Opinion of the Court of Cassation on the Contention of Expert Opinion and Expert Report

Author: Alper Uzu

"Expert Opinion" in Short

The notion of Expert Opinion, which entered into our law through the Code of Civil Procedure ("CCP"), has been a frequently resorted to method of helping to resolve disputes by the parties in our judicial system over the course of time.Expert opinion, which is the reflection of the Anglo-Saxon Law concepts, "party expert" or "expert witness" in our legal system, is defined in Article 293 of the CCP:

1) The parties may obtain scientific opinion from an expert in relation to the subject of the case. Extra time cannot be requested solely based on this purpose.

2) The judge may decide, upon receipt of the request, or ex officio, to call the expert who has prepared the report to the hearing, and to listen to him/her. The judge and the parties may ask pertinent questions when the expert is called.

3) If the expert does not appear at the hearing without a valid reason, the report that he/she has prepared shall not be evaluated by the court.

For more detailed information on this topic, you can review our article called, "An Important Innovation Brought by the New Civil Procedure Law: Expert Opinion."1 

Throughout the course of the proceedings, parties may submit an opinion from an expert to the court relating to the event or legal matter constituting the issue of dispute, in order to support their claims or defenses. The expert opinion is, at times, presented during the phase of exchange of petitions, and sometimes during the inquiry, especially after the expert investigation, by the party for whom the expert report contains unfavorable analysis and comments.

In accordance with Article 266 of the CPP, the court may decide that there shall be an expert investigation regarding the case, and the opinion of the expert shall be taken regarding the subject of investigation, where the solution of the dispute requires special and technical knowledge other than the law, upon the request of one of the parties, or ex officio.

The expert opinion presented to the file in the course of the proceedings is, to a large extent, supportive of the party that is presenting the opinion. As a natural consequence, the expert opinion presented by one of the parties may contain opposing views and even completely contradict the opinion of the expert report that is already filed with the court. At this stage, it is a matter of debate whether or not the investigation shall be finalized and the case decided, according to the opinion of the court, or whether a new expert examination is to be sought.

What is the Solution of the Supreme Court in the Event of a Contradiction between the Expert Opinion and the Expert Report?

According to the decision of the 15th Civil Chamber of the Supreme Court, dated 10.11.2016 and numbered 2015/5127 E. 2016/4635 K., in the event of a contradiction between the expert opinion that is prepared as a result of the expert examination conducted by the court, and the expert opinion which is presented to the file by one of the parties, the file shall be delivered to a "new panel of experts," as the right to a fair trial of the party who presents the expert opinion to the file might be violated, otherwise: 

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