Falik v. HORNAGE

HARRELL, J. The two cases in this consolidated appeal arise from unrelated automobile negligence actions presenting a common procedural background birthing significant discovery disputes. In each case, the respective defendants designated, in pre-trial discovery, Dr. Joel Falik, M.D. (“Dr. Falik” or “Appellant”), a neurosurgeon, as a non-treating medical expert witness. The plaintiffs in each case each noted two-fold depositions of Dr. Falik: a “records deposition duces tecum” to be followed at a later date by a testimonial deposition.

The notices of records deposition duces tecum requested the physician to produce certain documents regarding his past services as a medical forensic expert witness. Dr. Falik filed motions for protective orders. The trial courts in each case issued orders directing Dr. Falik to produce at least some of the records sought. Dr. Falik sought immediate appellate review in both cases.

Falik v. Hornage On 4 February 2008, James Homage and Lora Ard Hornage (collectively, “Homage”) filed an amended complaint in the Circuit Court for Anne Arundel County alleging that they and their minor son were injured in an automobile accident ¹⁶⁹ caused by Heather Britt’s alleged negligence. 1 The defense designated Dr. Falik to conduct an independent medical examination of Ms. Homage. Homage thereafter issued a notice of a “records deposition duces tecum.” The notice sought information regarding the physician’s prior provision of forensic services. Dr. Falik filed a motion for a protective order in which he objected to several of the plaintiffs’ requests. Specifically, he objected to the requests for the following documents: • Copies of all of Dr. Falik’s 1099s received from Law Firms and Insurance Companies for providing medical examinations and expert witness testimony on behalf of Plaintiffs and Defendants for the last five (5) years. • An up-to-date list of all cases Dr. Falik has provided expert testimony for on behalf [sic] of either Plaintiffs or Defendants by way of trial, video, or deposition over the last five years.

This list is to include the name of the Plaintiff, name of the Defendant, the Plaintiffs attorney’s name and address, the defendant’s attorney’s name, address and phone number, the court location, case number, and the date of said testimony • Dr. Falik’s personal Federal and State Income Tax Returns for the past five (5) years. • Dr. Falik’s business Federal and State Income Tax Returns for the past five (5) years. • A list of all cases wherein Dr. Falik was retained by the defendant’s law firm within the last three years to perform medical examinations. • A copy of Dr. Falik’s calender that reflects appointments for defense related medical examinations, defense video tapped [sic] depositions, and occasions where the doctor testified live in any court for any defendant in a personal injury and workers compensation matter. ¹⁷⁰ The Circuit Court held a hearing on the motion, ultimately granting the motion in part and denying it in part. Memorializing its decision, the trial court issued the following order on 28 August 2008: • Doctor Falik will provide Plaintiffs counsel all of his income tax records from the last three (3) years to include all 1099 forms and W-2 forms that are related to medical employment, and any other attachments, and all other income tax records which pertain to any medically related employment and ownership interest Doctor Falik has which receives monies from insurance companies or law firms for the purpose of conducting medical examination on injured persons who are pursuing claims for personal injuries. • Doctor Falik will provide Plaintiff with a list of any and all depositions Doctor Falik has attended and any and all times he has testified at trial within the last three (3) years to include the name of the case, case number, name of the patient examined, name, address, and phone number of the attorneys involved, and the amount of compensation Doctor Falik was paid, and by whom. • Doctor Falik will provide Plaintiff with any lecture materials or other materials he has provided to any group that he has lectured to within the last three (3) years that relate to the medical condition(s) in issue. • Doctor Falik will provide Plaintiff with a list containing the total number of persons Doctor Falik has examined at the request of any defense attorneys or insurance company in any personal injury litigation case for the last two (2) years. • Doctor Falik will provide Plaintiff with copies of any and all advertisement materials and promotional materials which reflect the services Doctor Falik has offered to any attorney or insurance company. • Doctor Falik will provide Plaintiff with a list containing the total number of persons he has examined at the ¹⁷¹ request of any defense attorneys or insurance company in any personal injury litigation in the last two (2) years. • Doctor Falik will provide Plaintiff with copies of any and all documents that reflect the amount of money that Doctor Falik has been paid for defense medical examinations in the years 2006, 2007, and 2008. • Doctor Falik will provide Plaintiff with a list of all cases Doctor Falik was retained by any insurance carrier and by any of Defendant’s attorneys and their respective law offices. The order provided also that the “discovered material may only be used by counsel in this matter or in other legally related circumstances.” In a footnote, the trial court noted that, although Dr. Falik did not supply the court with “specific details of the requested protective order for limitation on the discovered material, this Court is persuaded that the use of the discovered material should not be vulnerable to widespread public dissemination.” On 29 September 2008, before the initial deposition could be taken, Dr. Falik filed a notice of appeal to the Court of Special Appeals. 2 In his brief filed 20 May 2009, Dr. Falik complained that the trial court erred as a matter of law and abused its discretion when it ordered him to produce the financial records it ordered. This Court, on its own motion, issued a writ of certiorari on 17 June 2009, prior to decision of the appeal by the intermediate appellate court. 409 Md. 46 , 972 A.2d 861 (2009). ¹⁷² Falik v. Holthus On 18 January 2008, Clint and Julia R. Collins-Holthus (collectively, “Holthus”) filed in the Circuit Court for Montgomery County a complaint against Gilberto Martinez alleging that they were injured in an automobile accident that occurred allegedly as a result of Martinez’s negligence.

