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Discovery of Financial Information from Physician Expert Witnesses

The Pennsylvania Supreme Court recently issued an opinion in "Cooper v. Schoffstall," which may affect physicians who serve as expert witnesses for plaintiffs or defendants in personal injury actions, such as motor vehicle accident litigation and medical liability actions. Physician experts now may be required to reveal financial and other information sought to demonstrate alleged bias, such as their income from serving as an expert witness, if there is a reasonable basis for the contention that they are a “professional expert witness.” This information could then be used at trial to suggest that the expert’s conclusions are influenced by the payments received.

The issue arose in the context of a civil action by a woman injured in a pedestrian- automobile accident. At the request of the defense, she submitted to an independent medical examination (IME) by an orthopedic surgeon, and the defense subsequently identified the orthopedic surgeon as one of its expert witnesses for trial. The plaintiff sought discovery of the expert’s federal form 1099 tax records in connection with defense-related reports, examinations, and depositions. She contended that the expert was a defense professional witness and that she was entitled to information regarding his income from defense work to demonstrate his bias.

The Supreme Court’s opinion outlined the following process and criteria for trial courts to utilize in determining whether to allow discovery of financial and other information from a non-party expert witness to facilitate an inquiry into potential bias.

• Discovery of a non-party expert witness initially is limited to requiring the party offering the expert to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The later may be satisfied by producing a report signed by the expert.
• Supplemental discovery from a non-party expert witness, such as information on expert witness income, is allowed only with the court’s permission for cause shown and is subject to such restrictions as to scope and payment of fees and expenses as determined by the court.
• To establish cause for supplemental discovery related to potential favoritism of a non-party expert witness, a party must make a threshold showing that there are reasonable grounds to believe that the expert may have entered the professional witness category. (The court stated that it had no difficulty in finding that threshold was established in the case at hand, as it was undisputed that the expert had performed 200 or more IMEs in some recent years.)
• Upon a showing of good cause, the trial court may order a deposition by written interrogatories (i.e., a process by which the questions to be asked at the deposition are provided in writing in advance of the deposition.) Through this vehicle and subject to the trial court’s discretion, the party seeking the discovery may inquire as to the following:
• The approximate amount of compensation received and expected in the pending case,
• The character of the expert’s litigation-related activities, and in particular, the approximate percentage devoted to specified types of litigation and/or work on behalf of a particular litigant, class of litigant, attorney, and/or attorney organization,
• The number of examinations, investigations, or inquiries preformed in a given year, for up to the past three years,
• The number of instances in which the expert has provided testimony within the same period,
• The approximate portion of the expert’s overall professional work devoted to litigation-related services,
• The approximate amount of income each year, for up to the past three years, garnered from the performance of such services.
• Upon an appropriate motion and after an assessment of the interrogatory responses, the trial court may order further supplemental discovery, such an oral deposition or production of 1099 tax forms, for cause shown. (By way of example, the court stated that such discovery might be warranted if there is a strong showing that the witness has been evasive or untruthful in the written discovery. However, the court observed that in all likelihood, the written interrogatories will produce sufficient information to support adequate trial preparation and foreclose further discovery.)
• To the degree that the expert will incur expenses connected with the supplemental discovery, the trial court has discretion to allocate costs appropriately. Also, it is expected that any deposition will take place at a convenient time for the expert and at his or her regular place of business. The court may impose confidentiality restrictions to protect the privacy of the expert.
• Subject to the trial judge’s sound discretion regarding the admission of evidence and the scope of cross-examination, a party may use an expert’s responses to the supplemental discovery to suggest to the jury that the expert is a biased professional witness. The party offering the expert may counter with the position that the expert’s opinions are neutral and not influenced by any financial motives and that the expert was chosen for his or her medical and communication skills.

It remains to be seen how these new rules will play out in practice in the trial courts. One possibility is that counsel will aggressively litigate the threshold determination of whether an expert is a professional witness. Another possibility is that counsel will agree that their experts will provide the listed financial information routinely, regardless of whether they are deemed to be professional witnesses. Although physicians who serve as expert witnesses most likely will not welcome the new rules, one possible benefit is that plaintiff-oriented professional witnesses will become less common in medical professional liability actions, as the defense will be able to more effectively discredit their opinions by demonstrating their financial motivation. In any event, it probably makes sense for physicians who serve as expert witnesses to begin keeping more complete records on these matters to ease the burden of production.

These forms are used to report miscellaneous income of at least $600 for non-employee services during a given calendar year.