Expert witness biased – can the court still use existing expert opinion?
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In a ruling of practical relevance, the Federal Court of Justice clarified whether and in which cases the expert opinion of an expert declared to be biased may be used by the court.
Problem description: New expert opinion if the expert is biased, Section 412 (2) ZPO
Section 412 (2) ZPO states:
“(2) The court may order another expert to provide an expert opinion if an expert has been successfully rejected after providing the expert opinion.”
The wording “may” in Section 412 (2) ZPO suggests that expert opinions that have already been prepared may be used at the discretion of the court despite the expert’s bias.
The high workload in German courts is likely to tempt many judges to exploit the leeway that – supposedly – arises from Section 412 (2) ZPO to the detriment of the party affected by the bias.
The BGH has now rightly put a stop to this!
The BGH ruling of 05.12.2023 – VI ZR 34/22
In its ruling of December 5, 2023 (case no. VI ZR 34/22), the BGH first clarified that, regardless of the wording of Section 412 (2) ZPO (keyword: “may”), the expert opinion of a rejected expert may not be used.
According to the further explanations of the BGH, exceptions are only possible within very narrow limits, namely if
“the party invoking the expert’s bias has provoked the reason for refusal in an abusive manner and at the same time there is no cause for concern that the expert’s impartiality was already impaired when preparing his previous expert opinions.”
With regard to this exception, the Federal Court of Justice rightly went on to state that it cannot be sufficient for the assumption that there was no impairment of impartiality when the expert opinion was prepared that the connecting factor for the assumption of impartiality only came to light later, i.e. after the expert opinion was prepared. The BGH literally:
“It does not follow from the fact that a (possible) impairment of impartiality did not manifest itself earlier that such an impairment did not exist.”
Conclusion – expert opinion of a rejected expert practically never usable
The case that the expert opinion of an expert who has been rejected due to bias may nevertheless be used has a purely theoretical nature. This is because:
If the reason for refusal was provoked in an abusive manner, then the refusal of the expert on this ground alone is likely to fail.
However, once the expert has been rejected, it cannot be ruled out, irrespective of the specific circumstances, that the identified concern of bias already existed when the expert opinion was prepared.
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