*1 905A.2d 482 COOPER Barbara A.
Loretta SCHOFFSTALL Eagle, Perry Appeal of A. M.D. Pennsylvania.
Supreme Court Argued May 7, 2006. Sept.
Decided *3 Metcalfe, N. Esq., Esq., Curtis Susan V. Stambaugh, David Lehman, Esq., Perry E. A. Harrisburg, Eagle, M.D. Jarecki, Dowling, Esq., David B. James- Esq., Harrisburg, J. A. Cooper. for Barbara Statler, Brenner,
John Esq., Andrew Esq., Thomas Edward Paterno, Esq., Heather L. for Loretta Harrisburg, Schoffstall. Ronca, Scott B. Cooper, Esq., James Richard Harris- Esq., for PA burg, Lawyers Trial Association. CAPPY, C.J., CASTILLE, NIGRO,
Before: NEWMAN, SAYLOR, BAER, EAKIN and JJ.
OPINION Justice SAYLOR.1 casé,
This appeal availability, concerns civil financial records of a non-party expert medical inquiry facilitate an into bias. In December Barbara A. a- commenced civil action against arising pedestri- Loretta Schoffstall out of a accident. On the of Ms. request Schoffstall an/automobile insurer, liability her an independent medical examina- and/or performed tion Ms. Cooper by Appellant, orthopedic surgeon Perry Eagle, A. M.D.
Apparently known, Dr. Eagle’s view of partic- extensive in defense ipation medical examinations in the past, Ms. Cooper sought discovery of certain of his financial records activities, pertaining indicating these that the éffort was *4 probe or, intended to potential favoritism toward defense more generally, industry. insurance Pa. generally Nos. R.Civ.P. 4009.21-4009.27 (prescribing* procedure for production obtaining of documents from a non-party). Over opposition, Ms. Schoffstall’s ultimately Ms. was suc- subpoena cessful a Dr. serving upon Eagle requiring production of of federal copies form 1099 tax records associat- reassigned 1. This case this author. con independent of services performance
ed with his 1999, 2000, undertaking calendar years tractor for Dr. depositions.”2 examinations' and reports, “defense-related seeking motions responded Ms. Schoffstall Eagle that, alia, contended, inter Eagle orders. protective sought information demand discovery the extent entirely or firms persons made other payments related to counsel, or the insurer involved parties, to the unrelated case, it the bounds permissible exceeded present Pitts by Zamsky Parking Public Auth. as constrained (1954) (holding, in a condem Pa. A.2d 335 burgh, 378 case, question condemning error to nation it was that he had re concerning fees authority’s expert witness in connec for services rendered five-year period ceived a over Mohn v. parcels), of other acquisition tion with the Phila., Pa.Super. & College Hosp. Hahnemann Med. (1986) trial court committed (holding of a defense error cross-examination permitting reversible medicolegal of fees for receipt medical regarding review). See Mo litigation other than in the under services Order, at A. for Protective Perry Eagle, tion M.D. in other into work (“Discovery professional performed other involving entirely parties surely different and counsel matters territory into such that no reasoned extends collateral basis permitting sought exists for excursions Plaintiff.”). per To would be degree mitted, Dr. confidential treatment his finan Eagle sought cial information. court, per
At a common pleas conference before the Lewis, Cooper’s produced Honorable Richard A. Ms. counsel prior collection of from the records of a number excerpts medi- independent civil actions which Dr. conducted Eagle request cal examinations on the the defense testified and/or offered to on behalf of the defendant. These documents were contention that support Cooper’s performed Ms. reports for Federal form 1099 miscellaneous income individuals and non-employee $600 payment entities at least ser- that received year. during given vices calendar *5 abundant (on defense medical examinations the order of 200 to some recent years), derived substantial income from work, and issued reports written containing repetitive, predictable, defense-favored observations conclusions. Judge Lewis denied the order, motions for protective but separately entered an order requiring confidential treatment of financial information produced to be by Dr. Eagle.
Upon the filing by Dr. Eagle of a notice of appeal,3 Judge Lewis issued a memorandum opinion forth setting his reason ing, pursuant to Rule 1925(a). of Appellate Procedure Cooper Schoffstall, 2001, (C.P. No. 5932 CV slip op. at 5-6 2003). Dauphin Dec. As background, he explained that a party generally is entitled to discovery matter, regarding any not privileged, that is relevant to the litigation’s subject mat ter and will substantially aid in advancing claims or defenses. See Pa.R.Civ.P. No. 4003.1. Judge indicated, Lewis also how ever, that Pennsylvania (“Dis Rule of Civil Procedure 4003.5 covery Expert Testimony. Material”) Trial Preparation generally limits the scope of expert discovery to the substance of the facts and opinions to which expected testify and a summary of the grounds for opinions. Neverthe less, he reasoned that a court may permit additional discovery from an expert witness under an express exception to Rule general rule, 4003.5’s “[ujpon cause shown.” See Pa.R.Civ.P. 4003.5(a)(2). No.
