Miller & Zois, Attorneys at Law Home
Over $100 Million
in Settlements and Verdicts
Contact Us Now For a Free Consultation
Motion to Compel Expert Financials
Below is a sample motion to compel an expert's financial records to determine how much of his income is derived from forensic work.
We do not attempt to get financial records on every expert slated to testify against us at trial. But some defense experts claim they do not make 20% of their income from testifying who clearly are making far more. (Plaintiffs' lawyers have these same experts, but we try to steer clear of them.)
The reality is that the law in Maryland and most states is that the experts cannot force us to take them at their word for how much money they make doing forensic work. We are entitled to the documents. Defense lawyers often think they can just ignore this issue and tell their experts they can ignore it. So we are often forced to file a motion to compel like this one seeking personal financial information and a variety of information on many other cases in which the doctor has served as an expert witness.
Sample Motion to Compel Financial RecordsANNE M. EVANS, Individually and as Personal Representative of the Estate of Dorothy M. Monroe et al.
IN THE CIRCUIT COURT FOR BALTIMORE CITY
Plaintiffs,
v.
LESTER LEWIS, M.D., et al.
Case No. 03-C-15-008962 MM
Defendants.
Plaintiffs Anne M. Evans, Individually and as Personal Representative of the Estate of Dorothy Monroe, Mary Keenan, and Henry W. Monroe Jr., by and through their attorneys Miller & Zois, LLC, hereby moves this Court to compel Defense expert Paul Taylor, M.D. to produce his 2020, 2021, and 2022 federal income tax returns and 1099 forms, and in support thereof states as follows:
Plaintiffs incorporate by reference herein their Motion to Strike Paul Taylor, M.D., as a witness in this case, which is being filed contemporaneously with this motion.
On September 12, 2023, Defense expert Paul Taylor appeared for his deposition. The Notices of Deposition (July 21, 2023, and August 4, 2023) required Dr. Taylor to produce financial documents. Dr. Taylor canceled the August 4, 2023, deposition at the last minute and rescheduled for September 12, 2023. Before Dr. Taylor's deposition, defense counsel contacted Plaintiffs' counsel via email and objected to Dr. Taylor producing his income tax records and unredacted 1099 forms.
After several emails between counsel, the parties could not agree regarding the documents Dr. Taylor was required to produce, and the deposition went forward. The plaintiffs' counsel agreed to maintain confidentiality over any income documents that Dr. Taylor actually produced. During the deposition, Dr. Taylor produced redacted 1099 forms wherein the payor names were erased from the forms, preventing the Plaintiffs from obtaining the identity of the person and entities who paid Dr. Taylor monies to testify as a professional witness in medical malpractice cases. Dr. Taylor refused to produce his income tax records for 2019, 2020, 2021, and 2022. Absent the income tax records and unredacted 1099 forms, the Plaintiffs cannot adequately cross-examine Dr. Taylor and challenge his ability to be qualified as an expert witness under C. J. P. 3-2A-04(b).
WHEREFORE: Plaintiffs respectfully requests this Honorable Court grant Plaintiffs' Motion to Compel Dr. Taylor to produce his federal income tax returns and unredacted 1099 forms for the years 2019, 2020, 2021, and 2022. The Plaintiffs agree to abide by any confidentially provisions about these records imposed by the court under Falik v Hornage 413 Md. 163 (2010).
Respectfully submitted,
Miller & Zois, LLC
________________________
Rodney M. Gaston
Justin P. Zuber
1 South Street, Suite 2450
Baltimore, Maryland 21202
T: (410) 553-6000
F: (844) 712-5151
Attorney for Plaintiffs
I, Justin P. Zuber, hereby certify that I made good-faith attempts to resolve the pending discovery dispute with defense counsel Daniel Christie via numerous emails in the weeks preceding Dr. Taylor's September 12, 2023 deposition and that we were able to agree on a confidentiality provision for the records to be produced by Dr. Taylor; however, we were unable to agree on the documents Dr. Taylor was required to produce at his deposition and the parties are unable to resolve this discovery.
___________________________
Justin P. Zuber
Issues When Subpoenaing Financial Records from an Expert
A motion to compel personal financial records from an expert witness involves various legal, ethical, and procedural issues. Expert and lawyers really lose their minds over efforts to obtain financial records. But guess what? When you are in litigation, you lose a lot of privacy. At least the experts choose to be in the litigation. You don't get to make a choice when you are hurt or lose a loved one.
