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Why It Matters How Much Money Your Retained Expert Has Been Paid In Prior Unrelated Cases
December 13, 2020
Robert B. "Chip" Delano, Jr.
Sands Anderson PC
Richmond, Virginia
If a medical expert has been compensated by an attorney, their law firm, or a party’s liability insurance company multiple times over the past few years to provide testimony, be ready for opposing counsel to seek discovery on those issues and to present evidence of those matters at trial. Opposing counsel may use this information to their advantage at trial to show the potential for bias by cross-examining the expert on his/her relationship with the liability insurance carrier or the plaintiff or defense counsel’s law firm.
In the motor vehicle accident case of Graves v. Shoemaker, which was recently decided by Virginia’s highest appellate court, the Supreme Court of Virginia, the plaintiff’s counsel deposed the orthopedic surgeon hired for the defense in preparation for trial. In the deposition, the doctor testified that he had been hired by the defense attorney or his law firm to testify 30 to 35 times over the past 10 to 12 years and that on only one of those occasions did he testify on behalf of a plaintiff. The doctor also acknowledged that State Farm had paid him $793,198.00 for testimony he had provided for other State Farm insureds from 2012 to 2018.
The plaintiff moved in limine for permission to introduce this evidence of the defense expert’s previous relationship with the defense counsel’s law firm and State Farm at trial. After hearing argument, the trial court held that the plaintiff could only introduce evidence that the defense medical expert had testified on behalf of defense counsel’s clients 30 to 35 times in the past. The trial court ruled that the plaintiff would not be permitted to ask the expert about his prior work for State Farm because there was no “direct relationship” between the defense expert and State Farm. On appeal, the Supreme Court of Virginia reversed.
The Supreme Court of Virginia unanimously ruled that the issue of the defense expert’s bias was a consideration for the jury and that the trial court had abused its discretion in precluding the plaintiff from introducing into evidence the extensive work the defendant’s expert had previously done for State Farm and other State Farm insureds.
This decision in Graves v. Shoemaker follows an interesting trend of holdings of the Supreme Court of Virginia in recent cases such as Gross v. Stuart where the Court held that it was permissible and a matter within the trial court’s discretion to permit cross-examination of a retained medical expert with information from the expert’s past disciplinary proceeding.
The lesson to be learned here is that when hiring expert witnesses, attorneys should always follow the Boy Scout motto and “Be Prepared” in their due diligence. Take care to vet the prospective expert as much as time and monies permit because most likely opposing counsel will attempt to use any negative information they can find on the expert to attack the expert’s credibility at trial.