if one has a shadow expert up one s sleeve and one wishes to highlight the range of views as a means of getting permission for one s own expert. 4 [2000] 1 WLR 1382. In Cosgrove v. Pattison [2001] CPLR 177 Neuberger J considered this case and concluded: 1) In determining whether to allow the defendants to call a further expert, the factors to be considered were: (i) the nature of the issue or issues; (ii) the number of issues between the parties; (iii) the reason for requiring the new expert; (iv) the amount at stake or the nature of the issues at stake and their importance; (v) the effect of permitting one party to call further expert evidence on the conduct of the trial; (vi) any delay caused in the proceedings; (vii) any other special features; (viii) the overall justice to the parties in the context of the litigation. (2) Having considered the relevant factors in (1), the court, in relation to the justice between the parties, considered that the appellants, if permission was refused and they lost, would have an understandable and objective sense of grievance. Conversely, if permission was granted, the respondents, who would have had the opportunity to call their own new expert, would not have such an understandable and objective sense of grievance. 5 [2007] 1 All ER 206 8

31. Would you be better placed leaving part 35 questions well alone and look to a decent agenda for experts discussions instead? What to ask? 32. Note the requirements of the CPR. Has the expert has complied with the requirements of Part 35 and the Practice Direction. In particular:- (i) Does the expert give details of his qualification (Pt 35 PD para 3.2(1)); (ii) Has the expert given details of any literature or other material which has been relied on in making the report (Pt 35 PD para 3.2(2)); (iii) Has the expert stated the substance of all material instructions and the factual assumptions on which his report is based? (CPR 35.10(3) and Pt 35 PD para 3.2(3)); (iv) Has the expert made clear the facts that are within his own knowledge? (Pt 35 PD para 3.2(4)); (v) Where a matter falls outside the expert s field of expertise, does he say so? (Pt 35 PD para 2.4); (vi) Where the expert is not able to reach a definite opinion, for example, because they have insufficient information, does the expert say so? (Pt 35 PD para 2.4); (vii) Does the report make clear who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert s supervision (Pt 35 PD para 3.2(5)); (viii) Where there is a range of opinion on the matters covered by the report, has the expert made clear the range of opinion and his reasons for holding the opinion within that range? (Pt 35 PD para 3.2(6)); this is particularly important if you wish to run an acceleration case (and how the questions are phrased is therefore equally important if you want to avoid an acceleration case being proffered) (ix) Does the report contain a summary of the conclusions reached? (Pt 35 PD para 3.2(7)); (x) If the expert cannot give an opinion without qualification, the qualification should be stated (Pt 35 PD para 3.2(7)); (xi) Is the report signed with an expert s statement and statement of truth with the stipulated wording (Rule 35.10(2), Pt 35 PD para 3.2(9) and 3.3); (xii) Having read the report as a whole, can it be said that the report sets out objective, unbiased opinions on matters within their expertise, without the expert having become an advocate for the party instructing him? (Pt 35 PD para 2.2). 9

33. Explore the expert s clinical background and expertise in his / her field. In particular:- (i) How expert is he in the field in question? For example, in a case concerning an ankle injury, how much of the expert s clinical practice concerns ankle injuries? How many such cases has he seen in a clinical context in (say) the last 12 months? If the case involves injury to a child, what relevant (or any) paediatric experience does the expert possess? It is worth making inquiries before asking such questions, the wrong answer could be quite embarrassing. On the other hand these are valuable questions where the expert is of an age where in reality he is a generalist in a specialist s world, or has been primarily an administrator for many years as opposed to a treating clinician. Just as long as your own expert does not fall into the same category as the target of your questions. See also (ii) (ii) Is the medical expert still in clinical practice? NHS or private, both or neither? And if out of NHS practice, or not treating patients, for how long has that situation pertained, what steps has the expert taken to keep abreast of current developments? It is generally best to search on the internet/with one s own expert to at least broadly know the answers to these questions before asking them. (iii) What is the expert s split of Claimant/Defendant/SJE instructions in (say) the last 12 months? 34. Asking technical questions; focussing on some common orthopaedic issues. 35. Such questions will by far be the most difficult and demanding to frame. They will require at the very least some basic understanding of the medical issues involved and a thorough reading of the medical, occupational health and other relevant records, as well as any scientific literature which the expert has referred to in the main report. 36. Some common medical acronyms to assist with an understanding of the records; # Fracture + Present Absent ++ More significantly present +++ Very significantly present 1/7 One day 10

1/52 One week 1/12 One month Hx Px Tx PMH PC HPC DH FH SH R/v NAD O/E u History Prescription Treatment Past Medical History Presenting complaint History of the presenting complaint Drug History Family History Social History Review No Abnormality detected On examination Psychiatry 37. A diagram to assist with basic understanding of the anatomy of the spine:- 11

