Wrobleski v. De Lara

WILNER, Judge. This is a medical malpractice case. Linda Wrobleski claimed that Nora de Lara negligently damaged Ms. Wrobleski’s small intestine during a laparoscopic procedure performed by Dr. de Lara on June 6, 1994. That damage led to significant complications, resulting in a lot of pain to Ms. ⁵¹² Wrobleski and the need for two corrective surgeries.

A jury in the Circuit Court for Baltimore City found no negligence on Dr. de Lara’s part, and from the judgment entered upon that verdict, Ms. Wrobleski appealed. The Court of Special Appeals affirmed. Wrobleski v. de Lara, 121 Md.App. 181 , 708 A.2d 1086 (1998). We granted certiorari to consider whether the trial court erred in allowing defense counsel to question one of Ms. Wrobleski’s medical expert witnesses as to how much money the witness had earned in 1995 from testifying as an expert.

We agree with the Court of Special Appeals that there was no error in permitting the question. BACKGROUND The facts underlying the claim of negligence are not especially important in terms of the single issue before us and may be quickly summarized. As the result of complaints of pain in the pelvic area and other symptoms exhibited by Ms. Wrobleski, Dr. de Lara performed a laparoscopy, to examine the pelvic area. During the laparoscopy, Dr. de Lara found a number of adhesions in Ms. Wrobleski’s abdominal cavity.

Part of the omentum—a fatty apron that covers the front part of the abdominal wall—had adhered both to the abdominal wall and to part of the small intestine. Dr. de Lara removed the adhesions with a pair of surgical scissors. It is undisputed that some damage was done to the small intestine during that removal. Whether through an actual puncture or as the result of necrosis arising from other trauma, a perforation occurred, which allowed contents of the intestine to leak into the abdominal cavity.

That is what created at least some of the ensuing pain, an infection, and the need for corrective surgery. The experts disagreed both as to what caused that perforation and as to whether the perforation resulted from negligence on Dr. de Lara’s part. The two medical experts who testified for Ms. Wrobleski—Drs. Battle and Lilling—asserted that Dr. de Lara was negligent, although for somewhat different reasons.

The three medical experts who testified for Dr. de Lara concluded that there was no negligence—that Dr. de Lara’s conduct was within the ⁵¹³ appropriate standard of care and that the perforation was not the result of negligence on her part. The issue of negligence, in other words, involved a classic disagreement among the experts. When Dr. Battle—the first expert—was called, defense counsel elicited, without objection, that the witness had testified some 50 to 60 times for medical malpractice plaintiffs, that about 25 of those appearances had been for clients of Mr. Ellin, who served as Ms. Wrobleski’s attorney, and that, in the preceding twelve months, Dr. Battle had earned between $30,000 and $50,000 from testifying as an expert, which amounted to about 15% of his income. Most of those earnings, he said, were derived from Mr. Ellin’s cases.

Dr. Battle stated that about 80% of his appearances had been on behalf of plaintiffs. To blunt the unfavorable implications from that testimony, Mr. Ellin brought out that, in about half of the cases Dr. Battle reviewed for him, the doctor opined that there was no malpractice and that, to the best of Dr. Battle’s knowledge, Mr. Ellin did not take those cases. What provoked this appeal was a similar effort directed at Dr. Lilling. It appears that, during Dr. Lilling’s pretrial deposition, the doctor disclosed how much he had been paid by Mr. Ellin for his services in the Wrobleski case and stated that the total amount he earned from testifying as an expert witness was less than 20% of his total income, but he refused to reveal the total amount of income he received from testifying as a witness. 1 At trial, counsel asked Dr. Lilling whether ⁵¹⁴ he was prepared to tell the jury how much he made in 1995 from testifying as an expert, and the witness again refused.

The basis of his reticence seemed to be his belief that, having stated that less than 20% of his income was derived from his services as a witness, disclosure of the amount of that income would be tantamount to revealing his gross income, which he said was none of counsel’s business. 2 Ms. Wrobleski objected to questioning Dr. Lilling about the total income he received from testifying. She had no objection to questioning the witness as to income earned from Mr. Ellin but asserted that any inquiry beyond that was irrelevant. The court overruled the objection but did not require Dr. Lilling to answer the question. Once again, the question was put whether the witness was willing to disclose the information, and once again the witness declined.

