Phoenix noted the de bene esse deposition of the medical expert, and Ms. Pfeifer requested from him, through a subpoena duces tecum, how much income he earned from the review of records, testimony at deposition or trial, forensic evidence, independent medical examinations, examinations conducted on any person who was not a patient, and research in connection with any forensic assignment, as well as documents relating to bias, including agreements with any insurance carrier relating to forensic activities or medical examinations on persons who are not patients and bills for work performed on behalf of Phoenix and Phoenix's counsel. The expert provided only his curriculum vitae and his expert report, and indicated that there were no further documents responsive to the request. A de bene esse deposition was then taken of the expert by Ms. Pfeifer.

Ms. Pfeifer moved to compel and to exclude this expert's testimony, while Phoenix moved for a protective order, neither of which were decided before trial. The trial court required the expert to attend a discovery deposition during trial and before his expected testimony. Further, the trial court ordered the expert to reveal how much income he had received for the previous five years from forensic activities, medical examinations and testimony as an expert; a history of all bills for forensic or medical activities on behalf of Phoenix for the past five years; and all records, reports or documents supplied to him for preparation of the case at hand. The expert, however, was not required to do so for other insurance companies.

At trial, Phoenix presented the de bene esse deposition of the medical expert to the jury and Ms. Pfeifer's counsel was permitted to read a portion of the medical expert's discovery deposition to the jury and to introduce the chart produced by the expert. The trial ended on July 31, 2008, and the jury returned a verdict in favor of Ms. Pfeifer in the amount of $100,000. The verdict, however, was reduced to $0.00 upon motion by Phoenix pursuant to MD. CODE ANN., INS. º 19-509(g)¹, due to the $100,000 which had already been received from the tortfeasor. The Court denied Ms. Pfeifer's motion for a new trial or additur. Ms. Pfeifer appealed and presented one issue for consideration, "whether the Circuit Court abused its discretion by permitting Phoenix to present the de bene deposition as evidence after Ms. Pfeifer had been deprived of the opportunity to cross-examine the expert as a result of his failure to comply with a properly issued subpoena duces tecum." Phoenix filed a cross-appeal asserting that Ms. Pfeifer's claim was barred by the statute of limitations. The Court of Special Appeals affirmed the Circuit Court ruling.

The Court of Special Appeals' opinion is instructive for two reasons. First, it sets the date when the statute of limitations begins to run on an Uninsured/Underinsured Motorist claim, which is, at the earliest, the date that the tortfeasor's liability policy is exhausted. The actual breach of contract, however, does not occur until the Uninsured Motorist carrier denies further coverage, so the statute of limitations might run at an even later date.

Second, the case provides some guidance on the type of information that a party can require an opposing expert to disclose. The Court of Special Appeals found that the information that the trial court required the medical expert to disclose was sufficient information to allow Ms. Pfeifer to elicit bias information, but reiterated that liberal discovery is not intended to harass an expert witness through a wholesale rummaging of his or her personal and financial records through the guise of seeking impeachment evidence. Attorneys can likely expect that there will now be a request for, at a minimum, this type of information from their experts, which trial courts in Maryland, in light of this opinion, may allow.

• 1 MD. CODE ANN., INS. § 19-509(g): Limit of insurer liability - The limit of liability for an insurer that provides uninsured motorist coverage under this section is the amount of that coverage less the amount paid to the insured, that exhausts any applicable liability insurance policies, bonds, and securities, on behalf of any person that may be held liable for the bodily injuries or death of the insured.