WRULD Claims heard in Courts in England, Scotland and Wales

Hearing(s) - Moran - v - South Wales Argus

Date	Court	Claimant(s)	Task	Injury	Judgment for
Nov 1994	Cardiff High	Moran	DSE use: copytaking	Repetitive Strain Injury	Defendant

The Plaintiff sought damages for Repetitive Strain Syndrome allegedly caused by her work as a Copytaker. The Plaintiff's case was reported in the regional press over several days in April 1994: in the Western Mail under the headlines: Newspaper sued over illness and Pain is claimed by strain victim; and in the South Wales Argus under the headlines: Ex-Argus typist in RSI claim; Typist in RSI claim was under stress, court told; and Ex-Argus worker tells of 'terrible' pain.

However, this Judgment is noteworthy in that it effectively marked the demise as a medical expert witness of one of the foremost 'apostles' of RSI, Dr Richard Pearson. Dr Pearson acted as a medical expert, on behalf of the (unsuccessful) Claimant, in Brelsford -v- South Glamorgan Probation Department and in Mughal -v- Reuter. In order to appreciate the full implications of the criticisms made of Dr Pearson in Moran -v- South Wales Argus, it is necessary to quote a lengthy passage of the Judgment, in which Mr John Griffith Williams QC states:

I now turn to the evidence of Dr Pearson.

"The testimony of an expert is likely to carry more weight, and more readily relate to an ultimate issue than that of an ordinary witness. It is thus understandable that higher standards of accuracy and objectivity should be required.." Cross on Evidence 7th Edition at page 495. Although an expert witness may be expected to be biased, wittingly or unwittingly in favour of the side which calls him, the court is entitled to look to an expert witness for assistance and guidance and to expect accuracy and objectivity. Dr Pearson displayed neither quality. He is an expert witness whose evidence was comprehensively discredited under cross-examination. his evidence is both flawed and unreliable. This judgement would be of considerable additional length were I to summarise and analyse Dr Pearson's evidence; a complete transcript of his evidence has been provided to the parties, and so I propose to be selective, and identify only some of the many features or parts of his evidence which have convinced me that no reliance should be placed upon his opinions.

In his letter dated 14th April 1990, Dr Pearson expressed the opinion "This lady has a severe muscle overuse (repetition) injury'' [Bundle E/l00]. In his first report dated 18th August l990, he diagnosed a muscle overuse injury and in his second report dated 4th September 1991 "a severe repetitive strain syndrome (some features of carpal tunnel syndrome) a bilateral flexor tenosynovitis and minor signs of sympathetically maintained pain (algodystrophy, reflex sympathetic dystrophy)" and by reference to 'Clinical Medecine: A textbook for medical students and doctors': Kumar and Clark, Repetitive Strain Syndrome [Bundle A3/9].

At the conclusion of his evidence-in-chief, Dr Pearson said he would no longer use 'Repetitive Strain Syndrome' as a term to describe the plaintiff's symptoms. He went on to say, early in his cross-examination he was no longer suggesting that the plaintiff was suffering from carpal tunnel syndrome, a bilateral flexor tenosynovitis or sympathetically maintained pain and that it is possible to define her condition by reference to the known pathological condition, epicondylitis. But when he was asked to describe the diagnostic criteria for epicondylitis, it was apparent that the plaintiff's symptoms of diffuse pain and muscle tenderness, as described by Dr Pearson, were at odds with that diagnosis. Dr Pearson then reverted to his previously abandoned diagnosis of Repetitve Strain Syndrome! It should also be noted he had completely failed to diagnose epicondylitis in his 2 medical reports, and chose to make the diagnosis for the first time when giving evidence! The explanation for this change of opinion, is I suspect, Dr Pearson's appreciation late in the day that the courts look for evidence of a pathological condition and injury.

Dr Pearson is a member of the Royal College of Physicians and a consultant physician whose experience has been in clinical pharmacology. He has no training, apart from his student education, in upper limb disorders. His Senior House Officer experience was on the team of a consultant rheumatologist. So how does he come to claim expert knowledge in the field of upper limb disorders, with all its orthopaedic as well as psychiatric complications? In 1975, he started to see musicians and his interest in upper limb disorders started then; the only professional body associated with upper limb disorders with which he is associated is the British Association of Performing Arts Medecine. His publication in the field is restricted to one paper which proceeded on the basis that RSI exists and concluded, on a limited sample that "present experience suggests that patients with RSI are unlikely to develop RSD but this remains unproved''. I am not satisfied that he has the expertise he claims, but I shall refer to this later. 3. Dr Pearson said that the plaintiff ''had some features of tennis elbow but also features of more diffuse muscle tenderness which some would call soft tissue upper limb disorders or RSI" and relied upon the leading textbook - Hunter's Diseases of Occupation and in particular the chapter written by B.L.Hazleman [Bundle A2 (a)/73a]. Dr Pearson was asked by Mr Maxwell QC if it was his view as a medical expert that there was a group of diffuse aches and pains that affect the upper arms, in addition to the conditions of known pathology and replied "Yes; I will say that the possibility that these exist is clearly stated by Hazelman"; he went on to agree that if Hunter was wrong or should not be relied upon, his view would change.

