A Victim Can Obtain Information About a Defendant’s Expert’s Bias

In many personal injury cases, a verdict can turn on the use and effectiveness of expert witnesses. And more than any other type, the expert witnesses in personal injury trials are often doctors who provide testimony as to the nature, severity, and extent of someone’s injuries.

The Need for Expert Bias Discovery

While most victims will use their own doctors and have those doctors testify, defendants will often use outside, non-treating doctors, to provide testimony. Those doctors can’t provide an opinion based on treating the victim, because they’re not the victim’s doctor. But they can and often do render an opinion based on review of medical records, or even a one-time medical examination of the victim.

As you may imagine, many of these defense doctors are used repeatedly by bigger defense firms. Many are quite comfortable testifying in court, and many appear to render the same opinion over and over again, specifically, that the victim isn’t injured or isn’t injured as badly as the victim states that he or she is.

Allowable Bias Discovery

The law allows a jury to hear about the close relationship between these doctors and the law firms representing the defendants. That’s because our evidence code allows discovery of information related to bias.

The rationale is that if a doctor is receiving hundreds of thousands of dollars from a law firm, he or she is more likely to testify in that firm’s favor, in an effort to continue the stream of referral business. Thus, a jury may lessen the weight it gives to a doctor that receives huge money from the same law firm he’s testifying in favor of.

With some limitation, a victim’s attorney can ask how much business a doctor gets from a law firm, how many times the doctor has testified for the law firm, how much money the doctor has made from the law firm’s referrals, and how many times the doctor has testified in favor of the law firm.

Limitations on Bias Discovery

But there are limitations on what can be discovered from a defense expert. For example, evidence of what an expert earns in general (not just from the defendant’s law firm) is prohibited. A recent case determined that an expert should not have to disclose the amount of money a doctor makes from each and every insurance company.

The logic is that even though the doctor may lean towards a defendant’s side, the doctor is still a third party to the litigation—not a treating doctor—and thus, should not be subject to overly invasive financial discovery requests.

Additionally, while an expert may have to disclose the information about bias, the laws very much restrict the actual documents that the expert may need to produce. In other words, in many cases, a victim seeking to impugn the defendant’s expert, may have little ability to obtain documents to substantiate the expert’s answers.

If you’re injured, you want attorneys who understand how to combat every defense tactic, including use of expert witnesses. If you have been in an accident, talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.


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