Judge persuaded Lewis was that Ms. Cooper had demon- strated cause to support directed discovery of the limited financial records within the scope of the subpoena, since the documents might relevant show bias. In this regard, he upon relied Ms. Cooper’s informal submission as demonstrat- ing that Dr. Eagle performs defense examinations, medical prepares written reports, and testifies at court proceedings “high frequency.” Id. at 6. Referencing a passage Brady Thornton, v. Ballay, Assoc., Maloney Inc., Med. Although appeal interlocutory relative underlying to the civil action, Eagle proceeded right as of under the collateral order Schwartz, doctrine. 481-83, See Ben v. 556 Pa. 729 A.2d 550- (1999). that a party- proposition for the (Pa.Super.1997), partiality, demonstrating may impeach that, that an “since it is to show proper reasoned Lewis Judge *6 it party, is specific a bias in favor of a witness has in favor of a class of that an has a bias possible to show 2001, slip at 6. Additional op. No. 5932 CV parties.” Cooper, to the closely is tethered more discovery he observed that ly, question it to the litigation the than is subject matter of 202, Schirra, 814 A.2d at Accord v. admissibility George trial. (“[T]he discov during standard relevancy 205 (Pa.Super.2002) trial.”). it at broader than is admission ery necessarily persuaded by arguments not advanced also was Judge Lewis approved he had that the Dr. chilling have a burdensome, annoying, or harassing, would medical perform independent willingness on effect doctors’ other courts Finally, he decisions of examinations. referenced approach. with his See being he consistent viewed 2001, (citing Kogod v. slip CV 4-6 op. No. 5932 Cooper, (M.D.Pa. 1997), 17, 1:CV-97-0608, slip Dec. Spangler, op. No. (C.P. Leonardi, 4236, Lackawan slip op. v. 99 CV Clifford 3, 2002)). na Oct. stay Lewis a Judge and obtained from Eagle sought subpoena. relative enforcement
pending appeal affirmed three-judge A of the Court panel Superior ex- Judge properly Lewis opinion, finding memorandum of 1099 directing production ercised his discretion Eagle. Schoffstall, No. forms received 2003, July slip op., (Pa.Super. 1164 MDA 2004 1969347 WL 2004). 14, however, in mate- reasoning, departed The panel’s particular, In Judge approach. from respects rial Lewis’s circumscribing all read Rule 4003.5 as Judge whereas Lewis that Rule 4003.5 experts, panel indicated divulged an- opinions acquired facts and only addresses into inquiries litigation applicable and is ticipation 4, id. at expert witnesses. See part bias on the indicated, Rather, discov- 1969347, panel at *2. 2004 WL broad, ery of this nature falls within of information id. under Rule 4003.1. See general scope 512
Further,
panel rejected
Court
Superior
Dr. Eagle’s
that,
decisions,
contention
Zamsky
under the
and Mohn
expert may not be examined at trial concerning payments
received from sources other than the
In
parties themselves.
referenced,
alia,
regard,
Superior Court
inter
Spino
Co.,
Tilley
v. John S.
Ladder
448
A.2d
Pa.Super.
(1996) (“A
is entitled
party
cross-examine an expert
to explore
credibility
witness
inquire
witness and to
bias,
any potential
into
interest or relationship which could
witness.”),
testimony
other grounds,
[a]ffect
on
aff'd
(1997),
Pa.
A.2d 1169
and Coward v. Owens-
Corning Fiberglas
Corp.,
(Pa.Super.1999) (ap
proving the allowance of
cross-examination
an asbestos
defendant’s
concerning
money
the amount of
any
that he had earned from
asbestos
over
manufacturer
years).4
course of the prior twenty
The
surveyed
court also
*7
jurisdictions,
several decisions from other
including Wrobleski
Lara,
509,
930,
(1999)'(“[I]t
de
v. Nora
353 Md.
727 A.2d
is
generally appropriate for
to
party
inquire
whether a witness
as
expert
offered
an
in a particular field earns a significant
portion
amount of income from applying that
in a
expertise
forensic setting.”), Metropolitan
v.
Property and Cas. Ins. Co.
Overstreet,
(“A
31,
(Ky.2003)
103 S.W.3d
39-40
jury could
reasonably believe that a physician who
derives
substantial
percentage of
annual income from
exami
[defense medical]
nations, potentially earning hundreds of thousands of dollars
every year
alone,
from such
might
tempted
examinations
be
to
Jones,
testimony
employer.”),
slant his
to suit his
Trower v.
211,
136,
(1988)
121 Ill.2d
297,
117 Ill.Dec.
520 N.E.2d
it
(finding
proper
inquire
to
much an expert
how
medical
services),
earned annually
witness
for litigation
and. Trend
South,
(Fla.Dist.Ct.
