Getting billing information regarding insurance company experts and consultants is crucial. In Tuttle v. Perry and Berry, 82 S.W. 3d 920 (Ky. 2002), the Court examined the issue of whether the plaintiffs in a medical malpractice action could cross-examine defense expert witnesses as to the amount of fees earned, where evidence of the fees paid to the expert was relevant to the issue of the witness’ potential bias. Last week’s post, An Insurer’s Use of an IME Can Serve as Evidence of Bad Faith Against the Insurer, analyzed Hangarter v. Provident Life and Accident Ins. Co. and Paul Revere Life Ins. Co., 373 F.3d 998 (9th Ct. App. 2004). There, the Court evaluated evidence with regard to the defense’s expert, who had rejected insureds’ claims that they were totally disabled in thirteen out of thirteen cases. In Tuttle, the plaintiffs learned through discovery that one of the defendant’s expert witnesses testifies 85-90% of the time for the defense in medical negligence cases. The defense expert’s rate of compensation was $2,000 per day during trial, $500 for the first hour of deposition and $300 per hour thereafter, and $250 per hour for a case review. The lower Court in Tuttle granted a motion in limine excluding information regarding expert witness compensation, so the plaintiffs appealed.

The Court, naturally, began its analysis with the established principle that relevant evidence is admissible, including facts tending to disprove a defense – such as the bias of a witness:

As a primary responsibility of a jury is to determine the weight of evidence and the credibility of witnesses…declares that the rule does not limit the right of a party to introduce evidence relevant to weight or credibility ‘including evidence of bias, interest or prejudice’.

The Court noted that relevance of evidence is a determination that falls within the discretion of the trial court. The Court then focused on the issue at hand and explained as follows:

In modern litigation, however, it would be difficult to overstate the importance of expert witnesses. Some of the most important decisions of the Supreme Court of the United States in recent years have dealt with the admissibility of expert opinion in an effort to assure its reliability, and this Court has devoted considerable attention to issues relating to expert witnesses. As demonstrated by the facts presented here, expert witnesses are often compensated handsomely and it is widely believed that they may be expected to express opinions that favor the party who engaged them and who pays their fees.

As in Hangarter, the Tuttle Court thought it was important to permit discovery regarding any information that might show the bias of an expert witness.

Exposure of potential bias based on self-interest is often attempted through cross-examination directed at how much the witness is being paid for his or her services in the case at bar, the frequency with which the witness testified in similar kinds of cases, whether the witness customarily appears for a particular type of party (usually plaintiff or defendant), whether the witness is frequently employed by a particular party of attorney and, if so, how much income the witness derives from that employment, and, as in this case, the amount or the percentage of the witness’ total income that is derived from lawyer referrals or testimony in lawsuits. Some forms of inquiry seek to uncover specific and enduring relationship between the witness and the party or attorney, from which a direct bias may be inferred. Others are directed at exposing the more subtle problem of the professional ‘hired gun,’ who earns a significant portion of his or her livelihood from testifying and, rather than having a tie to a specific party or attorney, may have a general economic interest in producing favorable results for the employer of the moment.

The Court ruled that the amount of money a witness is paid for testifying in a case is “unquestionably discoverable.” Now, this is not the only Court that has evaluated this issue and ruled in favor of permitting the discovery of information regarding the retention of an expert witness. As mentioned the last two weeks, the foregoing analysis should not be limited to medical experts. Counsel need to be creative and need to develop arguments for why similar information should be disclosed by other types of insurers. It is also important to ask for the written instructions regarding the terms of hire and scope of work of experts.

Please join me next Friday for more discussion of bad faith litigation issues.