October 19, 2006

Expert
Bias

If you have ever rolled your eyes as your expert medical witness is cross-examined by Plaintiff’s/Claimant’s counsel during depositions in personal injury or workers’ compensation cases as to how much “forensic” income your witness generates, either weekly, monthly, or yearly from examinations (IMEs) and depositions, then you should be aware of the limitations placed on this type of cross-examination by the Pennsylvania Supreme Court in its recent ruling in Cooper v. Schoffstall.

In short, Cooper establishes boundaries for both the procedure and the scope of discovery directed at the “potential favoritism” of a non-party expert witness. It is a two way street, meaning that its application is relevant for both Plaintiffs and Defendants in personal injury litigation.

The case involved Dr. Perry Eagle, a well-known and well-respected orthopedic surgeon, whose forensic services are sometimes in demand by insurance carriers and like quixotic entities. In an appeal from a trial court ruling, Dr. Eagle was compelled to disclose his “forensic” finances by producing copies of his insurance carrier-generated 1099s, on the misguided and seemingly cynical theory that “money talks,” potentially influencing the opinions of community-respected physicians eschewing blood-soaked operating rooms for the comfort and convenience of IME examining rooms.

Cooper sets a precedent that will have very limited impact on: (1) IME physicians doing fewer IMEs for fear of being shamed into being compelled to testify under oath about finances; and/or (2) workers’ compensation judges giving any serious consideration to these issues, as they have heard this line of cross-examination ad nauseum.

The issue could have a negative impact if Plaintiffs’ attorneys are allowed to distract juries from considering otherwise compelling and reasonably objective testimony of defense medical experts.

Although the issue is seemingly insignificant in workers’ compensation cases, it could potentially have a negative impact in civil cases if aggressive Plaintiffs’ attorneys are allowed to distract juries from considering the otherwise compelling and reasonably objective testimony of defense medical experts with lengthy cross-examinations on qualifications and bias in an attempt to sway a jury’s perception of financial interest and suggestion of potential bias.

No one, even the “we have better places to be” jurors before whom we practice, begrudges experts earning fees for evaluating injured Plaintiffs or Claimants, as well as charging for their appearances at depositions or trial to testify about their findings. And while no one would penalize well-qualified physicians who supplement income shrunken by soaring malpractice premiums, it is nevertheless an issue of some sensitivity.

Dr. Eagle objected to a subpoena seeking tax forms associated with IMEs from 1999 through 2001, and motioned for a protective order to exclude information on matters unrelated to the Plaintiff.

In Cooper, Dr. Eagle, who performed an independent medical examination on the Plaintiff for purposes of evaluating injuries that the Plaintiff had sustained in a pedestrian/automobile accident, objected to a subpoena that had been served on him seeking the production of Federal 1099 tax forms associated with having performed independent medical examinations for over 3 years, from 1999 through 2001.

Dr. Eagle had motioned for a protective order, seeking to exclude information that related to payments for examinations and depositions that were unrelated to his evaluation of the Plaintiff, contending that the information sought exceeded the bounds of permissible discovery under the Pennsylvania Rules of Civil Procedure.

During argument over Dr. Eagle’s objections, Plaintiff’s counsel produced excerpted reports that Dr. Eagle had authored in connection with other personal injury actions in which Dr. Eagle had conducted independent medical examinations. Cooper’s counsel offered Dr. Eagle’s reports for purposes of establishing that Dr. Eagle had performed somewhere from 200 to 400 independent medical examinations between 1999 and 2001, contending as well that Dr. Eagle had derived substantial income from this type of work, resulting in reports that counsel characterized as being “repetitive and predictable,” with counsel contending that Dr. Eagle’s observations and conclusions were defense-oriented.

The trial court ordered that Dr. Eagle produce selected financial information.

The trial court denied Dr. Eagle’s motion for a protective order, but nevertheless ordered that Dr. Eagle produce selected financial information that would be bound by confidentiality.

Dr. Eagle appealed the trial court’s order, resulting in the trial court issuing a Memorandum Opinion, under which it reasoned that a party is “generally entitled to discovery regarding any matter, not privileged, that is relevant to the litigation’s subject matter and that will substantially aid in advancing claims or defenses.” The trial court concluded that the Plaintiff had demonstrated cause to support selected discovery of limited financial records, reasoning that the documents sought might be relevant to establish bias in front of a jury considering the Plaintiff’s personal injury claims. The trial court specifically rejected Dr. Eagle’s argument that the discovery sought was “burdensome, harassing, and annoying”, also rejecting the argument that the production of the financial documents would have a chilling effect on the doctor’s ability or willingness to perform independent medical examinations in the future.

The Superior Court panel concluded that discovery of this information falls within the broad and general scope of discovery under Pennsylvania Rule of Procedure 4003.1.