815,
Inc. v. Antomarchy, 623
So.2d
(“[information
App.1993)
regarding
generated by
income
physician’s performance
independent
medical examinations
companies
for insurance
firms
and law
discov-
relevant and
review,
Although
accepted
Coward was
for this
v.
Court's
see Coward
705,
Owens-Corning
(1999)
Fiberglas Corp., 560
(per
Pa.
The necessary. is more than Counsel should never no intrusive harass, to humiliate the badger proposed be permitted to inquiries strictly necessary witness with objectivity. privacy to The professional matters relevant finances, as associa- personal professional tions, should be and should patient/clients respected ac- honesty only necessary insure invaded legitimate inqui- countability the responding however, recognized, that a It must also be venal ries. fully inqui- expected not be answer could required produce ries as which the witness is not interests A balancing privacy documentation. delicate the need becomes against accountability therefore *8 trial court. responsibility Clark,
Id. 643 ex rel. Lichtor v. 845 S.W.2d (quoting State 55, (Mo.App.1992)). 65 panel after decision in different Cooper,
Soon similar Superior approving issued decision Court Whetzel, from Dr. J.S. v. discovery another case. See appeal 1112 allowed (Pa.Super.2004). We To degree discovery case to issue. address rules, interpretation of this Court’s that the matter an involves our review is plenary. Within the ambit of the discretionary authority allocated by courts, the rules to the trial we review for abuse discretion.
Presently, Dr. Eagle maintains that the discovery sought by Ms. Cooper beyond of an permitted In witness. this regard, supports he Judge Lewis’s view that the restric control, tive terms of Rule 4003.5 describing position that any information outside the scope Rule 4003.5 falls back into the liberal of Rule sweep 4003.1 as untenable bootstrapp ing.5 According Eagle, the approach endorsed Superior Court and Ms. Cooper would authorize litigants, without seeking fees, leave court or paying expert freely an depose opposing party’s expert witness on virtually any subject (the except the one most central to the litigation case). expert’s opinion on the facts Accord Kern v. (1986) (“If Chambersburg Hosp., 9 Franklin this were true, almost any conceivable information an concerning would discoverable. This belies the intent of Rule 4003.5 4003.1.”); which is to limit Rule see also Alston v. Outboard (1991). Marine Corp., 12 Pa. D. & C.4th 302-03 He urges that this cannot have been this Court’s intention in promulgating Rule 4003.5. generally No. Pa.R.Civ.P. (delineating proper considerations for interpreting rules when alia, the text is not explicit, inter including, the occasion and rule, necessity object attained, for the to be and the consequences of a particular interpretation). Along these lines, Dr. Eagle also highlights Judge approach Lewis’s on aspect has been the one in prevailing Pennsylvania trial courts.6 that, acknowledging
5.
generally,
While
provides
Rule 4003.1
for liberal
matter,
"any
privileged,
subject
which is relevant to the
action,”
4003.1,
pending
matter
involved in the
Pa.R.Civ.P. No.
Eagle highlights
specifically
"subject
the rule
states that it is
to the
inclusive,”
provisions place
Rules 4003.2 to 4003.5
which
limits on
scope
litigants.
available to
Id.
alia,
Rahimzadek,
Appellant
(citing,
See Brief for
at 11
inter
Robbins
(2001) ("Clearly
54 Pa. D. & C.4th
such
financial
[of
regarding
opposing
information
party’s expert
an
would
witness]
not be
permitted
absent
order of court
pursuant
'cause shown'
4003.5(a)(2)."),
Chem.,
Pa.R.C.P.
Phila.Co.Rptr.
Monteiro v. Dow
*9
neither
criterion, Dr.
that
Eagle recognizes
As
the cause
to
a
nor the decisional law specifies
of Civil Procedure
the Rules
determining
supporting
test for
cause
particular
In
an
witness.
address-
expert
financial information from
an
void,
suggests
adopt
he
that
the Court should
ing this
by
on the main issues
litigation
that centers the
approach
avenues,7
that
and
forays
impeachment
into collateral
limiting
privacy
to the
interests
ample respect
affords due and
information. As to
personal
financial
expert witnesses
commentary
concern,
general
references
privacy
courts, see,
v.
Fraternal
Police
e.g.,
Order of
from the federal
Cir.1987)
(3d
105, 109, 115
City
Philadelphia,
812 F.2d
may
of financial information
(observing
“public disclosure
intrusive”),
and
as well
personally embarrassing
highly
be
tax
a
seeking
recognizing
on
motions
records
rulings
relevancy
and
standards
privilege
imposing high
qualified
be ordered
such records.
parties
produce
before
will
Inc.,
Am.,
Distribs.,
Motors
Peugeot
Eastern Auto
Inc.
Puerto
Mitsui & Co. v.
147,
(E.D.Va.1982);
148-49
96 F.R.D.
1978).
(D.Puerto
Auth.,
Res.
