Friday, October 17, 2014

ARTICLE: Parameters of Showing Bias of Expert Witnesses

The below article of mine was recently published in the September 30, 2014 edition of the Pennsylvania Law Weekly and is republished here with permission from American Law Media, the publisher.
 
 
 
Civil Litigation

Parameters of Showing Bias of Expert Witnesses


, The Legal Intelligencer                          
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A recent trend in personal injury matters has involved each litigant turning up the heat in their attempt to gather information to discredit the opposing party's medical expert and expose that witness as biased in favor of the offering party.

Although the lofty recognized purpose of a civil trial is to determine the truth of the claims and defenses presented, in reality, the focus and driving force of civil trials has always been money—depending upon which side you are on, maximizing or minimizing the opposing party's monetary recovery.

With many personal injury trials turning on the battle of the experts, such battles are increasingly commencing in the pretrial discovery stages as parties fight over the extent to which they may discover information on the finances and prior litigation activity of experts.

Standard Expert Discovery

To further the truth-seeking goals of civil litigation trials, the Pennsylvania Rules of Civil Procedure pertaining to pretrial discovery have been developed with the overarching purposes of avoiding any surprises at trial and allowing for a fair trial on the merits. One significant portion of the rules on discovery focuses upon the extent to which a party may discover information pertaining to the opinion and background of an opposing party's expert.

Under Pa.R.C.P. 4003.5, in order to properly prepare for trial, parties are freely permitted to discover the identity of an opposing party's expert, the curriculum vitae or resume of that expert, and the facts and opinions upon which the expert is expected to testify at trial.

In limited circumstances, Rule 4003.5(a)(2) also gives the court the power to order additional discovery pertaining to expert witnesses upon cause shown for the need for such additional information. Such information can include information tending to show that the expert may be biased in favor of the party offering the expert as a witness at trial. With such discovery, an opposing party may attempt to attack the credibility of an opponent's witness as part of the truth-seeking purpose of litigating a trial before a jury.

Supplemental Expert Discovery

In the case of Cooper v. Schoffstall, 905 A.2d 482, 495 (Pa. 2006), the Pennsylvania Supreme Court ruled that, when permitted, the scope of permissible supplemental expert discovery could include written interrogatories directed to the nonparty expert (as opposed to interrogatories addressed to the opposing party) requesting information on such topics as: compensation paid to the expert to participate in the case at hand; the character of the expert's prior litigation-related activities; the percentage of time the expert testifies for one side versus the other; the percentage of the expert's overall work devoted to litigation services; the approximate amount of expert income earned per year; and the number of examinations and depositions completed by the expert annually.

The court in Cooper placed a time limit of three years' worth of information required to be produced. The court also noted that if evasive responses to the interrogatories were produced, the trial court had the discretion to order even more supplemental discovery from the expert, such as tax returns or other financial documents to confirm the expert's litigation-related compensation.

The Cooper decision was more recently applied and followed by the Pennsylvania Superior Court in the case of Feldman v. Ide, 915 A.2d 1208 (Pa. Super. 2007).

Notably, these appellate decisions require that the party seeking supplemental expert discovery must first make a threshold showing to the court that the expert at issue falls within the professional witness category before supplemental expert discovery will be allowed.

A troubling aspect of the Cooper and Feldman decisions is that while they delineate the type of supplemental discovery allowed with respect to the potential bias of an expert witness once there is a threshold showing that the expert witness is a professional witness, neither decision provides concrete guidance on what must be shown to meet that threshold test.

The Cooper decision only vaguely states that the "proponent of 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" offered.

Accordingly, under the Cooper circumlocution, in order to secure a court order allowing the party requesting supplemental expert discovery of detailed information to show at trial that an opponent's expert witness is a biased professional witness, the party seeking such discovery must somehow first figure out a way to establish to the court that the expert is indeed a professional witness. What?

An open issue therefore remains as to what types of evidence are sufficient to meet the required threshold showing that an expert witness is an alleged professional witness such that supplemental discovery into the potential bias of that expert should be allowed.

Professional Witness: 
An Open Issue

In the absence of any appellate decision providing any more concrete guidance on the threshold showing required, the trial court judges have had to utilize the broad discretion afforded to them in deciding the professional witness question.

Unfortunately, there are not many widely reported trial court opinions on this issue. Luzerne County Court of Common Pleas Judge Lesa Gelb spoke of the issue in the case of Mangan v. Erie Insurance Exchange, 2011–CV–06261 (C.P. Luz. Co. 2012), in the slightly different context of the supplemental expert interrogatories being served upon the opposing party as opposed to the nonparty expert witness at issue as authorized in the Cooper case.

Relying on a prior decision in the case of Glushefski v. Sadowski, No. 2009–CV–1189 (C.P. Luz. Co. 2010), by Luzerne County Court of Common Pleas Judge Joseph Van Jura in the context of the supplemental expert interrogatories being served upon the opposing party as opposed to the nonparty expert witness, Gelb, as did Van Jura, ruled that the Cooper analysis should still be followed even though the discovery was not served on the expert.

While the Mangan and Glushefski decisions served to extend the Cooper analysis to apply to supplemental expert interrogatories served upon opposing parties, there still remained an open question as to what the party requesting discovery must first show in terms of the expert being reasonably identified as a professional witness to allow the supplemental expert discovery to be propounded.

Factors to Establish a Professional Witness

In a more recent decision applying the Cooper professional witness standard, Guffey v. Kyriazis, No. 2308-CV-2009 (C.P. Lacka. Co. 2014 Minora, J.), Judge Carmen D. Minora affirmed the decision of the Lackawanna County special trial master for discovery in a motor vehicle accident litigation that allowed a plaintiff to gather discovery on the finances earned and prior litigation involvement of a defense independent medical examiner dating back three years.

In so ruling, Minora followed the standard set forth in Cooper and Feldman and set forth the painstakingly detailed evidence that plaintiffs counsel provided to the court to establish that the defense IME doctor was a professional witness such that supplemental discovery should be allowed.
Accordingly, the Guffey decision can serve as a guide to the type of evidence that can be utilized to show that a defense (or plaintiffs) medical expert is a professional witness such that supplemental discovery on the expert's finances and litigation involvement dating back three years should be permitted.

More specifically, the plaintiff's counsel provided information on the expert's fees per IME or deposition, that the expert derived substantial fees from litigation work, and that the expert had been retained by defense counsel in prior matters. Also produced for the court's review were advertisements by the expert's medical group seeking IME work. Last, but not least, the plaintiff provided to the court copies of answers to Cooper interrogatories from another unrelated matter providing financial information and litigation activity on the same IME doctor as at issue in the Guffey case.

In light of the provision of all of this evidence by the plaintiff in support of its claim that the defense doctor was a professional witness, Minora found that the plaintiff had established reasonable grounds to assert a concern that the IME doctor may have been an expert witness secured by the defendant to provide legal medical material favorable to the defendant. Consequently, the court ruled that the plaintiff's narrowly tailored Cooper interrogatories were warranted and should be answered.

Waiting for Guidance

Until further appellate guidance is produced, each trial court decision handed down in this regard will serve to shed more light on the proper identification of professional expert witnesses so as to allow the discovery of the financial background and litigation practices of such witnesses and support cross-examination on the all-important issue of bias and, therefore, credibility of the witnesses.


Daniel E. Cummins is a partner and civil litigator with the Scranton, Pa., law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.




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