This chapter provides an overview of the legal and medical principles that underpin medical negligence litigation, including the definition of medical negligence, what constitutes a psychiatric injury, the psychiatric evaluation and practical issues which commonly arise, when undertaking a psychiatric assessment in the context of clinical negligence litigation. After criminal negligence, the elements of civil negligence are set out including duty of care and standard of care. Legal concepts of causation and psychiatric injury differ from medical or scientific causation. The professional obligations on the forensic psychiatry as expert are to be neutral and objective, to obtain and document consent, to structure how instructions are taken and how reports are written in the light of court guidelines. As with all areas of medicine, the expert must comply with the ethical, professional and legal obligations of doctors. Patient privacy and confidentiality of personal health information must be protected. Most, if not all, patients referred by their solicitors, or by the defendant medical indemnity body, will already feel betrayed and let down by the medical profession. They will be fearful and distrustful. On the other side, there is a clinician who fears reputational damage.

In the landmark case Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), the Supreme Court of the United States articulated the admissibility standard for expert evidence. In jurisdictions that have adopted the Daubert standard, trial court judges must make difficult decisions regarding the admissibility of proffered expert evidence. Although all federal courts and nearly all state courts use the Daubert standard, we know little about how judges fulfill their gatekeeping role when making admissibility decisions. This chapter reviews the empirical and theoretical considerations regarding how judges in Daubert jurisdictions determine which proffered expert evidence should be admitted. After reviewing the standards governing the admissibility of expert testimony, which includes a discussion of the Federal Rules of Evidence, Daubert, and related cases, the chapter provides a discussion of each Daubert criterion, including the available evidence relating to judges’ understanding of those criteria. It then discusses the heuristics and biases that affect judicial decision-making. The chapter concludes with a discussion of implications for practice and research.

In Chapter 3, the analysis addresses the procedural framework of the ICC, first looking to the rules and principles governing the major stages of proceedings from investigation to pre-trial to trial and appeal; and then looking at the specific rules governing evidence, including expert evidence, most relevant to cases of environmental harm.

This chapter first identifies five entry points for science in environmental investment disputes. It continues with analysing framing techniques of both litigants and arbitrators that aim to strategically manage the science-intensity of the legal inquiry. The chapter discusses varied scientific fact-finding methods of investment tribunals. Despite that party-submitted evidence dominates investment arbitration, on rare occasions panels appoint independent experts. As to causal inquiry, the chapter discusses that open causal assessments remain a rarity in arbitral practice, though science-based causal nexus increasingly gains relevance in environmental disputes. As to the standard of review, arbitral tribunals are generally deferential towards the scientific claims of host states. Yet they design different standards to review the scientific basis of host states' risk regulatory measures, for instance, some focus on the transparency of the regulatory process, while others rely on regulatory trends of other states. This chapter concludes with analysing and comparing the various standards of review applied in science-intensive investment arbitral proceedings.

This chapter examines the practice of the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), the African Court of Human and Peoples’ Rights (ACtHRP) and that of the ECOWAS Court. The analysis centers on comparable cases from their jurisprudence, where human rights claims have been filed due to health injuries allegedly caused by toxic exposure. The chapter addresses inter alia the role of the precautionary principle as a framing technique, applicable causal inquiries, the evidentiary practice of these fora and their deferential standards of review. It extensively criticizes the causal inquiry of the ECtHR, where causal links between toxic emissions and health injuries are apparently assessed based on non-scientific, intuitive proxies. From IACtHR jurisprudence the Human Rights and the Environment Advisory Opinion will also be discussed with respect to the causality-based jurisdiction the court announced.

Commercial wealth is increasingly to be found in intellectual property rights. Protection of such rights is exclusively the domain of litigation, to be decided by judges who often will have no personal education or experience in the discipline involved. Thus expert witnesses in the relevant field will be required. Different procedures have evolved: court-appointed experts, assessors, the Hot Tub. How can the objectivity of expert witnesses be ensured? In a particular field there may be experts, but issues can still be decided by lay judges or juries without their assistance. Is this expert really necessary?