One of the best ways to discredit an opposing party’s expert is to expose the expert’s bias. Revealing an expert’s “positional bias” – whether he or she primarily works for plaintiffs or a certain type of defendant – can have a great impact on the expert’s credibility with the jury. Trial lawyers often impugn the testimony of such experts as “hired guns.” New Jersey’s Appellate Division has recently reiterated the importance of evidence suggesting positional bias, but has nonetheless limited the type of personal financial information that must be disclosed by expert witnesses – striking a balance between the expert’s privacy and the opposing party’s entitlement to relevant evidence.
In In the Matter of Central Orthopedic Assocs. (N.J. App. Div. November 16, 2009), the Appellate Division overturned a trial court order permitting discovery of the income of a physician expert witness. The court rejected the notion that a licensed professional “surrenders all rights of privacy upon providing an expert opinion to a litigant for monetary consideration” and sent the matter back to the trial court with some guidance on how courts should address requests to pry into an expert’s finances. While the court recognized that a party is entitled to know how much its adversary paid for the expert witness it has retained, the court was more cautious in allowing discovery about the expert’s income derived from other sources, including from litigants in other cases.
Before ordering the turnover of an expert’s personal financial information, courts should determine whether there are other less intrusive sources of that information. For example, testimony from the expert admitting that he or she predominantly represents certain parties (plaintiffs or defendants) or companies in a specific industry generally suffices to demonstrate the expert’s bias and eliminates the need to explore more sensitive areas of the expert’s personal life. If an expert denies that he or she predominantly represents one side or a particular client or kind of client, however, and the opposing party can make a preliminary showing otherwise, then more intrusive discovery into the sources of an expert’s income may be warranted.
Courts should rarely, if ever, order disclosure of the actual amount of an expert’s annual income. As the Appellate Division explained, the actual amount of an expert’s income is not particularly relevant. What good does it do to learn that the opposing party’s expert earns $200,000 a year? Instead, the focus should be on what percentage of the expert’s income is derived from providing expert testimony and opinions. The court instructed “it is the percentage of income derived from a particular source that is relevant in showing positional bias, not necessarily the particular amount.” Revealing that 90 percent of an expert’s income is derived from providing testimony to plaintiffs in medical malpractice cases, for example, certainly could suggest positional bias.
To strike the proper balance between allowing the opposing party an opportunity to obtain relevant information and protecting against unnecessary intrusion into an expert’s sensitive personal information, the Appellate Division suggests that courts perform in-camera inspection of the expert’s financial information. The trial judge can then determine whether there is a legitimate basis for a party to argue bias from the information provided. If the judge believes the financial evidence is sufficient to argue bias (i.e., the expert’s various sources of income suggest a leaning toward one side or the other), the court may then order the expert to disclose only the percentage of the expert’s annual income that is derived from rendering the expert services used in the lawsuit. The court allayed another concern by noting that disclosing the information for the court’s in-camera review would not strip the information of its confidential nature.
The court suggested that the following disclosures would moot any more intensive financial discovery of the expert: (i) what percentage of the expert’s income is derived from providing litigation services; and (ii) of that amount, what percentage is derived from representing plaintiffs and defendants. The actual amount of the expert’s income need not be revealed to the opposing party. Of course, in particular cases, disclosure of financial information may be warranted. For example, the expert may have done business or have on-going businesses with the party who has retained him or her, and such relationships and the nature and amount of economic benefits flowing from those relationships may be valid grounds for discovery.
The Central Orthopedic decision allows experts to breathe a small sigh of relief – their annual income, or other personal financial details, generally will not be subject to public disclosure simply because they have provided expert services in litigation. As the court recognized, the opposite conclusion could have had a “chilling effect … on the willingness of professionals to provide services.” Courts will have to continue to define the boundaries of this discovery landscape, balancing access to potentially relevant information with exposure of sensitive personal information. For now, the court has held that serving as an expert does not necessarily render your bank book an open book.
