Every plaintiff’s lawyer has encountered the professional defense medical witness. These “experts” testify on a consistent basis and, if allowed to testify without impeachment, can be highly effective witnesses as they generally make polished, easily digestible presentations for jurors honed over years of practice. So how can this expertise and experience be overcome? One excellent way to do so is to obtain evidence in discovery regarding the expert’s prior work for the defense in an effort to show bias.
In a recent ruling, the Virginia Supreme Court examined whether, and to what extent, plaintiff’s counsel could cross-examine the defense’s expert witness regarding his prior financial relationship with the defendant’s insurer. Graves v. Shoemaker (Va. Dec. 10, 2020). The Court relied heavily on its previous decision in Lombard, 262 Va. at 490-91, where the court affirmed the the trial court’s decision to allow the plaintiff to cross-examine an expert who had been hired by the defendant’s insurance company on payments he had received from the company for testifying in previous cases (more than $100,000 per year for two years).
The central inquiry in determining whether the evidence should be admitted is “whether there is a substantial relationship between the witness and a particular insurance carrier that has a financial interest in the outcome of the case.” If the plaintiff can demonstrate a substantial relationship, “its probative value concerning potential bias or prejudice outweighs any prejudice to the defendant resulting from the jury’s knowledge that the defendant carries liability insurance.” Graves v. Shoemaker (Va. 2020).
The “substantial relationship” test looks beyond labels like insurer or defendant to analyze the reality of the underlying relationship in a commonsense manner. In Graves, the court held that an “insurer’s payment of a considerable sum of money to an expert for his prior testimony favorable to its insureds can be enough to establish a ‘substantial relationship’ on its own.”
Further, “the receipt of such a substantial amount by an expert is enough to create a potential for bias that outweighs any potential harm from the mention of insurance to a defendant. As we emphasized in Lombard, any potential prejudice to a defendant posed by the mention of insurance can be mitigated by giving a limiting instruction to the jury.” Id.
This is a potentially important ruling for plaintiff’s counsel and will prevent defense counsel from hiding beyond a mechanical distinction between the insurer and the party at trial, as the lawyers at the Law Offices of Ryan Quinn, PLLC, can explain. Contact a personal injury lawyer if you have any questions.