72,
Rico
Rico Water
79 F.R.D.
Zamsky
that,
Further,
under the
Eagle contends
decisions,
Mohn
affairs of an
financial
(other
substantially
connection
bearing
than those
direct
221, (1989) ("The only discovery that is allowed
between after successful ”); Kern, there 9 Franklin at must be satisfied that is 'cause shown.’ (explaining that drafters "the court finds it difficult believe encourage through parties slog a morass 4003.5] intended to [of Rule prior expert testimony, pool of and to delve into the vast authorities to, exposed impeachment”), they have been all the sake of Dorko, (1984) (“If Supreme L.J. Benson v. 35 Cumberland discovery provisions in Rule 4003.1 Court had wanted liberal they subject to applied experts have would not have made that Rule 4003.5.”)). the limitations in Rule Faust, (holding (Pa.Super.2004) Jones v. 852 A.2d Accord reports independent medical examinations witnesses' discoverable, preceding year informa- over were not because "the objective impeachment purposes, sought is for which could tion intrusive, means, other, e.g., contrary accomplished less testimo- ny physician”). of another discrete court are proceedings) beyond scope trial,
available
Eagle argues
cross-examination
which Dr.
*10
aspects
limited to
of the
that
witness’s financial interest
are
demonstrably probative
any
bias
he
may
that
harbor
firm retaining
Eagle
favor
the law
him.8 Dr.
maintains that
approach
this
is also sensible
it prevents
because
matters
to
from
relating
surfacing
juries,
insurance
before
and it
obviates
need for
to
any
align practice
burdensome
efforts
tax
Eagle
records with
records.9 Dr.
also
that
posits
records,
for
purpose
which Ms.
seeks his tax
impeach-
ment, can
accomplished through
be
less intrusive
burden-
and
means,
some
and that a
this
holding allowing discovery in
case
establish a categorical
permitting
would
rule
collateral discov-
See
ery
(“Plaintiff
case.
every
Appellant
Brief for
at 21-22
has not shown
cause
any
for
supplemental discovery
sought;
no
exists in
and
cause
this case
not
which would
also
to
apply
independent medical
in any
person-
evaluations
other
Therefore,
injury
al
action.
directing
Eagle
Dr.
to
his
produce
("The
Zamsky,
earnings
378
8.
Pa. at
In couches the broader as an tactic regards emerging to moderate he attempt what personal into the routinely probe trial bar to plaintiffs’ price,” “exact a experts financial affairs medical defense privacy, performing indepen- of the doctor’s in terms on a defendant’s testifying examination and dent medical important policy According Eagle, public to Dr. three behalf. of collater- the allowance implicated issues are He argues financial records. al *11 on chilling affairs: has a effect financial of an witness’s witnesses, availability qualified experienced of and (“Parties of see, a war wage for at 17 will e.g., Appellant Brief regarding experts of by conducting onerous attrition substan- impeachment.”); for purposes collateral matters on burden, delay and attendant tially expense, increases to are collateral to delve into matters that parties permitting Elkins v. injury litigation, see personal the central issues (Fla.1996) (highlighting discov- Syken, 672 So.2d to as a tactical tool harass ery intended be used was “never adversary availability in a chills the actually manner that witnesses; nor it intended by non-party information it could effec- process expensive make the so and or force tively deny access to information witnesses unjustly”); dispro- and has a to resolve their parties disputes impact generally on the defense.10 See portionate, adverse decision, Cooper Eagle argues Superior while that the Court's Dr. 10. face, against light appearing neutral on its is biased defense Appellant personal injury litigation.” for realities Brief "undeniable regard, perspective his as follows: In this he elaborates on 16. attorney or expected the defendant's It is axiomatic and to be perform independent carrier chooses the doctor insurance treating physician plaintiff’s is often While a medical examination. circumstance, by plaintiff's lawyer, by chance determined litigation, opinions from claims in and offer doctors who evaluate Elkins, 1994) Syken 544-45 DA (Fla.App.3d So.2d (concluding decisions on the issue financial information from too experts gone “have far in permitting inquiry burdensome into the physicians, financial affairs of providing only information emphasize which ‘serves details that unnecessary apparent which to the jury would on the simplest cross-examination: that certain doctors are chosen consistently by particular side in personal injury ” (citation cases to on testify omitted)), its behalf respective Elkins, aff'd, So.2d at 517.
Ms. Schoffstall’s many brief follows the points made Eagle and highlights already that Ms. has assem- bled “an arsenal of legal documents” to Dr. Eagle’s related performance services, such medicolegal generic that “the to ‘prove intent bias’ is unpersuasive at best.” Brief for Ms. Schoffstall at Ms. Schoffstall also sets forth her views concerning the assertedly improper motives of plaintiffs seeking financial experts. records defense id. at 12 (“The personal information, tax than other records of pay- counsel, ments made from merely gratuitous defense credibility, business, effort his impugn disrupt prevent him from offer desiring medical-legal ever again, services bully any potential expert offering witness from similar services.”).
