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Court looks at expert witness cross-examination

Chicago Daily Law Bulletin October 9, 2013

By Colin H. Dunn

Given the “prevalence of expert testimony in modern-day litigation” and the “difficulty of disproving an expert’s opinion testimony,” a party must be given latitude in cross-examining expert witnesses at trial. See Pontiac Nat. Bank v. Vales, 2013 IL App (4th) 111088, ¶ 17, citing Trower v. Jones, 121 Ill.2d 211, 217 (1988).

For instance, our Supreme Court has found it permissible to grill an expert on the amount and percentage of income that he generates from his work as an expert witness, the frequency with which he testifies as an expert and the frequency with which he testifies for a particular side, in order to expose any bias, partisanship or financial interest that may taint his testimony and opinions. See Trower, 121 Ill.2d at 217.

But cross-examining an expert cannot be a “free-for-all” because “unbridled cross-examination discourages reputable professionals from testifying during trial, making it difficult for parties to obtain the expert testimony necessary to meet their burden of proof.” Pontiac Nat. Bank v. Vales, 2013 IL App (4th) 111088, ¶ 17.

Therefore, the trial court must exercise its discretion to prevent expert witnesses from being harassed and limit any unfair invasion of their privacy. In Pontiac Nat. Bank v. Vales (a medical-malpractice case where the plaintiff needed expert testimony to establish the standard of care), the question for the court was whether the circuit court had properly drawn that line.

Over the plaintiff’s objection, the trial court permitted the defense to question the plaintiff’s expert about his annual earnings from expert witness services for an eight-year period (two years before the lawsuit was filed through the time of trial). In Trower, the Supreme Court did not set an outside limit on the number of years of earnings that can be discussed during the cross-examination of an expert to show financial interest, but found “no impropriety in inquiring into such income for the two years immediately preceding trial.” Trower, 121 Ill.2d at 218.

So the plaintiff contended that the trial court erred in allowing the defense to go beyond the two-years-before-trial time frame. The plaintiff also contended that it should have been allowed to rehabilitate the expert with evidence that he had been retained as an expert by the defendants’ law firm and that his earnings from providing expert testimony on behalf of physicians were lucrative.

The defendants argued that the plaintiff had waived its objections to the court’s rulings because the plaintiff’s attorney had elicited the expert’s earnings information during his direct examination of the expert. And, besides that, the decision was within the trial court’s discretion.

So the first issue for the court was whether the plaintiff’s decision to “front” the information resulted in waiver. The court found, however, that it did not. The trial court had denied the plaintiff’s motion to limit the inquiry on expert earnings to the two-year period prior to the trial. Immediately after the trial court issued its ruling, the plaintiff moved for a mistrial. That motion was denied. As the appellate court explained, “[a]t that point, the plaintiff had to choose between introducing information about [the expert’s] earnings during direct examination and allowing the defendants to elicit the information during cross-examination, thereby suggesting that the plaintiff was hiding information about its expert from the jury.” Pontiac Nat. Bank v. Vales, 2013 IL App (4th) 111088, ¶ 16.

Rejecting the defendants’ waiver argument, the court found that “[w]here the plaintiff’s exclusionary motion was denied and its anticipatory disclosure was designed to reduce the prejudicial effect of the evidence, the plaintiff did not forfeit its challenge to the evidentiary rulings.” Pontiac Nat. Bank v. Vales, 2013 IL App (4th) 111088, ¶ 16.

The court began its merits analysis by noting that, in a medical-negligence case, a jury must decide whether a defendant physician deviated from the applicable standard of care based upon the expert medical testimony adduced at trial. Citing Trower, the court agreed that permitting inquiry into the amount of income an expert witness has earned from expert services during the two-year period immediately preceding the trial would, under ordinary circumstances, serve the legitimate purposes for financial bias cross-examination.

And although the trial court has “leeway to reasonably extend the bounds of this type of cross-examination should the individual facts in a case so require,” the court found that the trial court’s decision to permit the defense to inquire into the expert’s earnings from expert testimony for the eight-year period prior to the trial (no reason was given by either the defendants or the trial court why it was necessary to go back in time that far) was a “clear abuse of its discretion.”

The trial court compounded its error when it denied the plaintiff an opportunity to rebut the defendants’ attacks on its expert with evidence showing that the defendants’ attorneys had retained the expert as a witness in several cases in the past.

Evidence that the opposing party’s attorney also employed the witness as an expert tends to rehabilitate the expert after the opposing party attacks the credibility of an expert in order to show that his testimony is tainted by bias, partisanship or financial interest. Shaheen v. Advantage Moving & Storage, Inc., 369 Ill.App.3d 535, 544 (2006).

By questioning the plaintiff’s expert witness about his earnings from expert services for an eight-year period immediately preceding the trial, arguing that the expert’s testimony and opinions were tainted by bias, partisanship and financial interest, the defense invited a rebuttal on those points. Because the trial court did not allow the plaintiff an opportunity to rebut the attacks and rehabilitate its witness, the plaintiff was unfairly prejudiced.

Finding that the erroneous rulings regarding the cross-examination and the rehabilitation of the plaintiff’s expert could reasonably have had an impact on the verdict, the court reversed the judgment for the defendants and remanded the case for a new trial.

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