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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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Furthermore, if the expert was married, that could mean that records stating his or her spouse’s joint income might be swept up in such broad discovery. It is true that such information could be redacted, as the trial court ordered in Holthus, but the trial court’s order in Hornage did not so contemplate. The order contained insufficient confidentiality provisions. It stated only that the “discovered material may only be used by counsel in this matter or in other legally related circumstances” and that “the use of the discovered material should not be vulnerable to wide-spread public dissemination.” The court did not define what a “legally related circumstance” might be nor did it define what constituted “widespread public dissemination.” Unlike the order in Holthus, the order in Hornage did not prevent disclosure of the information and did not allow for redaction of sensitive or identifying information. Such considerations are especially in play where such a broad

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discretion by failing to control tightly the inquiry sought there.

Dr. Falik contends, as noted earlier, that the “inquire into” language in Wrobleski authorizes only verbal inquiries and does not contemplate the compellable production of documents that support the verbal answers to the permitted verbal inquiries. He is wrong.

The production of limited financial documents, from a contemporary and finite period of time, that reflect payments made to the witness in connection with medical-legal services is permitted because, if the inquiring party does not have access to such records, yet is permitted to inquire orally into the witness’s income stream, the inquiring party will not be able to cross-examine effectively the expert witness. Civil trial practice in this area is not dependent on articles of faith; rather, corroboration is important. As the Missouri Court of Appeals noted, “a venal expert witness could not be expected to fully answer inquiries as to which the witness is not required to produce documentation.” State ex rel Lichtor v. Clark, 845 S.W.2d 55, 65 (Mo. Ct. App. 1992).9 If an inquiring party’s counsel is not allowed to view the records that purportedly support the expert’s answers to the permitted questions, then it must accept the expert’s answer without the opportunity to verify. We do not require blind trust without verification. A balancing of the expert witness’s privacy interests against the inquiring party’s ability to verify for effective cross-examination undergirds our decision.

It is not meant to require the expert to produce every supporting paper. The trial court’s There is no contention here that Dr. Falik was in any way suspected of being a “venal expert witness.”

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Appellant/Petitioner contends that Wrobleski established that the party seeking discovery must make a prima facie showing that the witness offered as an expert is a “professional witness” before it may demand the financial information allowed in Wrobleski.

As noted supra, we stated in Wrobleski that “[i]f there is a reasonable basis for a conclusion that the witness may be a ‘professional witness,’ the party may inquire both into the amount of income earned in the recent past from services as an expert witness and into the approximate portion of the witness’s total income derived from such services.” 353 Md. at 526, 727 A.2d at 938. In hindsight, that sentence does seem a bit circular in its expectation.

Being a professional witness ordinarily means being paid to give your opinion. If an individual is testifying as a non-treating medical expert, he or she, in the vast majority of cases, presumably is being paid to do so. More specifically to the instant cases, if a physician is paid to testify about someone who is not that physician’s patient under treatment, that witness is surely a “professional witness.”10 Following Dr. Falik’s theory, the party seeking discovery first must establish (by undefined criteria) that the witness is a “professional witness” before the party may be entitled to inquire into the witness’s income stream. That In a medical malpractice action, by statute, a health care provider who is offered as an expert witness, “may not devote annually more than 20 percent of the expert’s professional activities to activities that directly involve testimony in personal injury claims.” Md. Code, Cts. & Jud. Proc. § 3-2A-04(b)(4) (1974, 2006 Repl. Vol. & Supp. 2009). Thus, in a medical malpractice case, the amount of time that an expert spends testifying is indicative of whether he or she is a “professional witness.” Wrobleski established that income earned from forensic testimonial activities also is an appropriate area of inquiry for experts in other types of actions.

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is unlikely that a party could ever establish that a witness is a “professional witness,” without knowledge of the witness’s prior income from expert services gained from sources other than through discovery in the immediate case. Thus, there is here no separate prima facie burden of proving that a proffered non-treating medical expert witness is a “professional witness.” We are not unsympathetic to Dr. Falik’s concern that the discovery of the documents at issue in the present case may be seem to him to be an unwarranted invasion into his privacy. As previously noted, our decision here is the result of balancing a party’s need to discover reliable and relevant information in order to try properly its case and the witness’s expectation of privacy. We are confident, however, that leaving the implementation of our decision in the first instance with the sound discretion of the trial courts to control tightly the inquiry (with attendant confidentiality restrictions) will keep these sensitive records from being disseminated publicly. We note that attorneys, as officers of the court, have a duty to keep such records private, unless a court orders otherwise. See Maryland Rule of Professional Conduct 3.4(c) (“A lawyer shall not... knowingly disobey an obligation under the rules of the tribunal except for an open refusal based on an assertion that no valid obligation exists.”). We acknowledge also Dr. Falik’s argument that our holding in this regard might create a chilling effect on the willingness of qualified professionals to serve as expert witnesses in litigation-related contexts. Any concern we might share in that regard, however, is over-balanced by the need to create a context for effective cross-examination.

Moreover, we are confident that a trial court’s tight control over the process will restore to

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We note that simply because the material is discoverable, that does not mean that the evidence will necessarily be admissible at trial. The evidence will be admissible only upon a showing by the proponent that it is relevant. Md. Rule 5-402. As the court noted in Jackson, “[t]he information will be admissible only if it legitimately reflects on the objectivity of the expert.” 879 S.W.2d at 644 n1. Furthermore, it is within the court’s discretion to exclude even relevant evidence if the court determines that “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Md. Rule 5-403.

In his brief, Holthus refers several times to various transcripts of depositions of Dr.

Falik in separate, unrelated cases. Holthus apparently included these transcripts to show that Dr. Falik has “given conflicting answers in sworn testimony as to the amounts he earns serving as a professional witness.” Holthus included the transcripts as an appendix to his brief.

Dr. Falik filed in this Court a motion to strike related portions of Holthus’s brief and the Appendix that include and reference the transcripts on the ground that the deposition transcripts were not filed in the Circuit Court for Montgomery County, and, therefore, are not part of the record on appeal. Holthus concedes that the deposition transcripts are not part of the record that is before this Court. We grant Dr. Falik’s motion to strike those portions of Appellees’ brief and appendix to Appellees’ brief and shall assign the related portion of the costs to Holthus. See Md. Rule 8-607(b) (“When unnecessary material has been included in a record extract or appendix, the Court may order that the costs of reproduction be withheld, apportioned, or assessed against the attorney or unrepresented party who caused the unnecessary material to be included.”).

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