199 F.R.D. 553 | D. Maryland | 2001
MEMORANDUM AND ORDER
This diversity personal injury case has been assigned to me, with the consent of the parties, for all proceedings. 28 U.S.C. § 636(c), L.R. 301.4. The pending dispute involves the plaintiff, Mr. Behler’s, efforts to obtain discovery of facts relating to income earned, and work done, by Robert D. Keehn, MD, on behalf of insurance companies and defense attorneys in connection with conducting Rule 35 examinations of plaintiffs in personal injury cases. Such examinations, euphemistically referred to by counsel as “independent medical examinations” (“IME”), can be anything but independent, if they are performed by a doctor who has significant financial ties with insurance companies and attorneys assigned to defend personal injury cases. Counsel for Mr. Hanlon, the defendant, vehemently has objected to the discov
DISCUSSION
Plaintiff originally served a Rule 34 request on defendant, seeking tax returns, and documents relating to income earned during the last five years by Dr. Keehn from defense attorneys and insurances companies, in connection with performing IME’s, and testifying as an expert witness in deposition or at trial. Further, plaintiff sought documents relating to the amount of time Dr. Keehn has spent doing such activities, as well as a list of cases where he has been retained for such services, and attorneys and insurers on whose behalf he has provided forensic services. It is plaintiffs contention that for more than 20 years Dr. Keehn has been a “defense expert for insurance companies”, and plaintiff wants to discover information to use at trial to impeach Dr. Keehn’s credibility by demonstrating bias
The pre-December, 2000 version of Rule 26 governs this dispute, as the scheduling order in this case was issued prior to December 1, 2000
A. Methods of Impeachment
The importance of credibility of witnesses to the trial of cases cannot be overstated, and this is especially true with respect to expert witnesses. The rules of evidence provide frequent reminders of the importance of credibility issues in trials. Rule 611(b) defines the scope of cross-examination to include the subject matter of testimony developed during direct examination, as well as matters affecting the credibility of the witness. Rule 104(e) teaches that the mere fact that the court has admitted evidence at trial does not mean that it must be given any particular weight by the fact finder, and preserves the right of opposing parties to attack the credibility of witnesses. Similarly, Rule 806 allows a party to attack the credibility of a hearsay declarant by any means that could have been employed if the declarant had testified in person. Despite the recognition of the importance of credibility issues in the Federal Rules of Evidence, they only explicitly provide for three forms of impeachment
1. Bias Impeachment
Although not directly covered by a specific rule of evidence
As Judge Weinstein aptly has described it:
Impeachment by showing the witness to be biased rests on two assumptions: (1) that certain relationships and circumstances impair the impartiality of a witness, and (2) that a witness who is not impartial may, consciously or otherwise, shade his or her testimony in favor of or against a party. Since bias of a witness is always significant in assessing credibility, the trier of fact must be sufficiently informed of the underlying relationships, circumstances, and influences operating on the witness to determine whether a modification of testimony reasonably could be expected as a probable human reaction.
Weinstein Treatise, § 607.04[1]. Thus, the central purpose of bias/prejudice impeachment is to diminish the credibility of the witness to be impeached, as opposed to any substantive use of the evidence to prove a matter of consequence to the litigation independent of its impeachment value. Exam-pies of relationships or circumstances that permit a finding of bias or prejudice are nearly limitless, and include:
love, hate, fear, family relationship, sexual preference, financial interest in outcome, business relationship, membership in an organization, shared beliefs, payment by a party such as that made to an expert witness, and in criminal matters the fact that the witness has not been charged with a crime, been granted immunity or is currently awaiting sentence.
Graham Treatise, at § 607.7 (emphasis added). Further, bias/prejudice impeachment is not viewed as collateral, meaning that it may be proved both by examination of a "witness as well as by introduction of extrinsic evidence, if the witness denies the bias or prejudice, or is evasive or equivocal about it, during examination. Weinstein Treatise, at § 607.04[1], [4], Wright and Gold Treatise at § 6095; Graham Treatise, at § 607.7; Mueller and Kirkpatrick Treatise, at § 6.33; McCormick Treatise, at § 39. As will be discussed in more detail below, the fact that an expert witness may have a 20 year history of earning significant income testifying primarily as a witness for defendants
2. Impeachment by Contradiction
Another traditional method of impeachment not explicitly recognized by the Federal Rules of Evidence is impeachment by contradiction. At common law, a witness could be impeached by contradiction, sometimes referred to as “specific contradiction”, meaning that the witness’ testimony was shown to be incorrect or false, either through the witness’ own concession during examination, or
3. Impeachment by Incapacity
The final method of impeachment recognized at common law, but not expressly adopted by the Fedei'al Rules of Evidence, is impeachment by demonstrating a defect in a witness’ ability to perceive, remember or communicate
This form of impeachment usually is accomplished through examination of the witness, but, since defects in a witness’ capacity are not considered collateral, they may be proven by extrinsic evidence as well. Weinstein Treatise, at § 607.05[2]; Graham Treatise, at § 607; Mueller and Kirkpatrick Treatise, at § 6.35 (“It is said that proof of sensory or mental incapacity is always relevant and never collateral, which means that cross-examination is appropriate and exti’insic evidence is also admissible.”). Although not viewed as collateral, evidence of lack of capacity is admissible because of its relevance to impeachment of the credibility of a witness, rather than as substantive evidence going to the elements of the claims and defenses at issue.
