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«JOEL FALIK, et al. v. JAMES HORNAGE, et al. No. 90 September Term, 2009 JOEL FALIK, et al. v. CLINT HOLTHUS, et ux. Bell, C.J. Harrell Battaglia ...»

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“That is why, especially with expert witnesses, ‘wide latitude must be given a cross-examiner in exploring a witness’s bias or motivation in testifying,’ [and,] in particular, ‘the crossexaminer must be given latitude to cross-examine a witness concerning any bias or interest the witness may have that would lead the witness to shade his testimony, whether, consciously or not, in favor of or against a party.’” Id. (quoting Ware v. State, 348 Md. 19,

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Id. at 517-18, 727 A.2d at 933-34.

We shall clarify and elaborate here our holding in Wrobleski. In Wrobleski, we considered the extent to which a professional medical witness may be questioned regarding his or her professional services income stream. Defense counsel, at trial, asked the plaintiff’s medical expert witness how much income he earned in one year from testifying as an expert.

The witness refused to answer and the plaintiff objected in support of the witness. The plaintiff did not object to questioning the witness as to income earned from testifying in other cases brought by plaintiff’s counsel, but asserted that any inquiry beyond that was irrelevant.

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Id. at 526, 727 A.2d at 938. In other words, “[t]he relevant question is not simply whether the witness frequently appears in court but whether the witness has some personal or financial incentive to produce a particular opinion.” Id. at 527 n.5, 727 A.2d at 938 n.5. We

highlighted two caveats to our holding, however. We cautioned:

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discretion in permitting cross-examination of an expert witness, but contends that the bounds of that discretion were exceeded in the present cases. He contends that Wrobleski held that before a party may inquire into the amount of income earned by an expert witness in the recent past from litigation services, the party first must establish that the witness is a “professional witness.” Appellant argues further that, assuming that he is a professional witness (yet not conceding this fact), the trial court abused its discretion because it ordered Dr. Falik to produce financial records. That was error, as the argument continues, because Wrobleski limited the inquiry to verbal inquiry only into the amount of income the witness earned in the recent past from forensic services or the approximate portion of the witness’s income derived from litigation services. Moreover, he worries that it may be burdensome for him to produce the information sought. Dr. Falik rejoins finally that sustaining the order of disclosure of the information sought in the present cases would precipitate a chilling effect and discourage other qualified physicians from serving as expert witnesses.

Holthus and Hornage argue that the documents ordered by the trial courts to be produced were within the scope of inquiries that this Court has held to be proper. Because Wrobleski held that a party may inquire into the amount of money that an expert witness earned from providing forensic services, Appellees believe that an opposing expert also may be compelled to produce documents directed at discovering that bias. In response to Dr.

Falik’s argument that the party seeking discovery must establish that the expert is a “professional witness” before it may inquire into his income from litigation-related services,

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argue further that the trial court’s orders do not authorize a wholesale rummaging through Dr. Falik’s financial records, which Wrobleski prohibited. In support of that contention, Appellees allude to the extensive confidentiality provisions in the order of the Circuit Court for Montgomery County and the limited scope of the information sought. Appellees urge that this is consistent with Wrobleski’s requirement that the allowance of the permitted inquiry was controlled tightly by at least one of the trial courts involved here.

In Maryland, the rules of discovery “were deliberately designed to be broad and comprehensive in scope.” Ehrlich v. Grove, 396 Md. 550, 560, 914 A.2d 783, 790 (2007).

Accordingly, that broad scope of discovery is described as allowing “[a] party [to] obtain discovery regarding any matter that is not privileged... if the matter sought is relevant to the subject matter involved in the action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.” Md. Rule 2-402.

Trial courts “‘are vested with a reasonable, sound discretion in applying [the discovery rules], which discretion will not be disturbed in the absence of a showing of its abuse.’” Ehrlich, 396 Md. at 560, 914 A.2d at 790 (quoting E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 405, 718 A.2d 1129, 1133-34 (1998)). Therefore, we consider the trial courts’ orders in the present cases under an abuse of discretion standard. Id. We explained the “analytical paradigm by which we assess whether a trial court’s actions constitute an abuse of discretion...,” Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405, 418, 914 A.2d 113, 121 (2007), in Wilson v. John Crane, Inc., 385 Md. 185, 198-99, 867 A.2d 1077, 1084

-16

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Id. (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 312-13, 701 A.2d 110, 118-19 (1997)).





Several courts have considered the issue of whether a trial court may compel an expert witness to produce potentially relevant income-stream financial records at the request of an opposing party. Although the courts and commentators may disagree on the outcome, many agree that the evidence may be relevant to the expert witness’s bias. See e.g., Sullivan v.

Metro North R.R. Co., 2007 U.S. Dist. LEXIS 88938, at *4 (D. Conn. 3 Dec. 2007) (“There is no question that the information sought by Sullivan is relevant to bias impeachment, and therefore, falls within the scope of permissible discovery....”); Behler v. Hanlon, 199 F.R.D. 553, 561 (D. Md. 2001) (“[N]o intellectually honest argument can be made that the information sought by plaintiff regarding [the expert’s] activities as a defense expert witness

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....”); Cooper v. Schoffstall, 905 A.2d 482, 494 (Pa. 2006) (“[E]ven those jurisdictions that have substantially limited discovery of financial information from expert witnesses, generally recognize the relevance of the information....”). Contra Douglas R. Richmond, Expert Witness Conflicts and Compensation, 67 Tenn. L. Rev. 909, 944 (2000) (“An expert’s income, whether expressed as gross or limited to his litigation-related activities, is irrelevant the overwhelmingly majority of the time. A party is unlikely to be prejudiced by its inability to obtain an expert’s tax returns or similar income information.”) Some courts permit an opposing party’s compelled production of an expert’s financial records, but only after the party seeking discovery first attempts to use a less intrusive method of discovery or shows that the expert has been evasive, untruthful, or is unable to provide an answer to the income question. For example, in Cooper, the Supreme Court of Pennsylvania was faced with an issue similar to the one we confront today. The plaintiff, seeking tax and other financial records, presented excerpts from the records of prior cases in which the expert witness had conducted independent medical examinations on the request of the defense and/or testified on behalf of a defendant. These documents were offered to show that the physician “derived substantial income from this work, and issued written reports containing repetitive, predictable, defense-favored observations and conclusions.” Id. at 485. The expert sought a protective order, which the court denied. The trial court entered an order directing confidential treatment of the information.

