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."