38. A diagram highlighting some basic degenerative spinal conditions: 39. A useful online resource for sourcing peer-reviewed medical literature; www.pubmed.com. 40. The spine is a complicated structure. In the context of personal injury litigation, causation of ongoing symptoms is one of the most frequently recurring issues. In particular is ongoing pain being generated by constitutional problems or does it remain of post traumatic origin? 41. It is unusual to persuade an opposing expert to perform a complete volte-face through the medium Part 35 questions. However, at the very least you should aim to get the expert to acknowledge there are likely to be a range of opinions and see if he is prepared to widen his views in light of your carefully crafted questions. 42. The following is a non-exhaustive list of areas to explore:- (i) (ii) (iii) Is there a sufficiently close temporal relationship between the accident trauma and onset of symptoms? Flag up the relevant parts of the Claimant s previous medical history, and highlight inaccuracies from the Claimant s self-report of symptoms. Focus on aspects of the Claimant s clinical examination. How thorough was it (duration of examination)? Any inconsistencies (see below / Waddell signs)? 12

(iv) (v) (vi) Look at the development and pattern of symptoms over time is the pattern atypical (see below)? Highlight any relevant findings on the radiology. Explore any acceleration / aggravation findings. Do not accept these at face value. 43. Many mainstream orthopaedic experts will readily accept that symptoms arising from a trauma induced whiplash injury:- (i) Originate from microscopic shearing of soft tissues which surround and support the spinal column; (ii) The typical pattern tends to be acute phase in the days post-accident during which time symptoms may well worsen /deteriorate; (iii) Thereafter there is usually improvement or recovery, or symptoms plateau; (iv) The literature suggests that most patients who suffer a whiplash injury recover within 2 years although a small minority are troubled by such symptoms in the longer term (Gargan & Bannister); 44. There are plenty of alternative theories. However, if the Claimant s symptoms depart from the above, you may wish to consider framing questions along the lines of Example 1 below. 45. The other area to explore in whiplash injury cases are controversial findings made in relation to acceleration periods. These are widely acknowledged to be matters of clinical impression as opposed to hard science; see Example 2 as to one possible approach. 46. Questions regarding concerns over the Claimant s presentation - refer to the following paper; Nonorganic Physical Signs in Low-Back Pain (Waddell et al, Spine 5:117-125, 1980). 47. What then are the Waddell signs? a. Superficial tenderness skin discomfort on light palpation. b. Non-anatomic tenderness tenderness crossing multiple anatomic boundaries. c. Axial loading eliciting pain when pressing down on the top of the patient s head. d. Pain on simulated rotation - rotating the shoulders and pelvis together should not be painful as it does not stretch the structures of the back. 13

e. Distracted straight leg raise - if a patient complains of pain on straight leg raise, but if the examiner extends the knee with the patient seated (e.g. when checking the Babinski reflex). f. Regional sensory change - Stocking sensory loss, or sensory loss in an entire extremity or side of the body. g. Regional weakness - Weakness that can be overpowered smoothly. Organic weakness will be jerky, with intermittent resistance. h. Overreaction - Exaggerated painful response to a stimulus that is not reproduced when the same stimulus is given later. 48. Misunderstanding of the Waddell paper; this paper was never meant to provide a detection test for malingering. The Waddell formulation was devised so as to enable physicians to elicit nonorganic physical signs in patients with chronic low back pain, indicative of somatisation. 49. Just because there is no organic explanation for a Claimant s symptoms, does not automatically mean they are malingering. If non-organic signs are indicative of somatisation at a sub-conscious level, this may merit reports from other fields of expertise (such as psychiatry) and a Court will usually compensate (provided any exaggeration is not occurring at a conscious level). 50. It will be appreciated that orthopaedic and psychiatric injuries cannot be looked at in isolation; many experts acknowledge an interrelationship, referring to the vicious circle of pain and depression. 51. Refer to Example 3 as to questioning involving inconsistent presentation / Waddell sign issues. 52. Other miscellaneous areas you may wish to cover:- (i) (ii) (iii) (iv) (v) (vi) Failure to mitigate; what course the Claimant s symptoms would have taken if he had undergone recommended treatment; Whether the Claimant satisfies the Equality Act test of disabled for the purpose of any Ogden 7 claim; Occupational capacity - when C was/will be able to all/some work, and if so then what; The impact of surveillance on the expert s view s regarding the level of the Claimant s disability/if and when he was physically capable to return to work; The Claimant s reasonable care needs (if any); Where the questioning party has own witness evidence that contradicts the Claimant on a material matter (e.g. accident circumstances), whether and to what extent the expert s views would change if that factual evidence were preferred by the Court; 14

(vii) (viii) Future surgery: the percentage chance of the Claimant needing such surgery/making a certain level of recovery; Percentage risks of the Claimant developing some further disease / condition (provisional damages). 53. Questions may not always be indicated. If as a Claimant the evidence is sufficiently clear to support the claims you advance then leave well alone. The same might also go for a Defendant; it can sometimes be to your advantage to leave matters vague/unclarified (see paragraph 31 above). 54. However, always consider whether a case is appropriate for Part 35 questions upon disclosure of the medical or other expert evidence. Arun Katyar & Patrick Kerr 6 14 May 2012 6 With notable credit to Henry F. Charles, and David White, both of 12 Kings Bench Walk. 15

