Monday, March 4, 2013

Deposing The Expert Medical Witness: 'show me your papers, please'

A number of years ago there was a well-known family physician and osteopath in St. Louis who testified frequently for injured workers. Whenever any young defense attorney asked to see his file, he would smile broadly, reach below his desk and pull out a metal file. It was always a funny gag, no matter how many hundreds of times he performed it.

This raises the issue whether there is a right to see the expert's file, and if  the inability to inspect an expert's file allows a continuance or  bars admission of  the expert's testimony.

The exclusion of the testimony, rather than challenging the credibility of the expert, is a drastic remedy.

When an expert has limited qualifications, the testimony is usually admissible but provided less weight.  Generally, the admission or exclusion of expert opinion testimony is a matter of trial court discretion. Wingate v. Lester E. Cox Medical Ctr., 853 S.W.2d 912, 918 (Mo. banc 1993).The Commission, as fact finder, has discretion to determine an expert's qualifications to testify on specific matters. Lane v. Schreiber Foods, 903 S.W.2d 616, 621 (Mo.Ct. App. 1995).  There is no absolute right of a party to present expert testimony on any subject the party desires, and no absolute right to present testimony by any expert a party desires. Landers v Chrysler Corporation, 963 S.W.2d 275 (Mo. Ct. App. 1997) (allowing psychologist to testify regarding medical causation); Hudson v RHI America, 2007 Mo WCLR Lexis 31 (allowing audiologist to testify regarding causation).  The Commission criticized but did not exclude a medical expert for providing vocational opinions beyond his area of expertise. Kiemel v American Airlines, 2009 MO WCLR Lexis 80.

 So-called "venal" testimony is usually an issue of credibility and not admissibility.  See State ex rel Lichtor, 845 S.W.2d 55 (Mo. App. 1992).  A medical expert  in Wieda v Stupp Bros., 52 S.W.3d 602 (Mo. Ct. App. 2001); 2002 Mo WCLR Lexis 221,  was deemed“biased, uninformed and not credible” when the expert disputed causation on a prior diabetic condition which did not exist.  Other cases have criticized experts when they acted as "advocates" and not as "independent" medical examiners as if they had  somehow inadvertently became involved as expert witnesses. See Richardson v General Motors Corp., 2003 Mo WCLR Lexis 100; Andrews v City of Glendale, 2009 MO WCLR Lexis 88; Jezich v Lighthouse for the Blind, 2011 Mo WCLR Lexis 182; Sharmak v Allegiance Healthcare Corp., 2004 Mo WCLR Lexis 182; McKee v Anheuser Busch, 2002 MO WCLR Lexis 214.

Testimony from an expert can be barred if it is not the properly admissible.  This rarely occurs in the context of worker's compensation.   For example, criticisms within a medical recitation of medical credibility of other experts is improper. Stone v. City of Columbia, 885 S.W.2d 744, 747 (Mo. App. W.D. 1994). Under section 490.065, expert testimony is properly admissible if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." An expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reliable, the facts or data need not be admissible in evidence. Section 490.065; Wulfing v. Kansas City Southern Industries, Inc., 842 S.W.2d 133 (Mo. App. E.D. 1992). A medical expert's opinion must be supported by facts and reasons proven by competent evidence that will give the opinion probative force to be substantial evidence." Silman v. Montgomery & Associates, 891 S.W.2d 173, 176 (Mo. App. 1995), The essential test of expert opinion evidence is whether it will be helpful to the fact finder. See, State ex rel. Lichtor v. Clark, 845 S.W.2d 55, 59 (Mo.App. 1992); Stucker v. Chitwood, 841 S.W.2d 816, 819 (Mo. App. 1992).
The failure of a testifying expert to disclose file materials pursuant to subpoena violates Rule 56.01(b)(4).  Generally,  the rules of evidence for civil cases in the state of Missouri  shall apply.  8 CSR 50-2.010(14). Section 490.065.    All material given to a testifying expert must, if requested, be disclosed.   "This indeed is a “bright line” rule.  It is appropriate, at deposition or trial, to cross-examine an expert witness as to information provided to the expert that may contradict or weaken the bases for his or her opinion regardless of whether the expert relied upon or considered the information.” State ex rel Dandurand, 30 S.W.3d 831 (Mo. banc 2000).  Rule 56.01(b)(4).

Dandurand involved an expert who testified in response to a subpoena duces tecum and produced records that had previously been identified in a privilege log.   The documents which included a letter written by a defense attorney and a letter to the claims manager which were allegedly inadvertently sent to the expert.  A month earlier the attorney who wrote the letter refused the discuss the letters based on the claim of privilege. 

The lesson in Dandurand is that a party must produce the papers of a retained and testifying expert in response to a subpoena duces tecum.   

Section 287.210 sets up seemingly different rules for disclosures prior to hearing, prior to expert deposition, and prior to a motion to submit expert medical reports without deposition.  The party seeking to produce expert opinion without deposition testimony must produce all records received by the physician.  287.210.7.  The party seeking to produce expert opinion with deposition must produce  the expert's report  prior to deposition.  Immediately upon receipt of notice from the division or the commission setting a date for hearing of a case in which the nature and extent of an employee's disability is to be determined, the parties or their attorneys shall arrange, without charge or costs, each to the other, for an exchange of all medical reports, including those made both by treating and examining physician or physicians, to the end that the parties may be commonly informed of all medical findings and opinions.  This does not refer to the broader disclosure requirement of records required under a 60 day motion, but seems to include medical reports even of non-testifying experts prohibited by Rule 56.   The party seeking a possible sanction under Dandurand may consider more formal discovery of subpoena duces tecum.
Clearly, the primary policy behind "show me your papers" is  impeachment. The expert who loses a file at another office or who  destroys documents without identifying which documents were ever reviewed, may undermine the credibility of his testimony. By identifying the "papers"  used by the expert, the cross examiner may identify the expert may be uninformed, outside his league, or deliberating distorting the record in the role as a "venal" advocate.  The public policy to allow such discovery to see "papers" within an expert's file is consistent with the Division's policies for parties to be commonly informed.    The party tendering the expert may want to encourage production of the "papers"  to bolster the expert's testimony as being impartial and informed.  
The better practice is for the expert to identify which documents were reviewed and for the referring party to log which documents were provided.  Experts can always disagree the meaning of records but should not deep six documents they reviewed.    The capacity to "show me your papers" may be more challenging as more experts go "paperless" and an attorney's capacity to compare whether scanned documents are complete. 

It is in both parties interest to disclose records prior to expert testimony to avoid  a request to  "show me your papers" as  a discovery tool.  The expert deposition sometimes becomes one of the first opportunities to  review medical records when the parties fail to share records or when injured workers obfuscate a medical history.  No one benefits by paying in expert to sit quietly while an attorney flips through papers to compare files, except the expert.