EVIDENCE

Supplemental Discovery • Favoritism of Expert Witnesses

Guffey v. Kyriazis, PICS Case No. 14-0192 (C.P. Lackawanna Feb. 3, 2014) Minora, J. (17 pages).

Where a party seeks discovery regarding the extent and nature of an opposing party’s expert witness’ litigation-related activities to determine whether the witness shows favoritism towards any side or type of litigant, supplemental discovery is proper where such discovery is aimed towards the discovery of admissible evidence. Denied.

Defendants brought this objection to plaintiffs’ request for supplemental discovery regarding the financial information and litigation-related activities of defendants’ medical expert witness, Dr. Fayyazi.

In denying defendants’ objections, the court noted that discovery is generally permissible of any matter related to the claim or defense of any party, where such discovery is reasonably calculated to lead to the discovery of admissible evidence. Specifically related to the issue of supplemental discovery concerning the question of potential favoritism of expert witnesses, the court cited the standard established by Cooper v. Schoffstall.

Under the Cooper standard, supplemental discovery of expert witnesses is generally permissible where there are reasonable grounds to believe that an expert witness is a professional witness, and the proponent of discovery must show a pattern of compensation that establishes that an expert witness favors a particular side or type of litigant. Cooper permits supplemental discovery to inquire into the character of the expert witness’ litigation-related activities, the volume of litigation-related work in a given year, the percentage of work devoted to specific types of litigation or on behalf particular classes of litigants or specific attorneys or law firms, and the amounts of income received from litigation-related work.

The court ruled that, in the present case, plaintiffs’ request for supplemental discovery was appropriately limited to the reasons and types of information established in Cooper. Plaintiffs contended that Dr. Fayyazi, as partner in a firm that specialized in providing legal medical examinations to insurers and their insureds, regularly testified on behalf of defendants in workers’ compensation and motor vehicle accidents and derived substantial income from litigation-related activities, and also regularly provided legal-medical services on behalf of defendants’ counsel. The court found that plaintiffs’ request arose from the concerns espoused in Cooper, and was properly limited by not seeking information such as information about referrals from attorneys, or seeking production of work product or communications with defense counsel related to the instant case.

The court also held that defendants failed to assert any argument why plaintiffs’ request did not meet the standards established by Cooper. The court also noted that defendants’ counsel had previously complied with an identical request for supplemental discovery in a separate, unrelated matter with substantial similar facts to the instant case; accordingly, the court found defendants’ objections unpersuasive.