Martinez designated Dr. Falik, the same expert that the defendant in Homage designated, as a non-treating medical expert witness. Holthus filed a “notice of records deposition duces tecum,” to be followed by a testimonial deposition, seeking information relating to Dr. Falik’s prior services as a forensic expert witness. Dr. Falik filed a motion for protective order in which he objected to the following duces tecum requests: 10. Copies of all 1099 forms and/or those portions of the deponent’s income tax returns for the last 2 years referencing any payments made to the depoponent(s) [sic] in connection with medical-legal services.

(Other portions of the tax returns relating to professional expenses, other earned or unearned income and deductions are not requested) * * * 13. Any documents showing the amounts paid to Joel Falik, M.D. for independent medical examinations performed by Joel Falik, M.D. in 2006 and 2007/[ 3 ] 17. All 1099s for the past two years for work done by deponent(s) at the request of or paid by [defense counsel’s law firm] or any lawyer in that office including, but not limited to, [defense counsel]/[ 4 ] ¹⁷³ 18. All 1099s for the past two years for work done by the deponent(s) at the request of or which was paid by any State Farm Insurance Company. 19.

A list of all cases on which the deponent(s) has worked for the past two years for [defense counsel’s law firm] or any lawyer in that office including, but not limited to, [defense counsel]. 20. A list of all cases on which the deponent has worked for the past two (2) years for State Farm Insurance Company. Holthus filed an opposition to the motion, but indicated that they would consent to a confidentiality order for the protection of Dr. Falik’s privacy. The trial court held a hearing on 28 April 2009 and thereafter issued an order in which it granted in part and denied in part the physician’s motion.

The order directed Dr. Falik to produce the items listed in requests # 10 and # 18, but limited the requests to the years 2007 and 2008. The court denied the motion with respect to requests # 13 and # 17. 5 The order also contained the following limitations that addressed Dr. Falik’s privacy concerns: 1. Dr. Falik may redact all identifying information from the documents produced, such as social security numbers and tax identification numbers. 2. Dr. Falik may mark/stamp all produced financial documents “CONFIDENTIAL.” 3.

For purposes of this case only, all confidential financial documents pertaining to Dr. Falik provided to Plaintiffs counsel may be reviewed only by counsel, counsel’s staff, the parties, and any expert in this case. 4. Any and all confidential financial documents produced by Dr. Falik shall not be photocopied, scanned, repro ¹⁷⁴ duced or disseminated in any way to anyone, other than counsel in this case, the parties or any expert, and may not be utilized outside of this case. These confidential financial documents and all copies thereof will be returned to Dr. Falik’s counsel by Plaintiffs counsel within thirty (30) days of a final judgment or settlement of this case. Any expert or party who receives or views confidential financial documents regarding Dr. Falik shall agree in writing before receiving or reviewing same to abide by this Order and an executed copy of each such agreement shall be provided to counsel for Dr. Falik by counsel for Plaintiffs promptly upon the execution thereof. 5.