He did reveal that he had earned $27,000 from Mr. Ellin’s cases in 1995. Relying principally on an intermediate appellate decision from Pennsylvania, Ms. Wrobleski asserts that allowance of the unanswered question was error. She attributes the unfavorable jury verdict to that question, contending that the only reason the jury could have for ignoring her injuries was its belief that Dr. Lilling was trying to hide something from it. In light of the other evidence in the case, that causal connection is tenuous at best, but we shall accept it for purposes of this appeal. ⁵¹⁵ DISCUSSION Although expert witnesses play a vital, indeed a necessary, role in the trial of certain cases, the law, both here and in England, has long viewed their procurement by, and appearance on behalf of, parties to the litigation with some misgiving.

As long ago as 1858, the Supreme Court noted that “opposite opinions of persons professing to be experts, may be obtained to any amount.” Winans v. New York & Erie Railroad, 62 U.S. (21 How.) 88, 101 , 16 L.Ed. 68, 71 (1858). In his 1864 treatise on Evidence, Judge Taylor observed: “Perhaps the testimony which least deserves credit with a jury is that of skilled witnesses. These gentlemen are usually required to speak, not to facts, but to opinions; and when this is the case, it is often quite surprising to see with what facility, and to what an extent, their views can be made to correspond with the wishes or the interests of the parties who call them.” John P. Taylor, A Treatise on the Law of Evidence as Administered in England and Ireland, 4th ed. (1864), § 50 at 72 (emphasis in original).

Writing in 1893, Professor Charles Himes quoted Taylor’s statement and added his own view that expert witnesses “are selected on account of their ability to express a favorable opinion, which, there is great reason to believe, is in many instances the result alone of employment and the bias growing out of it.” 135 J. Franklin Inst, at 409 (1893). In an 1897 address to the New Hampshire Medical Society, Expert Testimony-Prevalent Complaints and Proposed Remedies, reprinted in 11 Harv. L.Rev. 169 (1897), Judge William Foster, though disagreeing with Professor Himes’s general inference of bias, nonetheless recognized, even then, that “[t]his ‘bias,’ or inclination in favor of the party by whom the witness is employed, is probably the most frequent complaint of all against the expert witness.” Id. at 171. These concerns have certainly not dissipated over the years; if anything, they have increased.

Wigmore noted the “dis ⁵¹⁶ trust of the expert witness, as one whose testimony is shaped by his bias for the party calling him” 2 John H. Wigmore, Evidence in Trials at Common Law § 563, at 761 (Chadbourn rev.1979) (emphasis in original). In proposing Federal Rule of Evidence 706, which codified the authority of the court to appoint its own expert witness, the Advisory Committee commented that “[t]he practice of shopping for experts, the venality of some experts, and the reluctance of many experts to involve themselves in litigation, have been matters of deep concern.” Professor Michael Graham, of the University of Illinois Law School, has observed: “The professional expert witness advocating the position of one side or the other has become a fact of life in the litigation process. Practicing lawyers can quickly and easily locate an expert witness to advocate nearly anything they desire. In each part of the country, if you need an expert medical witness to state that plaintiff suffered a whiplash injury, call expert X; if you need a medical expert to dispute that fact, call expert Y. The use of the expert witness has become so prevalent that certain expert witnesses now derive a significant portion of their total income from litigated matters.” Michael H. Graham, Impeaching the Professional Expert Witness by a Showing of Financial Interest, 53 Ind.

L. Jour. 35 (1977). Experts of all kinds regularly advertise their services to lawyers in the legal periodicals and newspapers. See, for example, any recent issue of the American Bar Association Journal or Trial, the Journal of the Association of Trial Lawyers of America. 3 ⁵¹⁷ Expert opinion testimony can be powerful evidence. In some cases and on certain issues, it is essential to have in order to present a triable issue, but even if not legally required, it can have a compelling effect with a jury.

That is why, especially with expert witnesses, “[wjide latitude must be given a cross-examiner in exploring a witness’s bias or motivation in testifying,” why, 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.” Ware v. State, 348 Md. 19, 67 , 702 A.2d 699, 722 (1997), quoting in part from Bruce v. State, 318 Md. 706, 727 , 569 A.2d 1254, 1265 (1990), cert. denied, 508 U.S. 963 , 113 S.Ct. 2936 , 124 L.Ed.2d 686 (1993); see also Colvin-el v. State, 332 Md. 144, 169 , 630 A.2d 725, 737 (1993). 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 customarily appears for 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 ⁵¹⁸ favorable results for the employer of the moment.