On appeal, the Superior Court affirmed the trial court’s Memorandum Opinion, finding that the trial court had exercised its discretion in ordering the production of Dr. Eagle’s 1099 forms. The Superior Court panel concluded that discovery of this information falls within the broad and general scope of discovery under Pennsylvania Rule of Procedure 4003.1. Recognizing legitimate concerns that could arise with regard to the intrusiveness of the discovery of personal financial records, the Superior Court panel reasoned that Pennsylvania trial courts are ably equipped to prevent abuse in such situations.

Appealing to the Supreme Court, Dr. Eagle argued that the financial discovery sought by the Plaintiff went beyond the scope of discovery permitted of an expert witness. Dr. Eagle also argued that the trial court and Superior Court ruling could potentially empower litigants, without necessitating court leave or the payment of expert fees, to freely depose an opposing party’s expert witness on virtually any subject but the subject central to the litigation, being the expert’s opinion on the facts of the case.

Dr. Eagle also argued, albeit unsuccessfully, that the financial affairs of an expert witness, excluding finances related to the court proceeding, were beyond the scope of cross-examination at trial. In Dr. Eagle’s view, this prophylactic measure is necessary to prevent matters relating to insurance from surfacing before a jury. Dr. Eagle also argued for moderation to temper an emerging practice or tactic of the Plaintiffs’ trial bar, being to routinely probe into the personal and financial affairs of medical defense experts, trampling on privacy issues, and potentially precipitating a chilling effect on the availability of qualified and experienced expert witnesses.

The Supreme Court nevertheless concluded that special circumstances could require a trial court to exercise sound discretion in compelling limited production of discovery from an expert witness.

Holding that discovery under the Pennsylvania Rules of Civil Procedure should be interpreted to focus on the main issues in dispute while at the same time reducing intrusive and burdensome collateral forays, the Supreme Court nevertheless concluded that special circumstances could require a trial court to exercise sound discretion in compelling limited production of discovery from an expert witness, generally establishing a boundary requiring the discovery to seek evidence of potential favoritism from the “regular acceptance of compensation from medicolegal work.”

Establishing the threshold cause for discovery of a non-party expert witness retained for trial preparation purposes to be evidence of potential favoritism by the witness, the Supreme Court held that the party seeking discovery must demonstrate a “significant pattern of compensation that would support a reasonable inference that the witness might color, shape, or slant his testimony in light of the substantial financial incentives.”

The Supreme Court affirmed the trial court and Superior Court rulings, ordering Dr. Eagle to produce the subpoenaed financial information.

With it being undisputed that Dr. Eagle had performed 200 or more independent medical examinations over a 3 year period, which, by the way, translates into only about 1.5 examinations per week, the Supreme Court affirmed the trial court and Superior Court rulings, ordering Dr. Eagle to produce the subpoenaed financial information.

Further holding that this type of discovery should be “the least burdensome and intrusive kind possible,” the Supreme Court suggested that the appropriate entry point for this type of discovery, obviously with a showing of appropriate cause, is to use written interrogatories to depose the expert witness, with the written interrogatories seeking the following:

1. an approximation of the amount of compensation received and expected in the pending case;
2. a description of the witness’s litigation-related activities;
3. an approximate percentage devoted to specific types of litigation and/or work on behalf of particular litigants, classes of litigants, attorneys, and/or attorney organizations;
4. the number of examinations, investigations, or inquiries performed in a given year, limited to the last 3 years;
5. the number of times that the witness has been called upon to testify within the same 3 year period;
6. an approximation of the percentage of the witness’s overall professional work devoted to medicolegal/litigation-related services; and,
7. an approximation as to the amount of income each year, again limited to the past 3 years, that the witness has earned in the performance of litigation-related services.

The Court directed that the Plaintiff utilize written interrogatories to seek less burdensome and intrusive financial information.

Holding that written interrogatories should produce sufficient information to support adequate trial preparation as to potential favoritism or bias, the Supreme Court vacated the orders of the trial court and Superior Court compelling Dr. Eagle to produce his personal financial records, instead directing that the Plaintiff utilize written interrogatories to seek less burdensome and intrusive financial information from Dr. Eagle as to his litigation-related practice and income generation.

In short, Cooper’s application is relevant for both Plaintiffs and Defendants in personal injury litigation. By extension, this ruling need not necessarily be limited to medical legal witnesses, but could also apply to other classes of experts.

Expert witnesses should become more adept at providing responses without interference with their practice or income.

As a practical matter, broad all-inclusive discovery, either by deposition, interrogatories, or subpoenas, must be opposed under Cooper, with the party opposing broad discovery being prepared to provide the specific information detailed by the Supreme Court in Cooper.

As Cooper becomes a more prominent fixture in the landscape of personal injury litigation, expert witnesses should become more adept and facile at providing appropriate responses without substantial interference with their practice or income.

Questions

Questions concerning this decision, or any questions involving casualty litigation or workers’ compensation practice and procedures, can be directed to our general litigation and workers’ compensation attorneys.

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