Developing and Using Financial Information to Discredit Defense Experts —


Practical Tips and Considerations by Dennis F. O’Brien


Dennis F. O’Brien (Foard, Gisriel & O’Brien, Towson) received his J.D. from the University of Baltimore School of Law. He is a member of MTLA’s President’s Club as a Founder and is the Editor In-Chief of Trial Reporter. He also serves as a member of the Legislative Committee and is Co-chair of the 2001 MTLA Awards Committee. Mr. O’Brien is a member of the Baltimore County and Maryland State Bar Associations and ATLA. His practice concentrates in serious personal injury, products liability, medical malpractice and appellate work.


Introduction


It has become almost routine for in- surance carriers and defense counsel to ask for a medical exam of your client, com- monly misnamed an “Independent Medical Exam” or IME. The practitio- ner facing the defense doctor in court has only a few tools available to attack the predictably negative opinions espoused by those physicians. While tempting, attack- ing the opinion medically is challenging and may not be understood by the trier of fact. Many experienced trial lawyers have concluded that exposing the finan- cial ties between these insurance company advocates and the carriers damages or de- stroys the credibility of otherwise well-credentialed physicians. This article will address some methods for obtaining and using the financial information nec- essary to successfully mount an attack.


The Law


In 1998, the Court of Appeals sanc- tioned the use of financial data regarding an expert’s forensic earnings to establish bias or attack credibility. Wrobleski v. de Lara, 353 Md. 509, 727 A.2d 930 (1999). Following this Article is a sample Notice to Take Deposition Duces Tecum, which, when served with a subpoena command- ing the production of the documents, will permit the Plaintiff ’s counsel to obtain this valuable information.


Practical Tips and Considerations for Developing the Evidence A trial lawyer preparing to develop fi- nancial information for this kind of attack (as well as any other bias information) should assume there will be a fight and an attempt to obscure and obfuscate the material sought. The following tips will help minimize the mischief and secure the production of the material: Never agree to an exam by an expert out of the jurisdiction (beyond the sub- poena power) of your trial court. Require the defense to obtain an Order from the court permitting such an exam and ask the court to impose, as a condition, that


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the physician will agree to be subject to a subpoena or document request. Use existing source material to obtain data, for example: the MTLA Deposi- tion Bank, MTLA List Serve, or other deposition bank services. Do not simply notice the deposition.


Instead, serve the expert with the sub- poena at least thirty (30) days before the deposition. Send a letter (see sample following this


article) advising the expert of the sub- poena, what records you want and that you will not pay for professional time at the deposition while records are searched. Rather, ask for and expect the records to be available at the beginning of the depo- sition.


Be prepared for arguments or testi- mony that the expert either does not know his billing procedures or that it is done by some other entity. Do not accept “I don’t know” as an If expert persists, ask, “who


answer. would know?”


Depose the expert and obtain the fi- nancial data. Do not agree to confidentiality of the information.


Ask about any differences in billing be-


tween patient care, insurance exams, etc., and whether insurance carriers are given reduced rates for volume. Insist on a comparison of income de-


rived from forensic work vs. treatment/ surgery.


Using the Information at Trial. Once, while cross-examining a well-


known defense doctor before a jury, he asked me, in an exaggerated tone, whether I was going to ask him any questions re- garding his opinions. My response was, “not likely”. The jury returned a good verdict that they attributed to their belief that the “good doctor” was a hired gun. Cross-examination with this financial data can help the practitioner expose these doctors as paid witnesses who testify as expected for insurance carriers. Establish- ing that Dr. X made several hundred


Trial Reporter


thousand dollars testifying for defendants in personal injury cases can go a long way toward discrediting him or her. The most effective method is to spend


ten to twenty minutes on cross having the expert admit to the amount of time and money spent and received from doing the exams and adjunct services (depositions, trials), the percentage of the practice time spent on those activities, and the percent- age of the income derived versus total income. Equally effective is to establish the monetary ties between the expert and his professional associations and a particu- lar carrier (if permissible), defense attorney or firm. Also effective is catching the ex- pert lying or minimizing their income, by using other sources to show the answers you got were inconsistent with prior tes- timony. If done properly, the expert’s credibil- ity can be seriously damaged without venturing into the expert’s field, where the expert will be far more comfortable and able to handle cross, or the fact finder will not understand or appreciate the points scored. Most jurors can understand why Dr. X might be inclined to be favorable to the defense when he earns $300,000.00 or more working for the defense.


Sauce for the Goose…


expert’s financial ties can lead to a similar attack in response.


A word of caution: An attack on the Occasionally the


Plaintiff ’s expert or treating doctor may be subject to a similar attack. One must weigh the benefits of the attack against the likelihood of a responsive strike.


Conclusion


Exposing the financial bias of com- monly used experts can carry the day during trial. However, these experts and the counsel who retain them are often wise to the game and will do almost anything to hide the information. Well-conceived discovery and relentless pursuit will yield the ammunition necessary to successfully demonstrate to a jury that these witnesses should not be believed.


Spring 2001


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