Example 1; The pattern and progress of symptoms from a Defendant s perspective; We would ask you to consider, based upon your clinical experience as an orthopaedic surgeon who has doubtlessly reviewed many patients with back troubles during the course of your career, to advise upon the usual progression of back symptoms following a specific traumatic event:- Is the usual / typical progression for a patient who has suffered trauma to their lower back, to experience pain immediately or very shortly after the index event? Is such pain usually at its worst for the first few days or weeks post-accident? Do symptoms sometimes deteriorate during this initial period (of days or weeks) post trauma? Further, following this early period of progression, would you accept most patients symptoms will reach a plateau before eventually achieving a full recovery, although a minority may be troubled by back symptoms in the longer term? Do you agree it is unusual for back symptoms caused by a trauma induced injury to deteriorate following the first few days or weeks, and that any such deterioration is more likely on the balance of probabilities to be due to other factors, such as an underlying back condition and / or further traumatic incidents? Please now consider the chronology of symptoms post-accident in this particular case, as described to you by the Claimant, and as set out in your first medical report. It seems she took 2 days off work immediately post-accident before returning. Her symptoms (on the Claimant s account) are described to worsen during 2007. They then presumably further deteriorated in 2008, as she was signed off work in November 2008 (2½ years post-accident), and did not return again until 4 months later at the end of March 2009. In light of this chronology, please comment on the following facts and matters:- Given the above chronology, do you agree it is difficult on a balance of probabilities basis, to causally associate the Claimant s described deterioration in 2007 and 2008 with the index trauma / event? 16

On the balance of probabilities would you agree that such deterioration is more likely connected to an underlying non-accident related degenerative condition of the spine? Once again, on the balance of probabilities, would you accept that her absence from work from November 2008, cannot be causally connected with the index accident? Would the Claimant s weight put strain on her back, and likely cause her to suffer lower back symptoms in any event? From an orthopaedic perspective, and not least given the Claimant s past medical history of back pain and/or the MRI radiological findings, please can you advise what period of the Claimant s past symptoms can be safely and exclusively linked to the index accident? 17

Example 2; Acceleration Issues from a Claimant s perspective; We would like to explore with you the 12 to 18 month period you have advised upon at paragraph 6.3 of your report:- Does the material period you refer to represent an acceleration or aggravation period? Do you accept that when advising upon periods of acceleration or aggravation of orthopaedic injuries against a background pre-existing degenerative change, there is no peer reviewed published material to which you can turn for assistance? Do you further agree such findings must therefore be made, based upon your clinical examination of the patient, review of radiological evidence, and the medical history; thereafter utilising your experience as an orthopaedic expert, you arrive at a best educated clinical guess? Given the Claimant s relatively young age (late twenties) at the date of the index incident, the sedentary nature of his employment and the fact he did not have a lengthy or substantial history of pre-incident back symptoms, are you prepared to revisit your conclusion on the period of acceleration / aggravation, and if possible express a range of years by which lower back symptoms have been brought forward? 18

Example 3; Inconsistency / Waddell signs from a Defendant s perspective; You examined the Claimant on the 13th October 2009, hence just over 3 years following the index accident. You helpfully set out the details of your examination in the body of your report (please refer to pages 4 to 5 thereof). You recorded bilateral Straight Leg Raise as being 40 degrees, and go on to identify a potential discrepancy in that the Claimant was able to sit with her legs at 90 degrees on the couch during your clinical examination (See page 5 of your report). Please can you clarify:- What the purpose and function of the SLR test is for a medical examiner assessing a patient? The significance of the discrepancy you noted during your clinical examination (the 40 degree v. 90 degree observation)? The significance of the following further potential discrepancies; When Dr Gumbley examined the Claimant (on the 1st November 2006) he measured SLR at 45 degrees. Further we note from your review of the medical records at page 6 of your report, the Claimant s SLR was 60 degrees on the left (when she was examined on 11th December 2006), and indeed when measured again on 8th January 2007 (i.e. after the second accident) it was measured at 80 degrees bilaterally. Do you agree that if there was a genuine organic reason for the Claimant s back symptoms, the usual pattern would be (absent degenerative changes) of broadly consistent SLR results, when measured at various times post-accident, at least once the back symptoms had reached a plateau? You further mention at page 5 of your report that Waddells signs were equivocal. We assume this is a reference to the guidance and various tests set out in the following paper Nonorganic Physical Signs in Low-Back Pain (Waddell et al, Spine 5:117-125, 1980)? Please clarify what you meant by such Waddell signs being equivocal, identifying any areas of ambiguity you are referring to? Was the Claimant positive in terms of some Waddell signs which you tested (and if so which ones)? 19

To what extent is the presence of such signs relevant in the overall context of your conclusions on diagnosis, prognosis and medical causation? 20