|
|
|
THE IMPLICATIONS OF COOPER V. SCHOFFSTALL: DISCLOSURE OF A NONPARTY EXPERT WITNESS' FINANCES TO DEMONSTRATE BIAS
Samantha Kane, Esquire and Jonathan M. Field, Esquire
As a result of a recent Pennsylvania Supreme Court decision, a party may now obtain information concerning a nonparty expert medical witness's finances. Cooper v. Schoffstall. In Cooper, the Pennsylvania Supreme Court reversed the trial court (Dauphin County) and the Superior Court rulings that granted Plaintiff limited discovery of an IME doctor's federal 1099 tax forms. Plaintiff argued that the records would demonstrate bias because the doctor allegedly acted as a "professional witness" by performing 200 to 400 defense medical exams in recent years. On the other hand, the doctor argued that Plaintiff's efforts were a generic attempt to prove bias by improper means.
Acknowledging the validity of both parties' arguments, the Pennsylvania Supreme Court attempted to strike a balance by permitting disclosure only after a party has shown "reasonable grounds to believe that the witness may have entered the professional witness category." The Court recognized the relevancy of this evidence but wanted to prevent a possible "chilling effect" on a qualified experts willingness to testify, avoid increasing the burden, expense and delay on discovery of collateral issues and prevent any adverse effect on the defense of claims.
To accomplish these goals, the Pennsylvania Supreme Court concluded that the appropriate vehicle to obtain this information is via written interrogatories. The interrogatories should be tailored to address such issues as the amount of compensation received for the pending case or the percentage of time the witness devotes to certain types of litigation work on behalf of a certain class of litigants. The Court held that if the doctor's answers are overtly elusive, then disclosure of the doctor's 1099 forms may be permitted.
The Cooper decision has left certain issues open for debate. As the Special Rules of Practice and Procedure before Workers' Compensation Judges do not provide for interrogatories, it remains to be seen whether the workers' compensation claimant may obtain records per Rule 131.68, which provides a party the right to inspect certain records, or via subpoena, pursuant to Rule 131.81. Additionally, the decision does not address whether a defendant should be permitted to inspect the financial records of plaintiff's treating physician.
|
|