Any confidential documents produced pertaining to Dr. Falik shall not be posted on the Internet, emailed, disseminated or communicated to any person or to any email list-serve or any similar such group or organization. Dr. Falik and Martinez, apparently aggrieved by the trial court’s only qualified favor found in the motion for protective order, filed timely separate notices of immediate appeal to the Court of Special Appeals. They complained in their briefs that the trial court erred as a matter of law and abused its discretion when it ordered Dr. Falik to produce the limited financial records it did. While that case was pending in the intermediate appellate court, but before arguments could be held, Dr. Falik filed in this Court a petition for a writ of certiorari, 6 pointing out the common issue assumedly presented in Homage, for which we had issued already a writ of ¹⁷⁵ certiorari.

We granted the petition, 410 Md. 559 , 979 A.2d 707 (2009), and consolidated Holthus with Homage. Discussion I. Martinez’s Right to Appeal At the outset, we address Holthus’s contention that Martinez, the defendant in Holthus, may not be an appellant in this matter. Holthus argues that the trial court’s order was not a final judgment with regard to Martinez as a defendant and, because it does not fall within any exceptions to the final judgment rule, Martinez must wait for a final judgment before he may appeal the order. Generally, “ ‘a party may appeal only from a final judgment.’ ” St. Joseph Med.

Ctr., Inc. v. Cardiac Surgery Assocs., 392 Md. 75, 84 , 896 A.2d 304, 309 (2006) (quoting Nnoli v. Nnoli, 389 Md. 315, 323 , 884 A.2d 1215, 1219 (2005)). See also Md.Code, Cts. & Jud. Proc. § 12-301 (1974 & 2006 RepLVol.) (“[A] party may appeal from a final judgment entered in a civil or criminal case by the circuit court.”). There are, however, three well-identified, but infrequently sanctioned, limited exceptions to the final judgment rule which permit appellate review before a final judgment has been rendered.

St. Joseph, 392 Md. at 84 , 896 A.2d at 309 . The exceptions are: “ ‘appeals from interlocutory orders specifically allowed by statute; immediate appeals permitted under Maryland Rule 2-602;[ 7 ] and appeals from interlocutory ¹⁷⁶ orders allowed under the common law collateral order doctrine.’ ” 392 Md. at 84 , 896 A.2d at 309 (quoting Salvagno v. Frew, 388 Md. 605, 615 , 881 A.2d 660, 666 (2005)). Martinez does not contend that his appeal fits within any of the exceptions to the final judgment rule. Rather, he argues that Dr. Falik is the real party in interest in this case and, thus, the issue is not whether Martinez has the right to maintain his own appeal pursuant to the final judgment rule or its exceptions, but, whether Martinez has the right to join in the appeal maintained by Dr. Falik by virtue of Martinez’s abundant interest in the outcome of the appeal.

In St. Joseph, a non-party to the underlying suit filed an interlocutory appeal from the trial court’s refusal to grant a protective order from discovery in favor of the non-party. We held that the order was appealable, not under any of the exceptions to the final judgment rule, but because the order was a final judgment as to the non-party. 392 Md. at 88-89 , 896 A.2d at 312 . We reasoned that because the third person was not a party to the case, it would not have standing “to challenge the discovery order by appealing from a final judgment in that case.” Id. at 88 , 896 A.2d at 312 . Thus, “analytically, it is a final judgment with respect to that appellant.” Id. at 90 , 896 A.2d at 313 .

Therefore, it is pellucid that, all other things being equal, Dr. Falik possessed a right to appeal from the orders entered in the present cases. That conclusion does not mean, however, that Martinez has a right to appeal the order under his theory that he may “tag along” in Dr. Falik’s appeal. There is no statutory authority permitting an interlocutory appeal of a discovery order of this nature, nor is this appeal permitted under Rule 2-602. Thus, the only circumstance that would permit Martinez’s appeal at this time is the collateral order doctrine.

The collateral order doctrine ¹⁷⁷ treats as final and appealable interlocutory orders that (1) conclusively determine the disputed question; (2) resolve an important issue; (3) resolve an issue that is completely separate from the merits of the action; and (4) would be effectively unreviewable on appeal from a final judgment. The collateral order doctrine is a very narrow exception to the final judgment rule, and each of its four requirements is very strictly applied in Maryland. In particular, the fourth prong, unreviewability on appeal, is not satisfied except in extraordinary situations. St. Joseph, 392 Md. at 86 , 896 A.2d at 310 (quoting Nnoli, 389 Md. at 329 , 884 A.2d at 1223 ) (internal citations and quotation marks omitted)).

