IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND

MARY RUSSELL - Plaintiff

v

MARY ANN CRUISE - Defendant

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         CASE NO. 02-C-04-098330
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RESPONSE TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER AND PLAINTIFF’S REQUEST FOR ORDER FROM COURT TO PRODUCE DOCUMENTS

     Plaintiffs, Mary Russell and Carol Russell, by and through their attorneys, Ronald V. Miller, Jr, Laura G. Zois, and Miller & Zois, LLC, pursuant to the Maryland Rules of Procedure, 2-510(f), responds to the Defendant’s Motion for Protective Order and requests that this Court order the production of such documents and in support thereof states as follows:

I. INTRODUCTION AND FACTS

      Defendant’s motion is the latest chapter in the reoccurring saga of Dr. Kevin Elbon’s (“Dr. Elbon”) financial records. (Note to readers on the web: we have changed the doctor's name.) The names of the lawyers and the judges change but Dr. Elbon remains the constant. Yet the outcome is always the same: Dr. Elbon is required to produce financial records if he wishes to testify. After such an order is given or a request is made by counsel for which no response is filed, Dr. Elbon promptly withdraws from the case, never producing the records.
      Dr. Elbon has been designated in the above-referenced case to testify as an expert witness for the Defendant. Plaintiffs have requested that Dr. Elbon provide information regarding his income derived from participating as an expert witness at the request of an attorney and not as a treating doctor. Specifically, Plaintiffs have requested that Dr. Elbon produce the 1099s received from law firms or insurance companies and his tax returns for the last five (5) years.
      As this Court is most certainly aware, Dr. Elbon is a frequent flyer on the defense expert circuit. Clearly, as set forth below, Dr. Elbon is professional witness who is hired by a defense attorneys to render opinions on a regular and frequent basis. For good reason: Dr. Elbon is an affable, qualified expert. Insurance companies, particularly State Farm’s in-house counsel, are so confident in Dr. Elbon they often feel free, as in this case, to designate Dr. Elbon before he has seen a single medical record.
      Although Plaintiffs have only Dr. Elbon’s word without the benefit of any supporting documentation on the income and time he spends on forensic work, his own testimony makes clear he makes significant income and expends a great deal of time on forensic cases. On average, Dr. Elbon claims to conduct six to seven examinations per week for forensic purposes. (See Exhibit A attached hereto, Deposition of Dr. Elbon, June 17, 2004, page 66). Dr. Elbon admits that outside of worker’s compensation, State Farm, the carrier in the instant case, is the insurance company providing him with the most forensic income. Id. at p. 72. Dr. Elbon also does work for Allstate, Nationwide, Erie, Liberty Mutual, and Progressive. Id. at pp.72-74. In addition to doing physical examinations in his office, he also conducts about 50 records reviews a year. See Exhibit B, Deposition of Dr. Kevin Elbon, March 8, 2004, p. 24. He estimates that his charges for forensic work are “somewhere around $120,000.00.” Id. p. 26. Dr. Elbon testifies by way of deposition two to three times a month and appears live in court once or twice a year and he charges $1,400.00 for the deposition fee. (See Exhibit B page 29.)
      But Dr. Elbon’s philosophy since 2000 when he last produced financial records has been the same. If he is required to produce any financial records to support his testimony, he withdraws from the case. He refuses all efforts to confirm his testimony as the amount of his earnings in general or his earning from specific insurance companies. In other words, Dr. Elbon will give you the numbers but refuses to provide the underlying documents to support his testimony. So when faced with an order that he provide support for his oral statements, he simply refuses to provide testimony. Dr. Elbon has been required to produce financial records in the past by other courts in the State of Maryland. See e.g. attached hereto, Exhibit C, an Order from Baltimore County Circuit Court (Plaintiff has used verbatim the Court’s Order in Exhibit C in the attached proposed order). Based on information and belief, Dr. Elbon refused to testify after this and other similar orders.1
      Last year, Plaintiff’s counsel had a similar issue with Dr. Elbon in a case pending in Baltimore County. After being served a subpoena for his financial records, Dr. Elbon promptly refused to testify. In the instant case, Plaintiff properly served Dr. Elbon, a nonparty, with a subpoena duces tecum and requested that he provide information adequate to enable proper cross-examination by the Plaintiff as to what portion of his income is derived from participating as a professional expert. Defendant’s attorney then filed a Motion for Protective Order.2

