Tennessee Court Rules on Discovery of Income from Testifying Expert

This appeal arises from a medical malpractice case that went off the rails when the defense sought to discover financial information from plaintiff’s liability expert.  On further consideration, since the procedural history involves four motions for sanctions, two trial continuances, a denied interlocutory appeal, a dismissal and this appeal, perhaps I should say the case went off the rails, down an embankment into a sewage-filled ditch replete with rats the size of small dogs.   

It all started simply enough.  Defense counel served a notice of deposition for plaintiff’s liability expert, Dr. Evans, and requested financial information.  Specifically, the notice requested documents reflecting the income the good doctor had earned serving as an expert witness including his schedule of charges, all income received from reviewing cases, consulting or testifying for a 10 year period and 1099s and related documents showing his income for the same 10 year period.   No objection was filed to the notice but Dr. Evans failed to bring them to his deposition.  The deposition proceeded nonetheless and Dr. Evans was asked questions related to his income.  Dr. Evans testified he did not know how much he earned annually from his work as an expert witness and could not even give an estimate. While he estimated 15 to 20% of his income was derived from his work as an expert witness, he could not provide any information as to the actual dollar amount. 

Thereafter, a trial date was scheduled and the defense moved to compel production of the documents previously requested as part of Dr. Evans deposition.  Plaintiff urged the trial court to deny the motion as the documents were not in her possession.  Defense counsel insisted plaintiff could obtain the documents from her expert but asked the trial court to grant a motion for out-of-state subpoena if the trial court was inclined to deny the motion to compel.   While plaintiff conceded the financial information was relevant on the issue of bias, plaintiff asked the court to balance the privacy interests of the expert.  Ultimately, the trial court denied the motion to compel since the requested documents were not in the possession of the plaintiff but instructed defense counsel to file a petition for an out-of-state subpoena.  The trial court suggested the scope of the subpoena should be reduced to a five year period instead of ten and also suggested the parties agree to the production of an affidavit from Dr. Evans’ accountant giving the information as opposed to the production of the underlying documents which contained other personal, financial information.

Defense counsel moved for the out-of-state subpoena and supported the motion with information detailing Dr. Evans’ testifying history and arguing the requested documents went to the very core of proving Dr. Evans’s bias.  Specifically, the defense presented evidence that Dr. Evans had been disclosed as an expert in 179 cases in 23 different states and in 96% of those cases he offered testimony on behalf of the plaintiff.  Not surprisingly, the defense argued Dr. Evans was a professional witness and exploration of his financial interest and bias was paramount.  Plaintiff countered Dr. Evans was merely a “seasoned” expert and the subpoena was an invasion of his privacy.  At the hearing on the motion, the parties ultimately agreed an affidavit from Dr. Evans’ accountant would be a suitable means for obtaining the information.  But again, the scope of the disclosure was in dispute.  Plaintiff argued Dr. Evans should only have to disclose the percentage of his income derived from his work as an expert witness but should not have to disclose any income amounts.   The defense insisted income amounts were necessary to fully explore Dr. Evans’s financial interest and bias.

The trial court agreed with the defendant and ordered Dr. Evans accountant to produce the information within two weeks due to the looming trial date.  Before the hearing concluded, plaintiff’s counsel expressed to the trial court her concerns that Dr. Evans would not comply with the order requiring disclosure of his income amount.   The trial court reiterated her order and indicated it would apply to both plaintiff and defense expert witnesses.  She instructed plaintiff’s counsel to provide the affidavit directly to defense counsel rather than file it with the court, and she instructed defense counsel that the affidavit was not to be disseminated beyond the confines of his office.   Finally, the court ordered the affidavit could only be used for impeachment in the subject litigation and only if permitted to do so by subsequent order of the court.

Two weeks came and went.  No affidavit.  Defense counsel filed a motion for sanctions based on the failure to comply with the court order.   The defense reminded the trial court that the information had originally been requested from Dr. Evans on January 15, 2010 and the August, 2012 trial date was looming.  At the hearing, plaintiff’s counsel sought a modification of the order and requested the affidavit be provided directly to the court for an in camera review.   The court directed the parties to return the following day after plaintiff’s counsel had an opportunity to consult with Dr. Evans. 

The following day, plaintiff’s counsel indicated Dr. Evans would provide the affidavit if it was submitted only to the judge for in camera review.  Consequently, the court ordered Dr. Evans’ accountant to produce the affidavit to her.  If the affidavit was consistent with Dr. Evans’ deposition testimony (i.e. 15 to 20 % of his income was derived from expert witness work), then she would retain the affidavit and it would not be provided to defense counsel.   Defense counsel insisted he should be allowed to learn the full amount of Dr. Evans’ expert witness income.  The trial court ruled defense counsel could ask those questions on the stand but she would not require the information in the affidavit.  Plaintiff’s counsel then flatly told the court that Dr. Evans would not answer any such income-related question on the stand.   The trial court warned plaintiff that either Dr. Evans would provide the information or he would not testify at all.   The affidavit was to be provided by July 12, 2012.  Because of the delay occasioned by the discovery dispute, the trial court granted plaintiff’s motion to continue the trial date.

July 12th  came and went.  No affidavit.  A second motion for sanctions was filed.  In response to the second motion for sanctions, plaintiff’s counsel informed the court that Dr. Evans was willing to provide the affidavit provided a more explicit order was entered which (1) allowed Dr. Evans to recuse himself in the event the court found defense counsel was entitled to the affidavit and (2) under such circumstances, provided for the return of the affidavit without further dissemination.  Clearly losing patience, the trial court reminded plaintiff’s counsel that she had previously assured the court on two separate occasions that the affidavit would be forthcoming and she could no longer accommodate Dr. Evans’ demands.  The trial court excluded Dr. Evans finding he had refused to provide his affidavit in violation of a court order. 

