Today the Court of Appeals of Maryland issued an opinion addressing the extent to which expert witnesses who are retained solely for litigation may be forced to produce documentation of the amounts they earn providing expert witness services.
There are actually two cases, which were consolidated on appeal. The first is Falik v. Hornage, No. 60; the second is Falik v. Holthus, No. 90. They are both Miller & Zois cases.
In each of these unrelated cases, the defense retained the same neurosurgeon as an expert witness. Insurance companies and defense attorneys tend to use the same doctors as expert witnesses over and over. Because these witnesses are being paid, they may have an economic interest in continuing to serve as an expert witness, or they may have economic ties to particular lawyers and insurance companies. Obviously, an economic interest in the litigation may lead the witness to have a bias in favor of their employer, whether conscious or not.
Economic bias of this type is fair game for cross-examination in discovery and at trial. But where the problem comes in is in finding out whether the witness has told the truth. I have had doctors say they do not know what they make in a year for serving as an expert witness, or that they do not know how many times they have been retained by a particular lawyer, law firm, or insurance carrier. Or they will give an answer, but it sounds suspiciously low. I even had one doctor tell me that he did not know what he was being paid in the case he was testifying in, and that he could not tell me who would know.
The way to handle this predicament is to serve a subpoena on the witness seeking the underlying documents, whether they are tax records, 1099 forms, case lists, or the like. In the past this has generally resulted in the witness filing a Motion for Protective Order seeking to avoid the production. In both of these cases, the production (to some extent) was ordered by the trial courts.
Without getting into the minutiae of the documents sought in the cases, it is pretty easy to summarize the Court of Appeals’ holding. Documents relevant to a retained expert witness’s economic interest are a proper subject of document discovery. Trial courts should carefully control the production, as to the relevant time period, and as to the scope of the material sought. Additionally, where this kind of material is ordered to be produced, trial courts should enter a confidentiality order protecting the material from re-disclosure. This ruling applies to “professional witnesses”, whom the court defined as physicians who are “paid to testify about someone who is not that physician’s patient under treatment….’
I think what the Court of Appeals is really trying to say here is that we want our juries to have the information they need to fairly assess the credibility of the witnesses presented to them. If a retained expert witness has a bias because of an economic interest in testifying for one side or the other, documentation of that bias is subject to production in pre-trial discovery, and may be admissible in evidence at trial. Lawyers will no longer be forced to just accept the witness’s word. We will have recourse to the source documents to verify the answers we receive.
Hopefully, now that the Court of Appeals has spoken, we will see less time-consuming motions practice on this issue.