Expert Witness Financial Data

Brien Roche

Getting financial data on an expert witness to show a substantial relationship with a party is important.  That substantial relationship may be with an insurance carrier.  It may be with the opposing attorney.  Also it may be with a party to the litigation.  

The idea of getting such information comes from the case of Lombard v. Rohrbaugh, 262 Va. 484 (2001).  That case has been further refined in the case of Graves v. Shoemaker, 299 Va. 357 (2020).  In Graves the court held that the relationship between State Farm and the testifying doctor did not have to be a direct relationship.  It must simply be a substantial relationship.  A substantial relationship is based upon the idea that there is a potential for bias because the witness has a financial interest in the case.  That financial interest arises from the fact that the witness is receiving money on a regular basis from that carrier. The substantial relationship existed even though the doctor was hired by defense counsel not State Farm.

Getting the Expert Witness Financial Data 

There are several things that need to be done in order to get this type of information:

     1.  Issue a subpoena to the witness.  This should be your first and most important vehicle to get information.  If the witness is a medical doctor who has done a defense medical exam, then what you want are:

         a.  All records of any kind related to the engagement of the doctor, the entity the doctor works for and his consulting firm for review of any records or other material related to the plaintiff. 

         b.  All records of any type, including telephone notes, regarding the plaintiff generated by the doctor, the entity the doctor works for or the doctor’s consulting company related to the to the plaintiff.  

         c.  All lists identifying civil suits or workers’ compensation claims wherein the doctor has served as an expert hired either by an insurance carrier, a law firm or otherwise to review records, conduct examinations or testify as to a plaintiff or claimant for the last five (5) years.

Fees

         d.  All records of any kind relating to billing charges, fees and payments including but not limited to 1099s, tax returns, bills, invoices, etc. for the doctor, the entity for which he works or his consulting firm in connection with the review of records, preparation of reports or consultations with any attorneys or insurance company representatives for the last five (5) years.

         e.  All schedules of fees of the doctor for providing expert medical/legal and/or forensic services for the last five (5) years.

         f.  All schedules of fees for physician’s services of the doctor or his consulting firm for his orthopedic practice treating patients.  

Income

         g.  All documents recording the income or revenue received by the doctor, the entity by which he is employed or his consulting firm for medical record reviews, expert medical examinations, preparation of reports, consultations with attorneys or insurance representatives, depositions, testimony and preparation for same for the last five (5) years including but not limited to summaries, lists, 1099s, tax returns, bills and invoices.

         h.  All records of any kind from State Farm Insurance Co. or any of its related entities relating to the billing, charges, fees and payments including but not limited to 1099s, tax returns, bills, invoices and copies of checks in connection with the retention of the doctor to review medical records or conduct medical examinations for the last four (4) years.  

         i.  All records of any kind from the law office of ________________ and its related entities relating to the billing, charges, fees and payments including but not limited to 1099s, tax returns, bills, invoices and copies of checks in connection with the retention of the doctor to review medical records or conduct medical examinations for the last four (4) years.

         j.  Any lectures or presentations that the doctor has given to any agents or adjusters of an insurance company and all records of compensation paid to the doctor for such.  

Expert Witness Financial Data from Other Sources

     2.  Also make sure that the subpoena to the doctor is not only to the doctor but also to the doctor’s consulting firm if he has one.  What many doctors do is they set up a separate consulting firm for their forensic work.

     3.  Issue a subpoena to the insurance carrier for essentially the same information.  This subpoena may be somewhat limited since the carrier can only produce information they have about this doctor.  

     4.  Send the same discovery request as what you sent to the doctor and his consulting firm to the defense.  This means of discovery may also be somewhat limited under the parameters of Rule 4:1 which allows you to use interrogatories, request for documents or depositions to gain facts and opinions held by the expert acquired for trial.  This discovery probably does not fall within that context.  

     5.  If the subpoena is going to a witness who has his own consulting firm, see if you can get the Tax ID number of that consulting firm and also the Tax ID number of the witness’ professional group.  Therefore the subpoena will go more quickly if you have that Tax ID number.  

     6.  When the insurance defense lawyer comes in to argue that the subpoenas should be quashed, argue that the lawyer has no standing because he is not representing the witness.  Also be prepared to argue that the information requested is not beyond the scope of discovery, not only because of the above cases but also because you’re not seeking facts known or opinions held by the expert in anticipation of litigation.  Such facts or opinions held by the expert in anticipation of litigation may be restricted.  

Protective Orders

Sometimes what these witnesses will do is incorporate a request for a Protective Order.  The request is designed to limit the use of the data to this case.  Those motions should be resisted. What the doctor is in effect arguing is that the disclosure of this information outside of the context of this litigation might reveal bias information that could harm the doctor’s expert services business.  It’s not the role of the court to protect the doctor’s expert services business.  If the information is relevant and/or reasonably calculated to lead to relevant evidence and is not unduly burdensome, then it should be granted without qualification.  

Call, or contact us for a free consult. Also for more info on expert witnesses see the Wikipedia pages. Also see the posts on this site dealing with expert witness issues and defense medical examination.