Written by Edward Trivette, Esq.
The defense of personal injury damages claims often involves consultation with medical experts and reliance upon their opinions in determining the approach to valuation, resolution and trial. At trial, testimony of a medical expert is often critical to issues of causation, extent of injury, ongoing impairment, reasonableness of treatment and the extent of any future treatment. Plaintiff’s counsel often seeks to cross-examine the defense medical expert for bias and a recent Supreme Court of Virginia case will provide new ammunition for that effort.
The issue of cross-examination of medical experts regarding their relationship with insurers was first addressed by the Supreme Court in the case of Lombard v. Rohrbaugh, 262 Va. 484, 551 S.E.2d 349 (2001). There the trial court allowed Plaintiff’s counsel to cross-examine a defense medical expert who had been hired as an independent contractor by the insurance carrier regarding payments the expert had received in excess of $100,000 from the insurance carrier in each of the prior two years. On appeal, the Supreme Court found that even though the medical expert was hired as an independent contractor, there was evidence of a “substantial relationship” between the medical expert and the insurance carrier that outweighed “any prejudice to the defendant resulting from the jury’s knowledge that the defendant carries liability insurance.” Id. at 496-97.
The Supreme Court analyzed the interplay of two competing principles of evidentiary law, which have since been included in the Virginia Rules of Evidence. First, Rule 2:403 provides that “[relevant evidence may be excluded if . . . the probative value of the evidence is substantially outweighed by (i) the danger of unfair prejudice, or (ii) its likelihood of confusing or misleading the trier of fact.” Second, Rule 2:411 provides that “[e]vidence that a person was or was not insured is not admissible on [questions of liability or damages] . . . [b]ut exclusion of evidence of insurance is not required when offered for another purpose, such as . . . bias or prejudice of a witness.”
In the Lombard case Plaintiff’s counsel sought to show bias on the part of the medical expert based on payments to him by the insurance carrier in excess of $100,000 in the prior two years. Such evidence necessarily implicates the prohibition on introduction of evidence of insurance coverage in Rule 2:411. Likewise, evidence of payments by the insurance carrier to the medical expert would risk unfair prejudice to the defendant and must have sufficient probative value to outweigh that risk as outlined in Rule 2:403. Therefore, in order to overcome the prohibition on introduction of insurance information and the danger of unfair prejudice to the defendant, the Supreme Court determined that there must be a “substantial relationship” between the insurance carrier and the medical expert in order to permit cross-examination for bias on this issue.
In the recent case of Graves v. Shoemaker, 851 S.E.2d 65; 2020 Va. LEXIS 144, the Supreme Court revisited the issue in a case where the trial court did not permit cross-examination of a defense medical expert for bias. The facts differ somewhat from Lombard. The primary differences relate to how direct the relationship was between the insurance carrier and the medical expert. In Graves, the medical expert was hired by defense counsel rather than by the insurance carrier, as in Lombard. In Graves, at his deposition, the medical expert testified that he did not know that the defendant was insured by the insurance carrier. He also testified that he had been hired “30-35 times over the past 10 to 12 years by defense counsel and on only one of those occasions did he testify on behalf of a plaintiff.” Id. at 66. The medical expert also testified that he had received $793,198 from the insurance carrier for work he provided for their insured from 2012 to 2018. Id.
The Graves trial court did not permit Plaintiff’s counsel to cross-examine the medical expert at trial on the issue of his prior work for the insurance carrier because of the lack of a “direct relationship” between the medical expert and the insurance carrier. On appeal the Supreme Court rejected this reasoning and reiterated the holding in Lombard requiring a “substantial relationship” as the applicable standard as opposed to a “direct relationship”.
The Supreme Court explicitly rejected as a “distinction without a difference” the argument that because the medical expert was hired by counsel, rather than by the insurance carrier, that there was no substantial relationship. The Supreme Court further acknowledged that on an annual basis, the $793,198 paid to the medical expert of the prior seven years was similar to the $100,000 amount paid to the expert in Lombard, which the Supreme Court previously recognized as a substantial amount. The Supreme Court held that the foregoing was relevant to the medical expert’s credibility which was a proper question for consideration by the jury.
Best practices already weigh against overreliance upon particular experts, but the Graves case highlights the issue. As anyone on the defense side of personal injury claims can attest, medical legal work is generally low on the list of priorities for medical doctors who would rather be treating patients and collecting higher fees than can be earned consulting with attorneys. Of course, there are also consulting medical experts that frequently show up on the plaintiff’s side and who would likely be susceptible to similar forms of cross-examination. The Graves decision can be expected to make the already difficult task of securing consulting medical testimony in defense of personal injury claims more complicated.