II. MARYLAND CASE LAW

      The seminal case regarding the disclosure of financial information for expert witnesses is the case of Wrobleski vs. de Lara, 353 Md. 509 (1998). Essentially, Wrobleski recognizes the need for balance between the wide latitude that must be given to a cross-examiner in his or her exploration of a witness’s bias and protection from harassment and embarrassment of the potential witness. Ultimately, the holding in Wrobleski is as follows:

It is generally appropriate for a party to inquire whether a witness offered as an expert in a particular field earns a significant portion or amount of income from applying that expertise in a forensic setting and is thus in the nature of a “professional witness.” If there is a reasonable basis for a conclusion that a witness may be a “professional witness” the party may inquire both into the amount of income earned in the recent past from services as an expert witness and into the approximate portion of the witness’s total income derived from such services. The trier of fact may find either or both to be significant in determining the witness’s credibility.
Id. at 527. The Court went on to add two caveats, the first being “we do not intend by our decision today to authorize the harassment of expert witnesses through a wholesale rummaging of their personal and financial records under the guise of seeking impeachment evidence. The allowance of the permitted inquiry, both at the discovery and trial stages, should be tightly controlled by the trial court and limited to its purpose . . .” Id.

      In the Wrobleski decision, the Maryland Court of Appeals characterized the “professional hired gun” as follows:
[A person] who earns a significant portion of his or her livelihood from testifying and, rather than having a tie to a specific party or attorney, may have a general economic interest in producing favorable results for the employer of the moment.

Id. at 525. The Court also states that in dealing with experts of this type, traditional cross examination often is an ineffective tool:

Exposure of financial interest bias may sometimes be the most effective challenge that can be made to an expert’s testimony, especially that of a witness skilled in the art of testifying. As Professor Graham points out, substantive cross-examination is often very difficult. With their extensive litigation experience, “professional witnesses” are “proficient in the art of expert witness advocacy” and “at ease with the material and capable of making fine line distinctions between the current situation and those raised in the questions of examining counsel.” The cross-examiner may well be concerned that the jury will view extensive or sharp questioning about the details as unnecessarily quibbling.
Id. In this regard, the Court of Special Appeals’ opinion in Wrobleski (affirmed by the Court of Appeals as set forth above) underscored why this type of financial information is necessary in cross-examining a professional witness:
One way of effectively combating the testimony of a professional expert is to show that the witness is biased. Like most business persons, many expert witnesses strive to keep their customers happy, especially if they have been well-compensated for their previous services. Accordingly, if an expert has made a large amount of money in the past testifying in legal proceedings, a jury might legitimately infer that the expert would want the flow of income to continue by testifying in a way that will produce a satisfied customer – thus increasing the likelihood that his old customers and future ones will continue to seek the services.

Wrobleski v. DeLara, 121 Md. App. 181, 708 A.2d 1086, 1092 (1998).

     The Court of Appeals in its decision reviewed its concern that a request for financial data not to turn into a tool to embarrass the witness or invade unnecessarily their legitimate privacy. Id. at 526. In order to balance this concern with the need for specific financial information for certain experts, the Court in Wrobleski found that Plaintiff must demonstrate that the witness “earns a significant portion or amount of income” from testifying as an expert. If that threshold is met, then the party is entitled to inquire both into the amount of income earned from expert witness services and the approximate portion of the witness’ total income derived from such services.

We believe that it is generally appropriate for a party to inquire whether a witness offered as an expert in a particular field earns a significant portion or amount of income from applying that expertise in a forensic setting and is thus in the nature of a “professional witness.” If there is a reasonable basis for a conclusion that the witness may be a “professional witness,” the party may inquire both into the amount of income earned in the recent past from services as an expert witness and into the approximate portion of the witness’ total income derived from such services.