4. Character for Untruthfulness/Prior Bad Act Impeachment
Rule 608 permits two distinct types of impeachment, both regarded as a form of character impeachment
Rule 608(b) involves an altogether different type of impeachment. It permits the impeachment of any witness — by inquiry only — into prior bad acts that are probative of truthfulness, that did not result in a criminal conviction which would be admissible under Rule 609. If the witness admits during examination the prior bad act, the impeachment is accomplished. If he or she denies it, however, Rule 608(b) prohibits the introduction of extrinsic evidence of it, primarily to avoid confusion, delay, and introduction of collateral matters that would distract the jury. Thus, there is an inescapable irony associated with Rule 608(b) impeachment — it works only when the witness is honest enough to acknowledge the prior impeaching acts. Impeachment under Rule 608(b), therefore, only may be accomplished by examination of the witness. If the prior misconduct is admitted, its relevance usually is limited to its impeachment value, as it has no other independent substantive value.
5. Impeachment by Prior Conviction
Rule 609 allows impeachment to be accomplished by proving that the witness has been convicted of a prior crime that meets certain criteria. This form of impeachment is regarded as another method of character impeachment
Although Rule 609 does not expressly describe the method by which impeachment by conviction of a crime may occur, the most expeditious way to accomplish it
6. Impeachment by Prior Inconsistent Statement
The final method of impeachment recognized by the rules of evidence also is the most frequent and popular method — impeachment by prior inconsistent statement. It is governed primarily by Rule 613, which identifies different procedures for accomplishing the impeachment by examination of the witness, as opposed to the introduction of extrinsic evidence. Rule 613(a) governs impeachment by prior inconsistent statement during the examination of the witness. It allows the impeaching attorney immediately to confront the witness with the prior statement, without first showing it to him or her, or describing its contents, or the circumstances under which it was made. If the witness unequivocally admits having made the prior statement, and if it is contradictory of his or her trial testimony, then the impeachment is complete upon the acknowledgment that the statement was made, and generally there is no need extrinsieally to admit the statement if it has been memorialized in some tangible format. However, if the witness denies making the statement, or is equivocal or evasive about having made it, or claims not to be able to remember the earlier statement, under circumstances where the court determines that this disclaimer is not credible
Rule 613(b) governs extrinsic proof of pri- or inconsistent statements. It permits extrinsic proof only if, during examination, the witness was afforded an opportunity to explain or deny the prior statement, unless the court, in the interest of justice, allows its admission, or the prior inconsistent statement also qualifies as an admission under Rule 801(d)(2).
Prior inconsistent statements are admissible only as impeachment, unless they also qualify for admission substantively, under Rule 801(d)(1)(A) (inconsistent statement made under oath at a prior trial, hearing, court proceeding or deposition); as an admission by a party opponent under Rule 801(d)(2), or under some other exception to the'hearsay rule.
The methods of impeachment that may be employed at trial, whether authorized by the rules of evidence or the common law, may be summarized in the following chart.
[[Image here]]
B. Scope of Discovery
Under the version of Rule 26(b)(1) that governs the outcome of this case, the scope of discovery extended to facts that are not privileged that are relevant to the subject matter of the litigation. Under the revised scope of discovery adopted on December 1, 2000, the scope of discovery was narrowed to cover facts that are not privileged that are relevant to the claims and defenses raised in the pleadings. Thompson v. HUD, 199 F.R.D. 168, 171 (D.Md.2001). The commentary to the most recent rule changes makes it clear that even under the narrowed scope of discovery facts bearing on the credibility of witnesses are relevant to the claims and defenses raised by the pleadings. Id. at 171-72 (citing commentary to the December 1, 2000 changes to the Federal Rules of Civil Procedure, 192 F.R.D. at 389). Thus, under either the “old” or “new” version of Rule 26(b)(1), a party legitimately may seek discovery of facts that relate to any of the six forms of impeachment discussed above. However, as Rule 26(b)(2) instructs, the mere fact that such information falls within the scope of legitimate discovery does not mean that parties are entitled to unfettered discovery of impeaching information, by whatever means of discovery they seek. Indeed, as noted in Thompson v. HUD, a determination that facts which a party seeks to discover fall within the scope of discovery set out by Rule 26(b)(1) is but the first step in the analysis. Id. at 171. Even if discoverable, the court may, upon a Rule 26(c) motion for protective order, or on its own initiative, restrict or prevent requested discovery if, following an evaluation of the Rule 26(b)(2) factors, it determines that the discovery would be burdensome, duplicative, unnecessarily costly, or insufficiently probative to the issues in the litigation to warrant the expense of production. Id. at 171.