Ms. Cooper, her denies the part, motives improper attributed to her her counsel Ms. and/or Rather, sought-after Schoffstall. she regards discovery as *12 response essential to a defense tactic of cultivating and witnesses,” employing “professional as well as the evasiveness of such in responding witnesses to legitimate inquiries con- defense, perspective every non-treatment for the are in almost in- Thus, by lawyer. stance asked to serve in role that the defense their inevitably ruling, service is Under "defense-related.” doctors engagements biased, subject being who take such will be to attack for simply they engaged compensated by because have been and Any performed defense. who has "defense related” work on more few potentially damaged goods, than a occasions becomes past earnings engagements because his from other must shown to adversary against as a routine screen bias. Appellant
Brief for at 16-17. de- financial entanglements extent of their cerning the of Dr. industry. In the case the insurance firms fense and/or presented excerpts that she highlights Eagle, Cooper Ms. involvement, for establishing his substantial Judge Lewis as for in examinations defense conducting years, at least thirteen firms, Ad- companies. and insurance attorneys, rehabilitation that, has acknowl- Eagle Dr. suggests although she ditionally, examina- for medical past payment that defense edged in income, he ticket item” in terms his “big represent tions seeking a answering questions been evasive frequently has monetary significance of the understanding more concrete litiga- him Cooper Ms. also references of these activities. Dr. has been Eagle vague suggest tion materials to concerning the raw questions in his responses inconsistent any given year. litigation-related of his ventures number Furthermore, excerpts demonstrate she maintains Dr. predictable findings employed by and conclusions damages personal injury or negate plaintiffs’ minimize actions.11 ample the above as an foundation Cooper regards
Ms. also question. She support discovery explore partiality discovery request highly her focused characterizes intrusive, implicate in that it does not unbridled minimally complete tax Eagle’s holdings, access to entire financial rather, returns, records, requires only but or medical office from federal 1099 received production of recent forms abili- Without the companies. defense firms insurance and/or bias, pattern alleged to obtain concrete evidence ty projects impeachment cross-examination is Cooper Ms. skilled, against experi- or likely to be unavailable ineffective who, that he she is safe knowing enced contradiction, may impunity. equivocate prevaricate with reasons, Cooper suggests Judge For Lewis these Ms. in approving discretion and restraint exercised sound Eagle's rejoinder excerpts presented is that the Ms. among gathered by process, and inconsistencies were selective degree the fact that the of his involvement answers are accounted years. providing litigation has over services varied *13 520 as the him
discovery, amply information before demonstrated “cause under the Rule 4003.5 he applied. shown” standard that however, Cooper argues,
Ms. also that a demonstration is an cause not essential prerequisite obtaining discovery collateral information related to an potential bias from witness under Rules of Civil Procedure. Consistent with Superior Court’s Ms. approach, Cooper Rule regards 4003.5 as only directed to trial preparation material and Rule containing 4003.1 as an independent grant authority subjects specifically by Rule covered 4003.5(a).
Ms. also Cooper Eagle’s differs with Dr. contention that the decisional closely law restricts concerning cross-examination the extent of an expert witnesses’ financial from remuneration defense firms and insurance It is companies. her position evidence that testimony may witness’s be colored or nearly bias self-interest is always and is of strong relevant probative impeachment value as v. evidence. Accord Primm Isaac, 630, (“No (Ky.2004) 127 S.W.3d intellectually honest argument can be ... made that activities as a defense expert bias.”). are not relevant for impeachment for In this regard, she highlights Pennsylvania decisions of courts that have See, defined- bias in broad terms. v. e.g., Grutski Kline, (“Whatever 401, 406, (1945) 352 Pa. 43 A.2d tends show the interest feeling in a cause competent by way of cross-examination.” (quoting Common Farrell, 408, 423, (1898))). wealth 187 Pa. 41 A. Further, Cooper Ms. takes issue Eagle’s reading the Superior way Court’s Mohn decision by of reference to subsequent permitted decisions that have broader questioning, such as the Cowan decision cited Superior Court. also Smith v. Celotex Corp., Pa.Super. A.2d 209 (1989) (finding, in personal action on injury grounded asbes exposure, tos no reversible error in the trial court’s decision to permit the defendant’s questioned medical to be about generated testimony fees on behalf of defendants cases). other asbestos Ms. indicates trial appellate courts exercise care imposing reasonable restric- protect expert’s of the disclosure to tions on extent *14 interests, here and in the as contends occurred she privacy case, the also Superior of Court in J.S. decision the analogous involving Eagle. Dr. in the Dr. terms of Eagle also with Cooper
Ms. differs first- differentiate between the tax records degree which testi- related to witness payments payments party Further, that that she suggests approach she the mony. plaintiffs retained evenly experts advocates applies Cooper Dr. also Eagle, like Ms. Finally, defendants alike. lines of jurisdictions of that contain references decisions other arguments. in her conformity are with reasoning general that See, Primm, 630; Wrobleski, 727 127 S.W.3d at e.g., matter, agree Judge