In the instant case, Martinez and Dr. Falik are challenging an interlocutory discovery order. It is well established in Maryland that generally “interlocutory discovery orders do not meet the requirements of the collateral order doctrine and are not appealable under that doctrine.” Id. at 87, 896 A.2d at 311 . Interlocutory discovery orders are not appealable because most do not comply with the third requirement of the collateral order doctrine, as they generally are not completely separate from the merits of the lawsuit. Instead, a typical discovery order is aimed at ascertaining critical facts upon which the outcome of the ... controversy might depend.

In addition, discovery orders fail to meet the collateral order doctrine’s fourth element, as they are effectively reviewable on appeal from a final judgment. Id. (citing In re Foley, 373 Md. 627, 635 , 820 A.2d 587, 592 (2003) (internal citations and quotation marks omitted)). The “singular circumstance” in which an interlocutory discovery order is reviewable on appeal under the collateral order doctrine “involves trial court orders permitting the depositions of high level governmental decision makers for the purpose of ‘extensively probing ... their individual decisional thought processes.’ ” Id. at 88, 896 A.2d at 311 (quoting Montgomery County v. Stevens, 337 Md. 471, 479 , 654 A.2d 877, 881 (1995)). ¹⁷⁸ The order in Holthus clearly does not fall within that category.

Thus, we dismiss Martinez’s appeal. 8 II. Discovery of a Non-Treating Medical Expert’s Financial Records Obviously, a party has a strong interest in the fact-finder’s assessment of the credibility of its expert witnesses. For the opposing party it is equally important to have the ability to search for legitimate evidence to impeach the credibility of those witnesses. Bias is one method of impeachment and “[i]t is well established that the bias, hostility or motives of a witness are relevant and proper subjects for impeachment.” Pantazes v. State, 376 Md. 661, 692 , 831 A.2d 432, 450 (2003).

See also Md. Rule 5-616(a)(4) (“The credibility of a witness may be attacked through questions asked of the witness, including questions that are directed at ... [p]roving that the witness is biased, prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsely.”). “Bias describes ‘the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party.’ ” Pantazes, 376 Md. at 692 , 831 A.2d at 450 (quoting United States v. Abel, 469 U.S. 45, 52 , 105 S.Ct. 465, 469 , 83 L.Ed.2d 450, 457 (1984)). It is well established that the fact that an expert witness is being paid to testify may bear on his or her credibility and may be revealed through cross-examination. Goldberg v. Boone, 396 Md. 94, 116 , 912 A.2d 698, 711-12 (2006); Wrobleski v. de Lara, 353 Md. 509, 518 , 727 A.2d 930, 934 (1999); Mezzanotte Constr. Co. v. Gibons, 219 Md. 178, 181 , 148 A.2d 399, 401-02 (1959).

Thus, “an expert witness may be questioned on cross-examination about compensation received for testifying, as well as about the expert’s history of employment as an expert witness, in order to reveal bias or interest in the outcome of the proceeding.” Goldberg, 396 Md. at 116 , 912 A.2d at 710-11 . ¹⁷⁹ “Expert opinion testimony can be powerful evidence.” Wrobleski, 353 Md. at 517 , 727 A.2d at 933 . An expert’s testimony “can have a compelling effect [on] a jury.” Id. “That is why, especially with expert witnesses, ‘wide latitude must be given a cross-examiner in exploring a witness’s bias or motivation in testifying,’ [and,] in particular, ‘the cross-examiner must be given latitude to cross-examine a witness concerning any bias or interest the witness may have that would lead the witness to shade his testimony, whether, consciously or not, in favor of or against a party.’ ” Id. (quoting Ware v. State, 348 Md. 19, 67 , 702 A.2d 699, 722 (1997)). We described in Wrobleski the methods through which an erstwhile cross-examiner may expose the potential bias of an expert witness: Exposure of potential bias based on self-interest is often attempted through cross-examination directed at how much the witness is being paid for his or her services in the case at bar, the frequency with which the witness testifies in similar kinds of cases, whether the witness is frequently employed by a particular type of party (usually plaintiff or defendant), whether the witness is frequently employed by a particular party or attorney and, if so, how much income the witness derives from that employment, and, as in this case, the amount or the percentage of the witness’s total income that is derived from lawyer referrals or testimony in lawsuits.