As noted by Russell G. Donaldson, Annotation, Propriety of Cross-examining Expert Witness Regarding His Status as “Professional Witness,” 39 A.L.R.4th 742 , 746 (1985): “That an expert in a particular field may be in effect a ‘professional witness’ in lawsuits, rather than being more or less exclusively a practitioner whose employment in a lawsuit as a witness is merely incidental to his or her profession, is a matter which is likely to bear on the credibility of that expert, since a significant portion of the expert’s livelihood may thus depend on his or her desirability as a favorable and convincing witness, thus possibly leading to a temptation for the witness to color findings and testimony to suit the needs of the proponent party, rather than to evaluate and present the subject matter of the testimony with complete impartiality.” Other than trotting out one’s own experts, exposure of financial interest bias may sometimes be the most effective challenge that can be made to an expert’s testimony, especially that of a witness skilled in the art of testifying. As Professor Graham points out, substantive cross-examination is often very difficult. With their extensive litigation experience, “professional witnesses” are “proficient in the art of expert witness advocacy” and “at ease with the material and capable of making fine line distinctions between the current situation and those raised in the questions of examining counsel.” Graham, supra, 53 Ind. L. Jour, at 40-41.

The cross-examiner may well be concerned that the jury will view extensive or sharp questioning about the details as unnecessary quibbling. The amount of money that a witness is paid for testifying in the particular case is unquestionably disclosable on cross-examination. The dispute, on grounds of relevance, arises from questions seeking information on amounts earned from testifying generally, which necessarily includes amounts earned from testifying in other litigation. We have dealt with the issue only indirectly.

In Ager v. Baltimore Transit Co., 213 Md. 414, 427-28 , 132 A.2d 469 ⁵¹⁹ (1957), we held that there was no error in permitting defense counsel to ask the plaintiffs medical expert how many times he had examined persons referred by plaintiffs counsel. In Scott v. State, 310 Md. 277 , 529 A.2d 340 (1987), the defendant in a death penalty case challenged the qualification of a psychiatrist called by the State due to his frequent appearances as a State’s witness in capital cases, claiming that he was a “professional witness.” We rejected the challenge as being relevant to the witness’s qualification as an expert, but, citing Ager , we confirmed that “[ejvidence tending to show that an expert witness has frequently testified or otherwise been involved in litigation for one party directly relates to the weight a jury may give the testimony,” necessarily implying that such a connection could be explored on cross-examination. Scott, supra, at 294 , 529 A.2d at 348 . To date, that is as far as we have had occasion to go.

In Mezzanotte Const. Co. v. Gibons, 219 Md. 178, 181 , 148 A.2d 399, 401 (1959), we noted generally that “the compensation of an expert witness is a proper subject for cross-examination” and that the scope and extent of such examination is within the discretion of the trial judge. In Kruszewski v. Holz, 265 Md. 434 , 290 A.2d 534 (1972), a plaintiff complained that, although the court allowed defense counsel to question her medical expert concerning his recent participation in several malpractice cases, it declined to allow her to question the defendant’s expert about his having been a party to a malpractice suit in which defense counsel was his attorney. Though confirming that cross-examination to establish bias is permissible, we held that, as the bias of the witness had already been shown in other ways, the trial court did not abuse its discretion in not allowing the question.

Id. at 440 , 290 A.2d at 538 . Only a few courts have dealt directly with the issue before us, and there seems to be some split of authority. A slight majority of the courts that have considered the issue have allowed expert witnesses to be questioned about income earned from their forensic activities and have rejected the various arguments mounted by Ms. Wrobleski in this case. The clearest example is Trower v. Jones, 121 Ill.2d 211 , 117 ⁵²⁰ Ill.Dec. 136, 520 N.E.2d 297 (1988).

Trower also was a medical malpractice case in which defense counsel was allowed to cross-examine the plaintiffs medical expert as to (1) the frequency with which he testified for plaintiffs rather than defendants, and (2) the annual income derived from services related to testifying as an expert witness. In earlier cases, the Illinois Supreme Court had generally curtailed (or blessed the curtailing of) that kind of inquiry but because, in the court’s view, both the difficulty and the importance of thorough cross-examination of expert witnesses had markedly increased in the intervening years, it determined that a more liberal rule was required. Effective cross-examination of expert witnesses had become more difficult because of the increased latitude given to experts by the modem rules of evidence, allowing them, for example, to express an opinion without prior disclosure of the facts supporting the opinion and to base an opinion on inadmissible evidence if that evidence was reasonably relied upon by experts in the field. Picking up Professor Graham’s theme, the Trower court continued: “Adding to the importance of effective cross-examination is the proliferation of expert ‘locator’ services which, as a practical matter, can help the litigants of either side of most any case find an expert who will help advocate the desired position.

As this case helps illustrate, many experts today spend so much of their time testifying throughout the country that they might be deemed