Later when Mr Pell was cross-examined by Mr Maxwell QC, the relevant parts of Hazelman's chapter relating to Aetiology were considered in some detail, and the references checked to ascertain whether they provided any support for the propositions in support of the aetiology of RSI [Bundle H/39] . It is not necessary for the purposes of this judgement for me to rehearse that exercise: it suffices to observe that Mr Maxwell was able to demonstrate that many of the propositions were not supported by those references. Although I did not inquire of Mr Brent QC, I suspect that it was this exercise which may have played a part in persuading him to place little reliance upon the evidence of Dr Pearson.

For present purposes, the relevance of this evidence is that it exposes the limitations to the expertise claimed by Dr Pearson, rather than support for the view of many medical practitioners (represented in this case by Mr Campbell Semple) that scientific and epidemiological evidence does not provide evidence for the existence of RSI. Further proof of Dr Pearson's limitations comes from the following: his knowledge of anatomy is very suspect indeed; he said there was one extensor carpi radialis muscle with two heads, whereas there are 2 such muscles, the longis and the brevis; he said there are at least 3 extensor muscles whereas there are 11, at least 9 intrinsic muscles of the hands whereas there are 20.

His diagnostic techniques, when subjected to close scrutiny are clearly not in line with accepted medical practice, and it should be observed that Dr Pearson is not a doctor with a sound and detailed knowledge in the particular field who is seeking to establish better diagnostic techniques. A few examples will suffice - he carried out grip tests to measure the strength of the plaintiff's grip even though such a test is not recommended in any medical textbook and he knows of no other doctor who uses such a test; he applied a test to find a tache cerebral sign as a means of establishing pain mechanism, but accepted that such a test is not recommended in the medical textbooks; his questioning of the plaintiff to assess her subjective response to his tests for pain and tenderness was wholly leading. He described how he would apply pressure and ask "Is this more uncomfortable than you would have expected from me pressing onit?" I was not surprised when Dr Pearson conceded he was unaware of any other clinician in this country who uses a similar technique or practice. This may explain the different findings of both Mr Pell and Mr Semple - Mr Semple who, unlike Dr Pearson, has considerable experience of pain assessment.

Having said "in order to make a diagnosis I have to be reasonably sure that the diagnostic criteria for the condition are satisfied", he said first he was not reasonably sure that the diagnostic criteria of Sympathetically Maintained Pain were satisfied but that they probably were, then he claimed the plaintiff met only 2 of the 4 criteria but then said there were 5 criteria and that she met 4 of the 5 before saying she met only 1 of the 5: he eventually said it was no longer his diagnosis. Yet Dr Pearson advised and arranged for the plaintiff to have the invasive guanethidine pain block treatment. Any further criticism would be otiose.

Dr Pearson claimed he had observed muscle wasting of the forearm but later, when cross-examined he said that the wasting was restricted to a thin strip of muscle, one half to an inch wide on the dorsal aspect of the forearm and that although he made a reference in his letter dated 14th April 1990 [Bundle E/99] to wasting of the extensor carpi radialis of both forearms, he made no note of any such wasting in his examination notes in April 1990 [Bundle A3/llA]. I observe that it is a feature of the observations of Dr Pearson, many made within a days of the examinations of others that he was noting symptoms missed by others, including Mr Pell and Mr Semple. When Dr Pearson examined the plaintiff on 4th September 1991, he claims he saw "wasting of the thenar eminences of both hands''. Asked whether such wasting would have been visible and obvious to Mr Semple when he examined the plaintiff some 9 days before, he said he would have expected Mr Semple to see it. Mr Semple did not. The explanation for this inconsistency is provided by Dr Pearson he was asked if the plaintiff had pointed out the wasting herself; he replied, not that she did not, but he 'would say she did not', that he may have asked her if she'd had more muscle at the site after he had himself noticed apparent wasting. I consider it more than likely that the plaintiff either volunteered or was prompted to volunteer that there had been wasting, a fact that Dr Pearson was prepared to accept, and did accept without question, even though an objective study of her skeleture and build would have revealed that she is one of those persons who have little muscle constitutionally.

As I have already made clear, I am not prepared to rely on the evidence of this witness; he certainly provides no reliable evidence to prove that the plaintiff was displaying relevant symptoms of visible physical harm or injury.

The successful defence of this claim does not appear to have received any press coverage.

V2.01

Last updated: 28/03/2014