In the present ease, no intellectually honest argument can be made that the information sought by plaintiff regarding Dr. Keehn’s activities as a defense expert witness is not relevant to bias/prejudice impeachment, and, therefore, within the scope of discovery permitted by Rule 26(b)(1). However, legitimate issues are raised regarding the extent of the bias discovery sought, the methods of discovery employed, and possible abuses that could occur if the discovery is permitted without a protective order. For example, plaintiff seeks discovery of the total income earned by Dr. Keehn for the last five years, the amount thereof earned providing defense Rule 35 examinations, records relating to the hours spent by Dr. Keehn in this capacity, copies of his tax returns, and a listing of all insurance companies with whom he is affiliated, as well as a listing of all cases in which he has provided expert services. This is overkill. While there may be cases in which an expert’s gross income, and the specific amounts thereof earned by providing services as an expert witness, may be discoverable, this should not be ordered routinely, without a showing, absent here, why less intrusive financial information would not suffice. Most people are sensitive about their income, and who knows the details about it. By their very nature, expert witnesses are knowledgeable of information that is scientific, technical, or specialized, generally acquired by long, hard study and experience. When asked to provide expert testimony, they are in a position to request compensation that matches their qualifications, which
Instead, the jury readily should be able to assess possible bias on the part of an expert witness if they are made aware of the total percentage of his or her gross income that is earned from providing expert witness services. Similarly, there is no need for the expert to have to produce his or her tax returns, if the party seeking the discovery has accurate information regarding the percentage of income earned as an expert.
Additionally, while documents relating to all cases within a stated period of time for which an expert was retained are relevant to possible bias impeachment, in this case I do not believe that Dr. Keehn should be required to assemble these records, provided the plaintiff is able to obtain the equivalent information by a more expedient, less costly method. To this end, I will order that Dr. Keehn be produced for questioning at a deposition regarding the information sought by plaintiff. If possible, this deposition will be by telephone, and its scheduling will be expedited. The questioning by plaintiff at the deposition will not last more than 2 hours, provided Dr. Keehn provides complete and unevasive answers to proper questions asked, as is required by Rule 37(a)(3). Further, prior to the deposition, he will make a diligent search of all records in his possession, custody and control, to enable him to provide the following information: tl) The percentage of his gross income earned for each of the preceding five years attributable to performing expert witness services on behalf of insurance companies, and/or attorneys defending personal injury cases; (2) a list of cases in which he has provided such services during the last five years, in sufficient detail to enable the plaintiff to locate the court file, and/or issue a subpoena for it. At a minimum, the name, address and telephone number of the attorney and/or insurance claims representative that engaged Dr. Keehn will be provided; (3) the name of each insurance company for which Dr. Keehn has provided services as an expert witness in personal injury cases, for the preceding ten years.
If, after taking this deposition, plaintiff can demonstrate that additional information is required to enable him to undertake reasonable bias impeachment of Dr. Keehn, he may seek leave from the court to take additional discovery. Further, should the court determine that Dr. Keehn has not provided complete, and unevasive, answers to the discovery herein ordered, or if the court determines that he has not made a good faith, diligent effort to assemble the information
Finally, to protect against possible abuse of the sensitive financial information for which discovery has been allowed, it will be subject to a protective order that prohibits dissemination or copying of the information produced for any purpose not directly related to the prosecution of this case, absent the consent of Dr. Keehn, or further order of this Court. This protective order will remain in effect following the conclusion of the pending case, unless withdrawn by order of this Court.
C. CONCLUSION
For the reasons stated above, the defendant’s motion to preclude the plaintiff from discovering information about Dr. Keehn’s income in connection with his forensic activities on behalf of personal injury defendants is denied. However, the information sought by plaintiff will not be produced as requested, it will be produced as specified in this Memorandum and Order, and its production will be subject to the protective order imposed.
