Our lawyers have long believed that professional expert witnesses’ financial information, including their tax returns, may be discoverable and admissible for the purpose of showing potential bias. Yesterday, the Alaska Supreme Court joined the list of jurisdictions, including now Maryland, that agree with us.
Noffke v. Perez
Noffke v. Perez is a car accident case. A wife and husband were awarded $54,000 and $24,000, by an Anchorage, Alaska jury. On appeal to the Alaska Supreme Court, the defendant claimed that it was an error for the trial judge to require her expert witness to produce income tax records. Reading between the lines, it seems that after a motion to compel the records was sought and granted, the defendant’s expert did what many hired medical experts do after an order to produce their records: they refuse to testify.
The Alaska Supreme Court found that there might be a “plausible argument that the witness generates such a significant portion of his or her income from a particular side or particularly attorney that the expert’s impartiality can reasonably be questioned” making this information discoverable and admissible (emphasis added with joy).
Why Expert Bias Matters So Much
The problem I have is that there are a number of doctors who are “Med Mutual doctors” or “State Farm doctors,” the folks that these insurance companies turn to when they need a doctor who is willing to go out on a limb to take a tough position. I do not believe I am being a cynic. This is just reality. To be willing to take this quantum leap from objective doctor to advocate doctor, these experts usually want to be well compensated. To be fair, this happens to some plaintiffs’ experts too, but I think this happens to a lesser extent. If for no other reason than the insurance companies have more of a market share than individual plaintiffs’ lawyers, increasing their leverage over experts. Our law firm has never called an expert to testify at trial who was personally financially beholden to us – insurance companies do it all of the time. (If I’m wrong about this, defense lawyers should join hands with me on this issue.)
Accordingly, it is fair game to question how much money they have made from (1) legal related work generally, (2) from a specific lawyer, law firm or company, and (3) how much money the expert makes overall. Why does the expert’s total income matter? Because without that information, it is easy for an expert to claim that, while he might make $200,000 a year doing legal work, it is a small portion of his income. To put that in a fair context, the jury should know just what that portion is.
Unfortunately for these plaintiffs and their personal injury lawyer, Alaska Association of Trial Lawyer President, Michaela Kelly Canterbury, this case was reversed, but on other grounds (excluding certain medical exhibits and failure to give a comparative negligence instruction).