Id. This is the exact information Plaintiffs seek in this case.

ARGUMENT

     Defendant’s contention that Plaintiff’s request is merely to harass and embarrass the witness is not supported in logic, reason, or Maryland law. There has never been any question that plaintiffs are permitted to ask questions about his financial records. Dr. Elbon has answered, without objection, questions on his financial records in the past. The problem Plaintiffs have is that all they have is Dr. Elbon’s word as to the percentage of his earning he derives from expert- related work. Plaintiffs find it curious, to say the least, that Dr. Elbon has continually refused to back up his testimony by providing his underlying financial records, going to the extreme of withdrawing from the case. Again, last year Dr. Elbon did exactly this last year in another case in which Plaintiffs’ counsel also has with these same defense lawyers, leaving State Farm without an expert.
      Plaintiff’s common sense notion that it is entitled to Dr. Elbon’s financial information is supported by the Maryland case law articulated above. The test for inquiry articulated in Wrobleski was whether the witness “earns a significant portion or amount of income” from testifying as an expert. As set forth above, there can be no dispute that Dr. Elbon’s admitted six figure income from forensic work is significant. Defendant relies on Wrobleski, again, a case that required a professional witness to provide the evidence being sought here, by citing the court’s statement that “we do not intend by our decision today to authorize the harassment of expert witnesses through a wholesale rummaging of their personal and financial records under the guise of seeking impeachment evidence.” Id. at 526. But the Wrobleski court clearly ruled that the evidence being sought here is both discoverable and admissible. Accordingly, it is unfathomable that the Court considered “wholesale rummaging” the very information it ordered discoverable and admissible.

CONCLUSION

      Dr. Elbon should be compelled to disclose the amount he earns from providing expert witness services on behalf of insurance companies and defense attorneys and the percentage of his total income derived from providing such services. He clearly derives a significant portion or amount of income from serving as an expert witness for the defense. Dr. Elbon testifies at trial by way of videotape or in court approximately 30 times per year. He is an accomplished witness. He has derived substantial earnings from State Farm Insurance, which only writes liability coverage and which is one of several customers. The services that he will be providing on behalf of the defense in this case are consistent with services he has provided in many other cases on behalf of a State Farm defendant. Accordingly, Plaintiffs request the opportunity to obtain the information necessary to verify Dr. Elbon’s prior statements and to cross-examine him at trial.

For the foregoing reasons, Plaintiffs respectfully request that this Honorable Court enter an order denying Defendant’s Motion for Protective Order with regard to Dr. Elbon and order Dr. Elbon to produce the requested materials.


                                                                                        Respectfully submitted,
                                                                                        MILLER & ZOIS, LLC


                                                                                        Laura G. Zois
                                                                                        Empire Towers, Suite 615
                                                                                        7310 Ritchie Highway
                                                                                        Glen Burnie, Maryland 21061
                                                                                        (410)553-6000, (410)760-8922 (Fax)
                                                                                        Attorney for Plaintiffs

Certificate of Service

I hereby certify that a copy of the foregoing Response to Defendant’s Motion for Protective Order and Plaintiff’s Request for Order from Court to Produce Documents was mailed by first-class, postage prepaid, U.S. Mail, and by fax on this 7th day of October 2005, to:

Kyle Blakely, Esq.
H. Barrett Peterson, Jr. & Associates
One West Pennsylvania Avenue, Suite 500
Towson, Maryland 21204
Attorney for Defendants

1. It is worth pointing out this is just the information Plaintiff’s counsel was able to quickly obtain on four days notice to file a immediately response to Defendant’s motion. Counsel has learned of other orders but did not receive the documents before the filing of this motion. Certainly, State Farm has a number of these orders.

2. As set forth in a companion motion, defendant’s counsel does not - in this case at least - claim to be Plaintiff’s attorney and does not have standing to oppose Plaintiff’s subpoena to a private “independent” party.

 

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