. In support of his request, plaintiff cites Wrobleski v. Lara, 353 Md. 509, 727 A.2d 930 (1999), in which the Maryland Court of Appeals permitted inquiry regarding expert witness income for purposes of developing bias impeachment. While instructive, and consistent with the ruling in this order, it is not binding authority, as this is a diversity case governed by the Federal Rules of Evidence and procedure, not state procedural rules or cases. See Hottle v. Beech Aircraft Corp., 47 F.3d 106, 109 (4th Cir.1995) (citing Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1054 (4th Cir.1986)) (holding that the Federal Rules of Evidence govern in diversity cases); Rowland v. Patterson, 852 F.2d 108, 110 (4th Cir.1988) (citing Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965)) (holding that "federal courts apply federal rules of procedure, both those promulgated in the Federal Rules of Civil Procedure as well as wholly judge made procedural rules, unless the Erie doctrine commands otherwise"); Ronk v. Comer Kick, Inc., 850 F.Supp. 369, 370, n. 2 (D.Md.1994) (citing Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965)) (holding that the federal rules of procedure govern all matters of procedure in a diversity case).
. See, Thompson v. HUD, 199 F.R.D. 168, 172 (D.Md.2001).
. Under the revised Rule 26(b)(1),
[a] variety of types of information not directly pertinent to the incident in suit could be relevant to the claims or defenses raised in a given action. For example, other incidents of the same type, or involving the same product*556 cernid be properly discoverable under the revised standard. Information about organizational arrangements or filing systems of a party could be discoverable if likely to yield or lead to the discovery of admissible information. Similarly, information that could be used to impeach a likely witness, although not otherwise relevant to the claims or defenses, might be properly discoverable. In each instance, the determination whether such information is discoverable because it is relevant to the claims or defenses depends on the circumstances of the pending action.
Commentary to Rule Changes, Court Rules, 192 F.R.D. 340, 389. Under the former Rule 26(b)(1), facts relevant to impeachment of the credibility of a witness would relate to the "subject matter” of the litigation.
. Impeachment by bad character for truthfulness or by prior bad acts (Rule 608), impeachment by conviction of a qualifying crime (Rule 609), and impeachment by prior inconsistent statement (Rule 613). McKitis v. Defazio, 187 F.R.D. 225, 228 n. 2 (D.Md.1999). Interestingly, when codified in 1994, the Maryland Rules of Evidence addressed this issue, and explicitly recognize all of the traditional ways of impeachment. Maryland Rule 5-616. Bias/prejudice impeachment is permitted at Rule 5-616(a)(4), and (b)(3).
. Rule 408 (which allows use of statements made during negotiations to compromise disputed claims to prove bias or prejudice, while prohibiting their use to prove liability or damages), and Rule 411 (which permits introduction of evidence of insurance if offered to show bias or prejudice) indirectly recognize the applicability of bias/prejudice impeachment.
. Although the opinion is unpublished, and therefore not precedential, its logic is nonetheless persuasive, and its analysis helpful, by analogy, to resolving this issue.
. The same would apply- to the impeachment of an expert that had similar ties to plaintiffs or plaintiffs' counsel.
. Although there is no rule of evidence that permits impeachment by incapacity, this form of impeachment is closely related to Rule 602, which requires that, except for expert witnesses, no witness may testify unless he or she has personal knowledge of the facts to be told. Obviously, if it can be shown that a witness lacks personal knowledge because of some physical or mental incapacity, the witness would be disqualified from giving testimony as a threshold matter, under Rule 104(a).
. See, e.g., Rule 404(a)(3), which permits the use of character evidence for purposes of impeachment, pursuant to Rules 607, 608 and 609.
. The opinion testimony must be admissible in its own right, pursuant to Rules 701 or 702.
. Which, though hearsay, nonetheless is admissible under Rule 803(21).
. See, e.g., Rule 404(a)(3).
. A crime punishable by death or imprisonment of more than one year under the law under which the witness was convicted.
. And, therefore, the method the court most likely will require, under Rule 611(a).
. Courts have not always agreed on whether extrinsic proof of a prior statement of a witness may be introduced when the witness testifies at trial that he or she cannot remember the events contained within the prior statement. Graham Treatise, at § 613.2. Some have argued that a lack of memory is not “inconsistent” with an earlier statement, and therefore Rule 613 is inapplicable. Others have required the court to make a preliminary finding that the testimony at trial that the witness cannot recall the events recorded in the prior statement is incredible before the prior statement may be admitted. Id. Alternatively, the party seeking introduction of the earlier statement still can attempt its introduction as past recollection recorded, Rule 803(5).
. Once again, there may be cases where it is appropriate to compel discovery of an expert witness' total compensation, and the portions thereof earned from functioning as an expert witness. There may even be a case where tax returns and other documents relating to expert activities should be compelled as well. However, Rule 26(b)(2) would require a far stronger showing of need than is present in this case, and it is unlikely that such intrusive information would be ordered in routine cases.