Some forms of inquiry seek to uncover a specific and enduring relationship between the witness and the party or attorney, from which a direct bias may be inferred. Others are directed at exposing the more subtle problem of the professional “hired gun,” who earns a significant portion of his or her livelihood from testifying, and rather than having a tie to a specific party or attorney, may have a general economic interest in producing favorable results for the employer of the moment. Id. at 517-18 , 727 A.2d at 933-34 . We shall clarify and elaborate here our holding in Wrobleski .

In Wrobleski , we considered the extent to which a ¹⁸⁰ professional medical witness may be questioned regarding his or her professional services income stream. Defense counsel, at trial, asked the plaintiffs medical expert witness how much income he earned in one year from testifying as an expert. The witness refused to answer and the plaintiff objected in support of the witness. The plaintiff did not object to questioning the witness as to income earned from testifying in other cases brought by plaintiffs counsel, but asserted that any inquiry beyond that was irrelevant.

The trial court allowed the defense question. Id. at 512 , 727 A.2d at 931 . We held that it was not error to do so and that it is generally appropriate for a party to inquire whether a witness offered as an expert in a particular field earns a significant portion or amount of income from applying that expertise in a forensic setting and is thus in the nature of a “professional witness.” If there is a reasonable basis for a conclusion that the witness may be a “professional witness,” the party may inquire both into the amount of income earned in the recent past from such services as an expert witness and into the approximate portion of the witness’s total income derived from such services. Id. at 526 , 727 A.2d at 938 .

In other words, “[t]he relevant question is not simply whether the witness frequently appears in court but whether the witness has some personal or financial incentive to produce a particular opinion.” Id. at 527 n. 5, 727 A.2d at 938 n. 5. We highlighted two caveats to our holding, however. We cautioned: First, we do not intend by our decision today to authorize the harassment of expert witnesses through a wholesale rummaging of their personal and financial records under the guise of seeking impeachment evidence. The allowance of the permitted inquiry, both at the discovery and trial stages, should be tightly controlled by the trial court and limited to its purpose, and not permitted to expand into an unnecessary exposure of matters and data that are personal to the witness and have no real relevance to the credibility of his or her testimony.

Second, the fact that an expert devotes a significant amount of time to forensic activities or earns a ¹⁸¹ significant portion of income from these activities does not mean that the testimony given by the witness is not honest, accurate, and credible. It is simply a factor that is proper for the trier of fact to know about and consider. Id. at 526 , 727 A.2d at 938 . Dr. Falik argues here that the Wrobleski holding does not include within its scope the production of an expert witness’s financial records.

He agrees that the trial court has wide discretion in permitting cross-examination of an expert witness, but contends that the bounds of that discretion were exceeded in the present cases. He contends that Wrobleski held that before a party may inquire into the amount of income earned by an expert witness in the recent past from litigation services, the party first must establish that the witness is a “professional witness.” Appellant argues further that, assuming that he is a professional witness (yet not conceding this fact), the trial court abused its discretion because it ordered Dr. Falik to produce financial records. That was error, as the argument continues, because Wrobleski limited the inquiry to verbal inquiry only into the amount of income the witness earned in the recent past from forensic services or the approximate portion of the witness’s income derived from litigation services. Moreover, he worries that it may be burdensome for him to produce the information sought.

Dr. Falik rejoins finally that sustaining the order of disclosure of the information sought in the present cases would precipitate a chilling effect and discourage other qualified physicians from serving as expert witnesses. Holthus and Homage argue that the documents ordered by the trial courts to be produced were within the scope of inquiries that this Court has held to be proper. Because Wrobleski held that a party may inquire into the amount of money that an expert witness earned from providing forensic services, Appellees believe that an opposing expert also may be compelled to produce documents directed at discovering that bias. In response to Dr. Falik’s argument that the party seeking discovery must establish that the expert is a “professional witness” before it may inquire into his income from ¹⁸² litigation-related