Thereafter, plaintiff filed a motion to amend the trial court’s order excluding Dr. Evans.  Plaintiff’s counsel argued Dr. Evans had not refused to provide the affidavit but instead was waiting on the errors in a prior court order to be cured.   Plaintiff’s counsel insisted the order submitted by the defendant had failed to address the safeguards specifically ordered by the court and instead simply incorporated the oral rulings.  

After yet another hearing on the issue, the trial court agreed to set aside the order excluding Dr. Evans but again reiterated that Dr. Evans would have to provide income figures rather than just mere percentages.  However, she permitted the parties the opportunity to brief the issue, and they did.   After reviewing the briefs, the trial court ordered Dr. Evans to produce an affidavit for in camera review.  If the in camera review revealed Dr. Evans earned more than 15 to 20% of his income for expert witness fees (in contradiction to this deposition testimony), the affidavit would be supplied to defense counsel unless Dr. Evans’ elected to withdraw as a witness.  If Dr. Evans withdrew, the affidavit would be returned without disclosure to defense counsel or others.  If Dr. Evans testified at trial, defense counsel would be permitted to ask about Dr. Evans’ income for a limited number of years.

In response, Dr. Evans finally produced the affidavit.  But unfortunately, Dr. Evans was not quite done.  As part of his email to the trial court, he included two notices/conditions to the court opening the attachment containing the affidavit.   The first notice advised the court that if she found the affidavit should be provided to defense counsel then he would withdraw as an expert.  The second notice advised the court that he “definitely” and “absolutely” but yet “politely” would not answer any questions about his income. 

Three days after Dr. Evans supplied the affidavit, plaintiff filed a motion for interlocutory appeal seeking review of the income issue.  Thereafter, the trial court sent a letter to both counsel indicating she had not opened the attachment containing Dr. Evans’ affidavit given his conditions.   In response to all this, the defense filed its third motion for sanctions again asking the court to exclude Dr. Evans as it was “as plain as the fly in the buttermilk” that Dr. Evans would not comply with the court’s orders. 

Another hearing was set and the trial court denied the motion for sanctions “at this time” and granted the plaintiff’s motion for interlocutory appeal.   The Court of Appeals and the Tennessee Supreme Court denied the plaintiff’s application for permission to appeal., and defense counsel filed its fourth motion for sanctions again asking the trial court to give Dr. Evans the boot.   Because of the ongoing issue, the trial court again continued the trial while waiting for plaintiff’s response to the latest motion for sanctions.  Plaintiff responded that Dr. Evans had provided the requested affidavit but conceded he would not answer questions at trial related to his income.  At this point, the trial court had enough and told plaintiff it was time to find another witness.  Dr. Evans was excluded. 

Plaintiff asked for 45 days to find another liability expert.  The trial court gave plaintiff sixty days to disclose another expert or non-suit.  Sixty days came and went.  No new expert.  No non-suit.  The trial court dismissed the case and plaintiff appealed alleging two assignments of error:  (1) did the trial court abuse its discretion in requiring Dr. Evans to disclose his income information; and (2) did the trial court abuse its discretion in excluding Dr. Evans for failing to comply with the trial court’s orders.

The short answer to both questions is a resounding no.  In providing this answer, the Court of Appeals opinion gives us a lengthy and excellent history of the issues surrounding paid expert witnesses.  The Court of Appeals also provides us a summary of various approaches used in different states.  

Ultimately, the Court of Appeals makes clear that in Tennessee the jury can consider an expert’s bias or financial interest in determining the weight to give to the expert’s testimony.   Evidence suggesting bias is permissible under Tennessee Rule of Evidence 616.  And, Tennessee Rule of Evidence permits cross-examination on any matter relevant to the case including credibility.  

As to Dr. Evans, the Court of Appeals found the trial court had exercised the “patience of Job” in trying to fashion a “reasonably tailored and minimally intrusive” compromise for the parties’ competing interests.  Further, the Court of Appeals rejected plaintiff’s argument that the 2011 amendments to the Tennessee Rules of Civil Procedure precluded the forced disclosure of an expert’s income.  While the new rule requires the parties to provide “a statement of the compensation to be paid for the study and testimony in the case”, the Court of Appeals concluded this language was simply to facilitate the exchange of basic information and was not intended as “a ceiling on the amount of information to be discovered” 

Finally, the Court of Appeals expressly indicated its holding was limited to the facts of this particular case and their opinion was not intended to establish broad guidelines regarding financial disclosures by experts.  In fact, the Court of Appeals noted a bright line rule would not be practical.  Instead, trial courts are vested with broad discretion on discovery , the scope of cross-examination and controlling their dockets and the trial court did not abuse its discretion on any of these issues with respect to Dr. Evans. 

While the Court of Appeals expressly limits its holding to the facts of this case, if you have an issue regarding an expert’s financial interest or bias, you should read this case as it does a nice job of laying out the issues and the law.  And, as you do that, try to figure out why plaintiff’s counsel made the admissions he did and why he stuck with this expert after being given the opportunity to get another.

Click on the link to read the opinion in Laseter v Regan, No. W2013-02105-COA-R3-CV  (Tenn. Ct. App. July 24, 2014).

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