As a Lewis’s threshold we (and note judges, supra of other trial see position many all 6), scope Rule be read to the 4003.5 should restrict as in trial discovery experts from retained non-party witnesses Cooper are Superior the Court and Ms. preparation. While do not make this plain correct that the terms of Rule clear, the better practice limitation we believe channel into the Rule’s inquiries through collateral information 4003.5(a)(2). “cause shown” criterion. See Pa.R.Civ.P. No. Ms. tend to Notably, highlighted by even cases court involvement recognize need trial particularized in individual determining appropriate scope Wrobleski, (“The ized circumstances. A.2d at 938 permitted both at inquiry, allowance stages, trial should be trial court and tightly controlled limited to its The effect is to center discov purpose[.]”). ery on the issues and to reduce the intrusiveness and main permitting such additional forays, burden collateral while require inquiries justice may special the interests circumstances, discretion as determined within sound court. supervising The issue entails consideration remaining interpretive general there are boundaries should appropriate, whether define the range special circumstances that will support on supplemental discovery from the issue of arising favoritism the regular acceptance of compensation for work. medicolegal instance,
In the first it is to address necessary exist, Eagle’s argument that cause simply cannot since the financial information involved does not meet even the lower governing discovery namely, threshold generally, require ment that the request reasonably calculated lead admissible evidence. See Pa.R.Civ.P. No. 4003.1(a).12 As emphasizes, position regard finds substantial support holding Zamsky, 378 Pa. at 105 A.2d at where this Court found no rele *15 compensation vance of for collateral undertaken by activities witness expert through which he had received significant financial remuneration the from defendant. id. at See 105 A.2d at 336.
Zamsky’s reasoning is as follows. the Initially, Court ob- prior served that had approved decisions inquiries concerning expert the fees witnesses earned for in testifying the case at trial, that but those decisions did not fees concern earned for similar of types activities. See id. thus Having recognized that issue Court, the was one of first impression before the Zamsky resolved the is a question single, conclusory sentence: earnings “The witness other expert from services performed the were a purely defendant collateral matter testimony and the thereon was admissible to affect his credibility.” Id. There is no mention in of Zamsky the matter favoritism from arising substantial com- monetary pensation, nor is there consideration the any professional Wrobleski, phenomenon. witness A.2d Compare 727 at 932-34 (surveying decisional commentary law and beginning through 1800s and the continuing present reflecting the sub- stantial concern with grounding testimony the in general 12. While pertaining adherence to the standard certainly cannot be sufficient to establish additional “cause shown” 4003.5, agree under Rule we with Dr. it is an that essential prerequisite to cause. may financial incentives that be connected light oí the various Graham, H. Michael testimony). generally that with 21 Am. Expert Witness —Financial Impeachment Interest> (“The (2005) professional § of Facts Proof Jur. in litigation process.”). a of life the has become fact treatment, we depth Zamsky’s that there is little Given greatly should it the of decision that type do not regard adjustment, particularly constrain future consideration and/or Philadelphia v. range Ayala of cases. across broader Cf. (1973) Ed., 584, 606, 305 Pub. 453 Pa. Bd. of (“[T]he for perpetuat is not a doctrine of stare decisis vehicle error, to the concept responds a ing legal but rather which and, thus, orderly growth justice permits demands of flourish”). In we find particular, law to processes an adequate nothing Zamsky’s reasoning provides general recog disagreement proposition, basis for courts, “pattern compensation nized most other past possibility cases raises inference so he could be testimony witness has slanted these cases Corp., testify Wayne hired to in future cases.” Collins (5th Cir.1980).13 jurisdic those Notably, F.2d even of financial substantially tions that have limited recognize witnesses generally information information, hold that its they relevance of albeit inject undue burden production as matter of course would effect on may chilling into have expense litigation and/or 544; See, e.g., 644 So.2d participation experts. Syken, *16 Elkins, So.2d at 519.14 accord 672 above, comment, following, quoted the
13. To its the Collins court added perspective: salient (the testimony suggest expert has witness's] This does not that Court compensation he The by the has received. ever been influenced able, transcript analysis to be an Court's close of the reveals [him] Furthermore, engineer. recognize professional we that dedicated testimony is to the truth expert often essential witnesses furnish Nonetheless, ability seeking process. and dedication cannot insulate brings anyone suggestions out from the of bias a cross-examiner plays role in a trial. when he Collins, F.2d at 784 n. 5. case, well, Syken Notably, procedure as 14. as Florida delineated restrictive, although permits deposed as matter of to be aside, Zamsky we the agree with Court that it is Superior necessary to balance the respective interests involved to set (and the ultimately most suitable contours for ad- Primm, 632; missibility). Accord at Syken, S.W.3d 544; Jackson, Creighton So.2d at State ex rel. 879 S.W.2d hand, On one (Mo.App.1994). Ms. has an availability interest of opportunity some reasonable favoritism, inquire potential into the light issue of the already information that she has assembled concerning Eagle’s medicolegal experience at the developed behest attorneys defense the insurance industry. Eagle, and/or hand, on the other in being maintains an interest free from unduly intrusive and burdensome litigation obligations. Addi- tionally, we are cognizant of broader concern awith potential chilling courts, Dr. Eagle, effect which some have referred.
