Evidence that an expert witness is biased is highly relevant, and can often be the best means of debunking the testimony of a polished professional defense medical expert.
How, then, can a plaintiff obtain evidence of a defense expert’s bias? A plaintiff who desires this information has some options. The plaintiff could serve an interrogatory or request for production of documents upon the defendant for the information. But an adversative defendant might object to the request and take the position that it does not have the information in its possession. Alternatively (or in conjunction with discovery requests to the defense), the plaintiff could serve a subpoena upon the defense expert requesting the information. The defense might file a motion to quash the subpoena, however, arguing that it exceeds the scope of expert discovery because it is not limited to discovering facts known or opinions held by the expert. The defense might also argue that the relevant rules do not allow parties to discover information from each other’s experts by subpoena without leave of court.
It can be particularly difficult for a plaintiff to obtain information directly from a defense expert if the expert refuses to produce it. As a non-party, they faceless threat of sanction from the Court for discovery abuse. Refusal to respond to a subpoena can subject the expert to judicial sanction, but the resultant delay might nonetheless hamstring Plaintiff’s discovery efforts. One useful tactic is to serve targeted document requests to defense counsel seeking the info regarding the expert’s potential bias, and then promptly move the court to compel the defendant to answer the discovery upon grounds that the defense expert is their agent, and that he is under their control. Then, if the defendant fails to produce the requested information, the plaintiff can move to exclude the expert’s testimony as a sanction.
Alternatively, a plaintiff could serve a subpoena upon the defense expert for the
requested information, and then move the court for an order compelling production of the
information if the defense files a motion to quash, or if the expert refuses to comply with the
subpoena. The plaintiff could also ask the expert for this information during his deposition, and
move the court to order the defense expert to answer any and all questions that he refused to
answer during the deposition as a personal injury lawyer in Arlington, VA, like those at The Law Offices of Ryan Quinn, PLLC, can explain. If the defense expert refuses to provide the information through testimony and/or records, the plaintiff could move for sanctions against the defense expert, and also simultaneously move to exclude the expert’s testimony at trial on grounds that admission of the expert’s testimony would be unduly prejudicial.