Why allow expert financial records into litigation in the first place? When one party seeks to obtain the personal financial records of an expert witness, it is often under the theory that such records may reveal biases, financial interests, or other motivations that could affect the expert's testimony. A jury needs to know if an expert is bought and paid for. Here are some of the issues judges wrestle with in these cases.
- Relevance: The primary issue is whether the financial records are relevant to the case. To compel discovery, the requesting party must demonstrate that the information sought is relevant to the claims or defenses in the case or will likely lead to the discovery of admissible evidence.
- Privacy Concerns: The expert witness will likely raise privacy objections, emphasizing that their financial information is sensitive and confidential. Again, it is all of those things. But if you do not like the rules, you do not need to be an expert witness. There are very different rules for treating doctors than hired gun experts.
- Proportional to the Needs of the Case: Modern discovery rules, like the Federal Rules of Civil Procedure Rule 26(b)(1), emphasize that discovery must be proportional to the needs of the case. Obtaining exhaustive financial records might be deemed disproportionate if less intrusive means could satisfy the purpose of the discovery.
- Scope of the Request: Determining the scope of the financial records being sought is crucial. Are they limited to payments made by the party retaining the expert, or do they extend to all of the expert's financial dealings? Narrowing the scope makes it easier for a judge to buy into your request.
- Potential for Harassment: The court will consider whether the motion to compel is a genuine effort to discover relevant information or whether it is more of a tactic to harass or intimidate the expert witness.
- Bias and Financial Interest: The party seeking the records will argue - often with strong evidence - that this witness makes a living testifying in general and for that defendant in particular. Of course, this reveals potential bias or a financial interest that could make the expert's testimony less credible.
- Precedent: The court will often look at precedent — how other courts have ruled on similar issues — to determine whether compelling the information is appropriate. In Maryland, Falik is the key case.
- Work-Product Doctrine: Sometimes, an argument is made that certain financial arrangements between an attorney and an expert witness are protected by the work-product doctrine, especially if the details of the arrangement might reveal the attorney's strategy or thought process.
- Expert Witness Protections: Some jurisdictions may have special rules or protections for expert witnesses that limit the scope of permissible discovery. Again, there are different less invasive rules for treating doctors are opposed to hired experts.
- Burden of Production: Courts will often weigh the burden of producing the documents against the need for them. If producing the records is particularly demanding or complicated, a court will be less inclined to grant the motion. Plaintiffs' lawyers need to make it as easy as possible on the expert to produce the records.
- Alternative Means of Discovery: Before resorting to compelling personal financial records, the court might consider whether there are other, less intrusive means to get the needed information, such as deposing the expert about their financial ties or looking at prior testimony or reports. But the problem is, you do not want to take the expert at their word. You want the documents to back it up.
- Protective Orders: Even if a court allows discovery of financial records, it might issue a protective order that limits who can see the records and how they can be used to protect the expert's privacy.
When considering a motion to compel personal financial records from an expert witness, the court will balance the need for discovery against potential intrusiveness and privacy concerns. Each jurisdiction and individual judge may have their own approach, so it's crucial to be familiar with local rules and case law when pursuing or opposing such a motion.
More Thoughts on Maryland Law
The case referenced in the motion, Falik v. Hornage, is a Miller & Zois case we won on appeal. Another critical case is Wrobleski v. de Lara, 353 Md. 509 (1999). The issue before the Maryland Court of Appeals was the propriety of the cross-examination of an expert witness at trial as to the amount the expert had earned from forensic work. You will not get this type of discovery from a court if you cannot use it.
The Maryland high court found that an inquiry about whether a witness earned a significant amount of income from forensic work and, thus, a "professional witness", is permitted. If so, the inquiry can expand to the amount of income derived from such forensic services and the approximate portion of the expert's total income devoted to such services. The issue in Wrobleski did not involve the discovery of the expert's business, financial, and tax records; however, the Court, anticipating such circumstances, held:
[W]e 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, and not permitted to expand into an unnecessary exposure of matters and data that are personal to the witness and have no real relevance to the credibility of their testimony.
What Falik did was crystalize the parameters of where that line should be drawn between "wholesale rummaging" and the search for legitimate evidence of the expert's financial bias.
More Malpractice Trial Preparation Materials- More Malpractice Related Forms and Motions
- Sample Motions (other sample motions)
- Another Motion to Compel (insufficient discovery)
