Monday, March 23, 2015

Extent to Which Expert Witness May be Cross-Examined for Bias Circumscribed by Pennsylvania Superior Court

In Flenke v. Huntington, 2015 Pa. Super. 50, 467 MDA 2014 (March 17, 2015 Stabile, Bowes, Ott J.J.)(Op. by Stabile, J.), the Pennsylvania Superior Court ruled that, while e expert witnesses may be impeached for bias, including frequent work for the same side in litigation, including for insurance carriers, there are limits to such cross-examination.

This case arose out of a motor vehicle accident.  The specific evidentiary issues in this matter centered around the Plaintiff's cross-examination of the defense medical expert.

Under the well-established rule of law that holds that a witness cannot be cross-examined on collateral matters, see J.S. v. Whetzel, 860 A.2d 1112, 1120 (Pa.Super. 2004), the court in Flenke noted that even bias evidence can become too intrusive and collateral. 

In this matter, as is becoming more and more frequent in civil litigation matters ever since the Cooper v. Schoffstall and Feldman v. Ide decisions set down the parameters for gathering discovery on an expert's litigation-related activity and compensation, the jury heard, and plaintiff hammered home during closing argument, the income and litigation-activity bias evidence concerning the defendant’s expert. 

On appeal, the Plaintiff was challenging the trial court's limitations on the use of this type of evidence at trial.  The Superior Court found that the additional income testimony that was excluded, even if error, was cumulative under Pa.R.E. 403 and was, therefore, harmless in the end. 
The Superior court more specifically found that detailed review of the expert’s fifty most recent reports involving other persons would have introduced collateral issues into the case.  As such, this evidence was found to have been properly excluded by the trial court.

The Superior Court also ruled that evidence of the expert’s work for defendant’s "insurance company" was properly excluded as it would have introduced the impermissible topic of insurance into the case. 

In the end, the Superior Court affirmed the trial court's denial of the Plaintiff's request for a new trial.

Anyone wishing to review this notable opinion pertaining to the cross-examination of experts at trial on the issue of bias may click this LINK.

I send thanks to Attorney James Beck of the Philadelphia office of Reed Smith for bringing this case to my attention.  I highly recommend that you check out Attorney Beck's award-winning and nationally recognized blog, the Drug and Device Law Blog, which can be accessed at this LINK.


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