Therefore,
appropriate,
we believe
threshold
showing to establish cause for supplemental discovery related
to potential
of a non-party expert
favoritism
retained
witness
for trial
preparation is
reasonable
grounds
believe that
may
professional
witness
have entered the
catego
words,
ry.
In other
proponent
should
significant pattern
demonstrate a
of compensation that would
course, and,
effort,
questioning
permitted
in such
regarding
limited
Syken,
bias.
See
So.2d
Pennsylvania’s experience
scope
appropriate
with the issue of the
concerning
and cross-examination of
poten-
witnesses
jurisdictions
tial favoritism is not unlike that of other
that have come to
recognize
compensation
the relevance of substantial
time
over
from the
See,
Trower,
perspective
particular
e.g.,
of a
interest.
117 Ill.Dec.
(departing
In
the idea that the
lines
be
the least burdensome and intrusive kind
should
entry point, upon
that the
possible,
appropriate
we believe
cause,
interrogatories
showing
deposition by
written
vehicle,
Through
under Rule
Procedure 4004.
Civil
discretion,
subject
to the trial court’s exercise
its sound
discovery may
permitted
inquire
proponent
compensation
amount of
following:
approximate
case;
the character
expected
pending
received
activities, and,
particular,
litigation-related
witnesses’
specific types
litiga
percentage
devoted
approximate
class of
litigant,
tion
work on behalf of
particular
and/or
that,
Pennsylvania
Zamsky,
difficulty in
under
primary
15. The
has been
ability
litigants previously
unduly in their
have been constrained
along
simplest
accomplish the
cross-examination
these lines.
*18
litigant, attorney,
attorney
the number
organization;
of
and/or
examinations,
or
investigations,
inquiries
in a
performed
given
to
year,
up
years;
for
the
three
past
the number of instances
in
the
which
witness has
the
provided testimony within
same
period;
approximate
the
of
portion
the witness’s overall pro-
litigation-related services;
fessional work devoted to
and the
approximate amount of income each
year,
up
past
the
years, garnered
performance
three
from the
such
of
services.16
recognize
jurisdictions
While we
that some
have limited this
see,
form discovery
of
to exclude the income category,
e.g.,
Syken, 644 So.2d at
believe that
limited aspect
we
this
income information is
the fair scope
within
of relevance on the
Wrobleski,
question
potential favoritism. Accord
727 A.2d
(“If
at 938
there is a reasonable basis for a conclusion that the
may
witness,’
be a ‘professional
may
the party
inquire
...
into the amount of
earned in
past
income
the recent
witness[.]”).17
an expert
services as
juncture
will not
courts,
We
at this
the trial
foreclose
after an assessment of
interrogatory
the
responses,
upon
motion,
appropriate
from determining whether there is cause
further
support
supplemental
along the
lines of
what
approved
Judge
by
Lewis
this case.18 For
such
example,
might be
if
warranted
there is a
strong showing that the witness has been
evasive
untruth-
degree
expenses
16. To the
that the witness will incur
connected with
deposition,
the
the trial
appropri-
court has discretion to allocate costs
4003.5(a)(2),
ately,
expect
see Pa.R.Civ.P. No.
and we
would
questions
may
often
propounded
expert deponent
at a conve-
to.
regular place
nient time at his
of business.
inquiries
approved
portion
17. Wrobleski also
approximate
into the
medicolegal
total
witness’s
income derived from
services. See
Wrobleski,
Since find are we non- bias of trial on the issue of quate preparation than of production less burdensome party expert witnesses records, Superior orders of the Court financial personal to vacated, prejudice common court are without pleas and the discovery consis- court’s to authorize pleas ability common opinion. tent this is relinquished.
Jurisdiction CASTILLE, EAKIN, and Chief Justice CAPPY and Justice join opinion. BAER of in the decision this participate
Justice did not NIGRO case. concurring files a opinion.
