Both actions involved Joel Falik, M.D., a neurosurgeon,
retained as a non-treating medical expert witness by defendants in both actions.
In both cases, plaintiffs filed notices of deposition duces tecum requesting
generally the following documents:
- Copies of Dr. Falik's 1090s received from law firms and insurance
companies that provided medical examinations and expert witness testimony on
behalf of plaintiffs and defendants;
- Dr. Falik's personal federal and state income tax returns for the past
five years;
- Dr. Falik's business federal and state income tax returns for the past
five years;
- Lists of depositions in which Dr. Falik had attended and had testified
in within the last three years and the amount of compensation he received
and by whom he was paid.
In both cases, Dr. Falik moved for a protective order.
Both trial courts ordered limited production of Dr. Falik's
financial records. Dr. Falik filed a notice of appeal to the Court of Special
Appeals. In one of the cases, the Court of Appeals on its own motion issued a
writ of certiorari. In a second case, Dr. Falik sought a writ of certiorari from
the Court of Appeals to consolidate the actions.
The Court of Appeals held that limited discovery of the
expert's financial records is permissible under the MD. RULES. The Court
explained that bias is one method of impeachment, and pursuant to MD. RULE
5-616(a)(4), it is well-established that bias of a witness is a proper subject
for impeachment. The fact that an expert witness is being paid to testify may
bear on his or her credibility and may be explored through cross-examination.
Dr. Falik argued that allowing document discovery of
financial records of an expert falls outside of the discovery rules. He
contended that based on prior case law, a party may inquire into the amount of
income earned by an expert received from past litigation services, but only if
the expert is established as a "professional witness."
The Court disagreed. The rules of discovery are designed to
be broad and comprehensive in scope. Accordingly, discovery is appropriate
regarding any matter that is not privileged and any matter that is relevant. As
evidence relating to the bias of an expert witness is certainly discoverable, an
expert's financial records fall within the scope of discovery.
Dr. Falik also argued that discovery of the financial
records impinged on his privacy. However, the Court noted here that both trial
courts tailored the scope of their orders to only portions that referenced
payment in connection with medical and legal services and only within the past
two years. Furthermore, the orders allowed the documents to be kept confidential
and labeled as such.
Accordingly, the Court made clear that financial records of
an expert witness are the proper subject of document discovery under the MD.
RULES OF EVIDENCE.
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