Expert witnesses play a key role in the outcome of injury cases, from car accident lawsuits to medical malpractice litigation to product liability claims. In many cases, a sustained opinion from an expert is required to establish plaintiff’s assertions before the case even makes it to the trial phase.
For this reason, it’s imperative for personal injury attorneys to explore any issues that may challenge the credibility of an expert witness testifying for the defense.
One way that this can be done is by analyzing the witness’s bias for the defense. In many cases, defendant includes an insurance company. These are large corporations and they routinely will use the same witnesses or the same witness providers time and again. This means a substantial portion of these witnesses’ income is derived from insurance company testimony.
What’s more, some of these witnesses are paid on a contingency fee basis, meaning they are not compensated unless the side for which they are testifying wins. When the expert witness has a financial stake in how the case turns out, this can reveal a major bias that, if exposed, can lessen the impact of his or her testimony.
In the recent case of Ray v. Draeger, plaintiff was injured in an automobile accident. After filing a lawsuit against at-fault driver (represented by his auto insurance company), plaintiff sought to cross-examine defense expert witness on his insurance industry bias. However, trial court had granted a defense motion earlier in the process that effectively barred such questioning, so the request was denied. However, trial court did allow plaintiffs to question the witness about his financial interest in the “industry” and for “defense attorneys,” while disallowing plaintiffs from questioning witness on the specifics of compensation for this particular case.
That was unfortunate – and, as the Alaska Supreme Court would later rule, erroneous, because this particular witness, an orthopedic surgeon, derived a substantial portion of his income testifying almost exclusively for defendants in personal injury cases, and this defendant insurance company in particular. Some years, 50 percent or more of his $800,000 annual income was from testifying for insurance companies in personal injury cases, with about half of those being for car accidents.
In this case, the surgeon testified that while it was reasonable for plaintiff to seek initial treatment following a low-speed, low-impact rear-end collision, her later treatments of physical therapy were not reasonable.
Jurors ultimately decided plaintiff should be compensated for her initial hospital bills, but not those for her later physical therapy appointments.
Plaintiff appealed, specifically citing trial court’s denial of motion to cross-examine this witness on his bias toward the defense.
State supreme court noted generally, evidence of bias is both relevant and probative, but conceded some courts have found it to be prejudicial if it results in jurors deciding a close case on a basis that’s improper (i.e., whether a party is insured).
Courts can exclude evidence of a defendant’s insurance to avoid this fact. And that’s what happened here, although it had the effect of essentially blocking plaintiff from pointing out the insurance industry bias of the expert witness.
In resolving this issue, the Alaska Supreme Court ruled that such bias should be exposed when the connection is substantial. In such cases, the probative value of that information is more than likely to outweigh the danger of unfair prejudice resulting from jurors knowing defendant is insured.
Ray v. Draeger, July 17, 2015, Alaska Supreme Court
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