Justice NEWMAN parties’ present dispute to whether or to resolve the as We decline Cooper’s previous deposi- excerpts Ms. similar submission Eagle’s inconsistency part or evasiveness on Dr. tions demonstrates incomplete by Ms. portrayal fashioned an selective constitutes complicated by character Cooper. determination is the informal Such unnecessary in case our of that submission and is rendered discovery, pursuit require of a avenue of to less burdensome decision cause, upon a threshold. as NEWMAN, concurring. Justice I agree with the Majority the Orders the Superior Dauphin Court and the County of Common Court Pleas must vacated, be but separately emphasize my write belief pursuing personal financial information of an expert wit- is, ness an exceptions, with few abuse the discovery process. Pennsylvania The Rules of Civil Procedure limit scope matter, “any not privileged, which is relevant subject matter the pending involved action....” Pa. Discovery R.C.P. No. 4003.1. testimony is limited to expert opinions “facts known and held by an ... or acquired ” developed anticipation of or litigation for trial.... Pa. 4003.5(a). R.C.P. No. As indicated by Majority, additional may be from an sought “upon cause However, shown.” cause shown is limited to “such restric- tions to scope provisions as and such concerning fees and as expenses the court may appropriate.” deem No. Pa.R.C.P. 4003.5(a)(2). Thus, the court discretionary trial has the au- thority expand of expert opinions “acquired developed anticipation litigation or for trial” cause upon or may permit shown reasonable inquiry about fees and expenses limited, “upon cause That shown.” discretion is as Majority noted showing cause. While may it generally for a appropriate party inquire whether witness offered particular field earns a significant portion or amount income from applying *20 expertise a forensic I setting, believe that the trial court abused its discretion and that Dr. Eagle being subjected to an inappropriate expedition personal into his and financial records.
The general expert belief is that testimony adds an aura of reliability the theories and proffered by claims the parties. Further, the proliferation programs of forensic in the media has jurors conditioned to expect testimony from in the experts of majority cases. The general trial to an strategy descends attack the credibility on expert witness diminish his or her the eyes effectiveness the fact finder and to enable opposing party expert’s] visor, “lift jury so that the [the
529 interest, was, represented, he he and what see who what [can] v. he of the trial.” Goodis Gimbel any, if had results (1966). 439, 574, In the Bros., 218 instant 420 Pa. A.2d required matter, subpoena took form of a this attack by forms [him] federal 1099 received Eagle produce “all firm in connection or law with any company from insurance examinations, prepara- medical medical/legal independent examinations, years depositions and for reports, tion Opinion, 2001.” Court Memorandum through (Superior 2.) of 1099s production the trial limited the While court page request proof through from 1999 period to the attorney or any company from insurance income received examinations depositions medical involving independent production is overbroad because unfettered during period forms involve Eagle’s pay- and all of Dr. could any no from insurance or other sources where companies ments involved, cases payments by attorneys or litigation It injury. payments could also reflect personal unrelated to companies for which attorneys from insurance testifying. not end up did Nora de Maryland Appeals
The Court of Wrobleski Lara, (1999), cited Md. inquire both by Majority, party may found that
approval in the recent past into the amount income earned approximate portion as an witness and into the services The total income from such service. witness’ derived add, however, important hastened to caveats: Court two First, our today we decision authorize do intend a wholesale through the harassment witnesses under personal of their financial records rummaging The allowance of seeking impeachment evidence. guise trial inquiry, stages, both at the permitted trial limited to tightly should be controlled court and expand and not into an unneces- purpose, permitted its are to the exposure of matters and data that sary personal credibility no to the of his and have real relevance witness Second, the that an testimony. or her fact of time to forensic activities or significant devotes a amount *21 earns a significant portion of income from those activities does not mean that the testimony given by the witness is honest, accurate, and credible. Id. at 938. I also would observe that the amount of an expert’s may income be irrelevant altogether because the more skilled the professional, the more specialized or more field, complex the or the greater expert’s professional acclaim or reputation, the more he or she can charge for their Thus, services. an expert earn a may substantial income from forensic or analytical services because he or she is a leader in the field and not because he or she will any serve master for a price.
This Court has recognized that
the level of a witness’s
compensation
a proper subject
is
of cross-examination, tending
to flush out any bias of the witness. v.
Zamsky
Public
Auth.,
Parking
Pa.
(1954);
905 A.2d A. TRIMMER Charles
v. APPEAL BOARD WORKERS’ COMPENSATION (MONAGHAN TOWNSHIP). Township. Monaghan
Petition Pennsylvania. Supreme Court of Aug. 3, 2006. ORDER PER CURIAM. NOW, August, this the Petition for day
AND
3rd
Additionally, as this Court
Appeal
granted.
is
Allowance
substituted its determina-
finds that
Commonwealth Court
credibility
and the
tion of the facts of
matter
Judge’s proper
as-
Compensation
for Workers’
witnesses
sessments,
Court
re-
judgment
the Commonwealth
versed,
Compensation
and the determination of Workers’
Compensation Appeal
Judge
as affirmed
Workers’
See,
v.
Md.
Roskowinski-Droneburg,
e.g.,
Araiza
(1996);
Fritz,
(Colo.Ct.App.2002); Syken
P.3d 539
Donelson v.
Elkins,
(Fla.Dist.Ct.App.1994).