The New York Times has an interesting article about the use of expert witnesses in court cases. Essentially, the article explores the idea that expert witnesses are inherently biased towards the side who retained them.
As a personal injury lawyer (something I’m proud of, by the way) I have quite a bit of experience dealing with expert witnesses. My experience is that there is some truth to what the article says, but it isn’t fair to paint every expert witness with the same brush.
In Baltimore injury cases, there are several kinds of expert witnesses who may come into play. Most often you see medical experts, as well as economists, life-care planners, vocational rehabilitation experts, and car crash reconstructionists.
As far as medical expert witnesses go, on the plaintiff’s side normally the expert presented is one of the treating physicians. Generally these are not “hired gun” experts hired specifically for litigation, but simply the treating doctor who testifies about the injuries sustained, the medical treatment, and the reasonableness of the medical bills.
On the defense side, the reverse is true. Normally we see the “usual suspects”; doctors who are repeatedly retained as witnesses by the same insurance companies and defense firms. Often these doctors are designated as expert witnesses by the defense before they even know anything about the case, the injuries claimed, or the plaintiff. Could it be that the insurance companies have some idea what these doctors will say? Common sense tells us that if they were not providing the opinions that the insurance companies want, there would be very little repeat business. In Maryland injury cases, the defense has no right to a medical examination of a plaintiff. Such an examination can only be obtained by court order, or if both sides agree.
At Miller & Zois, we make it a point to aggressively protect our clients’ interests during this process. A forced medical examination is one of the greatest invasions of privacy imaginable. We do our best to make sure that this process is conducted in a way that is fair. Sometimes this means forcing the defense to obtain a court order to examine the plaintiff if we cannot arrange acceptable terms through negotiation. We also go after these witnesses aggressively by obtaining the information needed to conduct an effective cross-examination. Often this means subpoenaing financial information to show that these witnesses make a lot of money testifying for insurance companies, so we can show the jury the financial interest these doctors have in providing opinions that are favorable to the insurance companies that hire them.
All plaintiff’s lawyers should review their practices regarding defense medical exams. Our Attorney Help Center has examples of sample correspondence and pleadings directed at this issue.