Day on Torts
The Pennsylvania Supreme Court has ruled that a party may conduct discovery into the financial records on a non-party’s expert witness "to facilitate an inquiry into bias." As explained in more detail below, it is clear that such discovery will not be permitted of every expert.
In Cooper v. Schoffstall, No. 212 MAP 2004 (Sept. 7, 2006), Plaintiff sought to discovery financial information from Dr. Eagle, the physician chosen by Defendant to conduct our equivalent of a Rule 35 examination. Specifically, Plaintiff sought "copies of federal form 1099 tax records associated with his performance of services as an independent contractor for calendar years 1999, 2000, and 2001, in undertaking ‘defense-related reports, examinations and depositions.’" Dr. Eagle resisted the subpoena, saying the discovery was inappropriate. Plaintiff contended that "that Dr. Eagle performed abundant defense medical examinations (on the order of 200 to 400 in some recent years), derived substantial income from this work, and issued written reports containing repetitive, predictable, defense-favored observations and conclusions" and therefore discovery was appropriate to show the existence and depth of his pro-defense bias.
The lower courts permitted the discovery. On appeal, Eagle maintained that "the personal tax information, other than records of payments made from defense counsel, is merely a gratuitous effort to impugn his credibility, disrupt his business, prevent him from ever desiring to offer medical-legal services again, and bully any potential expert witness from offering similar services." Plaintiff argued that the discovery sought was appropriately focused and that "[w]ithout the ability to obtain concrete evidence of the alleged pattern of bias, Ms. Cooper projects that impeachment cross examination is likely to be unavailable or ineffective against a skilled, experienced expert who, knowing that he or she is safe from contradiction, may equivocate and prevaricate with impunity."
The Court held that the trial court did not abuse its discretion in permitting the discovery to go forward. The Court made it clear that such discovery would not be permitted in every case. Instead, the Court said that "that the appropriate, threshold showing to establish cause for supplemental discovery related to potential favoritism of a non-party expert witness retained for trial preparation is of reasonable grounds to believe that the witness may have entered the professional witness category. In other words, the proponent of the discovery should demonstrate a significant pattern of compensation that would support a reasonable inference that the witness might color, shade, or slant his testimony in light of the substantial financial incentives."
However, the Court said that the tax records themselves did not need to be produced under the facts. Instead, a deposition by written interrogatories was ordered and the following questions were permitted: "the approximate amount of compensation received and expected in the pending case; the character of the witnesses’ litigation-related activities, and, in particular, the approximate percentage devoted to specific types of litigation and/or work on behalf of a particular litigant, class of litigant, attorney, and/or attorney organization; the number of examinations, investigations, or inquiries performed in a given year, for up to the past three years; the number of instances in which the witness has provided testimony within the same period; the approximate portion of the witness’s overall professional work devoted to litigation-related services; and the approximate amount of income each year, for up to the past three years, garnered from the performance of such services."
Additional discovery would be permitted if deemed appropriate by the trial judge.
Read the opinion here.