APPRECIATION OF SCIENTIFIC/EXPERT EVIDENCE:

PROFESSIONAL ‘STANDARD OF CARE’ AND ‘DUE PROCESS’

Prof. Anil B. Suraj1

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’.2
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.3 In certain
instances, the negligence may be of such a grave nature, that it may even amount to being a
punishable crime.

1
Faculty, Law and Public Administration, IIM Bangalore. A significant part of this note draws from the
interactions the author has had with Judges from different regions of India.
2
In Section 2 of the Act, the terms ‘Proved’ (or ‘Disproved’) are stated to be as follows: A fact is said to be
proved (or disproved) when, after considering the matters before it, the Court either believes it to exist (or
that it does not exist), or considers its existence (or non-existence) so probable that a prudent man ought,
under the circumstances of the particular case, to act upon the supposition that it exists (or that it does not
exist). ‘Not proved’ is the appropriate term used when a fact is neither proved nor disproved.
3
This is commonly termed as ‘tortious liability’, i.e., liability arising due to a tort (wrong).

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1.1 Contractual implications

A claim of professional negligence results in serious legal implications, which could be
classified as follows: 1) Impact on work obligations; 2) Incidence of ‘principal’ liability; and 3) 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.

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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.4 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:

a. Expected action (or omission) is outside the scope of ‘reasonable duty’.

b. The claim is based on the consequences of a ‘supervening’ negligent action of a third
party.
c. 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.
d. 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.
4
This is termed as the ‘liquidated damages’ clause.

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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.5 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.6 Soon thereafter, the US Supreme Court extended the
application of this standard to all forms of expert evidence. 7 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.8 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:

a. Whether the theory or technique can, or has been, tested;

b. The extent of peer review and publications – we should now perhaps also include the journal
impact factor and the citation index reading;
c. The known or potential error rate; and
d. 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, 9 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.

5
Frye v. U.S. – 34 ALR 145 (App. D.C. 1923)
6
Daubert v. Merrell Dow Pharmaceuticals, Inc. – 125 L.Ed. 2d 469 (1993)
7
Kumho Tire Co. v. Carmichael – 119 S.Ct. 1167 (1999)
8
Smt. Selvi v. State of Karnataka – (2010) 7 SCC 263
9
In the matter of State (NCT) of Delhi v. Navjot Sandhu – 2005 Cri.L.J. 3950, the Supreme Court of India had an
occasion to appreciate the evidence produced by a ‘phonetic expert’ as well.

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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-à-vis their
contribution to legal proceedings.10 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: (a) the witness is
qualified as an expert by knowledge, skill, experience, training or education; (b) the evidence is
relevant and reliable; (c) the expert’s opinion is based upon information reasonably relied upon by
experts in the particular field; (d) the expert testimony will assist the judge to understand the
evidence or to determine a fact in issue; and (e) the expert testimony will not create unfair prejudice
or confuse or mislead the judge. 11 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:

1. 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.12
2. 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.”13
3. 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

10
From an interaction with a few Principal District & Session Judges from across the country, some leading
grievances, include – experts are willing to only speculate rather than be confined to drawing well founded
inferences from available facts and data; experts are often willing to give evidence that extends beyond their
areas of expertise; there is widespread groupism among experts of quite a few domains and most of them are
not prepared to consult one another; very often discrepancies exist between the scientists’ work-notes and
their laboratory books; some of the tests are not adequately supervised; and appropriate systems are often not
in place for the cross-checking of some of the results and procedures.
11
Eskin v. Carden – 842 A.2d 1222 (Del. 2004)
12
Claar v. Burlington – 29 F.3d 499 (9th Cir. 1994). In Ambrosini v. Labarrague – 101 F.3d 129 (D.C. Cir. 1996) it
was qualified that “the possibility of some uneliminated causes presents a question of weight, so long as the
most obvious causes have been considered and reasonably ruled out by the expert.”
13
General Electric Co. v. Joiner – 522 US 136 (1997)

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of the dispute, or whether they have developed their opinions expressly for purposes of
giving the testimony.
4. 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.”14
5. The judge should also ascertain as to whether the field of expertise claimed by the expert is
“known to reach reliable results for the type of opinion the expert would give.” 15 For
instance, a clinical doctor was precluded from testifying to the toxicological cause of the
patient’s respiratory problem, where the opinion was not sufficiently grounded in scientific
methodology.16
6. 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.”17
7. 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

14
Daubert v. Merrell Dow Pharmaceuticals, Inc. – 125 L.Ed. 2d 469 (1993)
15
Kumho Tire Co. v. Carmichael – 119 S.Ct. 1167 (1999). It has been mentioned that the ‘general acceptance’
factor does not “help show that an expert’s testimony is reliable where the discipline itself lacks reliability, as
for example, theories grounded in any so-called generally accepted principles of astrology.”
16
Moore v. Ashland Chemical Inc. – 151 F.3d 269 (5th Cir. 1998)
17
Claar v. Burlington – 29 F.3d 499 (9th Cir. 1994)

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