The Pennsylvania Supreme Court, citing our Wrobleski, held that a party could obtain

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for trial preparation” if there are “reasonable grounds to believe that the witness may have entered the professional witness category. In other words, the proponent of the discovery should demonstrate a significant pattern of compensation that would support a reasonable inference that the witness might color, shade, or slant his testimony in light of the substantial financial incentives.” 905 A.2d at 494-95. The court determined that the trial court did not abuse its discretion when it authorized discovery of the expert’s financial records. Id. at 495.

The court was sympathetic, however, to the expert’s contention that it was burdensome to find and produce the financial information sought. Therefore, the court determined “that the appropriate entry point, upon the showing of cause, is a deposition by written interrogatories....” Id. Through this, the court opined, the proponent of the discovery could inquire into, among other areas of possible bias, “the approximate amount of income each year, for up to the past three years, garnered from the performance of such services.” Id. At that point, further discovery, such as obtaining financial records, might be warranted “if[,] [for example,] there is a strong showing that the witness has been evasive or untruthful in the written discovery.” Id. at 496. See also Behler, 199 F.R.D. at 562 (“[T]here 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.”); Am. Family Mut. Ins. Co. v. Grant, 217 P.3d 1212, 1220 (Ariz. Ct. App. 2009) (“[I]f an expert is uncooperative or untruthful in responding to less demanding discovery requests, a trial court has discretion to permit more comprehensive discovery.”); Allen v. Superior Court of Contra

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abused its discretion when it failed to require a less intrusive method of discovery); Elkins v. Syken, 672 So.2d 517, 521-22 (Fla. 1996) (adopting the intermediate appellate court’s holding that “the production of business records, files, form 1099’s may be only produced upon the most unusual or compelling circumstances....”); Primm v. Isaac, 127 S.W.3d 630, 639 (Ky. 2002) (quoting Elkins, 672 So.2d at 521) (“If, after taking the deposition, a party can demonstrate that additional information is necessary to undertake reasonable bias impeachment, it may seek leave of court to take additional discovery. Further, should the trial court determine that the witness has not provided complete and unevasive answers to the deposition questions, or ‘has falsified, misrepresented, or obfuscated the required data, the aggrieved party may move to exclude the witness from testifying or move to strike the witness’s testimony....”); State ex rel Creighton v. Jackson, 879 S.W.2d 639, 643-44 (Mo.

Ct. App. 1994) (holding that the trial court did not abuse its discretion in permitting the discovery of the expert’s financial records where the party seeking discovery presented the trial court with evidence that in an unrelated deposition, the expert witness was unable to estimate his annual earnings from litigation activities). But see Ex Parte Morris, 530 So.2d 785, 789 (Ala. 1988) (holding that the prejudice to the non-party expert substantially outweighed the “incremental value that such information would provide respondent for purposes of showing bias....”).

Turning to the orders issued in the present cases, we conclude that the trial court in Holthus followed thoughtfully our guidance in Wrobleski to allow only a controlled inquiry

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from applying his or her expertise in a forensic nature and is thus in the nature of a “professional witness.” Although the Circuit Court for Montgomery County ordered Dr.

Falik to produce portions of his tax returns and related 1099 forms, it tailored the scope of the order to those portions which referenced any payment in connection with medical legal services and to a narrow sweep of contemporary time, the two years prior to the inquiry.

Similarly, the ordered production of 1099 forms was limited in scope to the proffered expert’s services as an expert witness or for work done at the request of the defendant’s insurance carrier, State Farm Insurance Company. As noted above, the trial court’s order also contained very specific confidentiality provisions to ensure that the information would not be disseminated to anyone beyond those individuals mentioned in the order. The document production ordered cannot be characterized fairly as a “wholesale rummaging” through Dr. Falik’s personal finances and financial records.

With regard to Hornage, we note that the defendant withdrew Dr. Falik as an expert in the case after the trial court issued its discovery order, but before the physician complied with the ordered discovery, thus rendering the discovery dispute moot. “A question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.” Attorney Gen. v. Anne Arundel County School Bus Contractors Ass’n, Inc., 286 Md. 324, 327, 407 A.2d 749, 752 (1979). There is some concern that the issue of this sort of discovery dispute may evade appellate review as a result of a party requesting overly broad financial

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case. We thus will comment on the order in Hornage for the limited purpose of comparing it with that in Holthus and illustrating what we otherwise would perceive to be an incorrect application of the trial court’s responsibilities as set forth in Wrobleski. Unlike the order in Holthus, the trial court in Hornage did not control tightly the scope of the desired inquiry consistent with what was allowed by Wrobleski. The order directed Dr. Falik to produce all income tax records from the previous three years, without limiting the records to those related to forensic services. Such an order more closely approximates a “wholesale rummaging” through Dr. Falik’s personal finances and is impermissible. Compliance with such an order would require an expert to turn over a multitude of sensitive financial records.



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