May 28, 2016

Continued Difficulty Exposing "Professional Witnesses"

On April 14, 2016, the Honorable Robert A. Mazzoni of the Lackawanna County Court of Common Pleas granted a Motion for Reconsideration, reversing an earlier decision permitting Cooper interrogatories from being served on a plaintiff's treating physician in the case Mina v. Hua Mei, Inc., et al.

The earlier Order, entered on January 6, 2016, compelled the plaintiff's treating physician, Dr. Chun, to answer specific interrogatories crafted to determine whether he had financial bias in authoring a narrative report to support the plaintiff's injuries.  Referred to as "Cooper" interrogatories, the propriety of written interrogatories seeking information about an expert's compensation, the percentage of the amount of work an expert devoted to litigation, the number of examinations and/or investigations performed in a given year, the number of times an expert has testified, and the side (plaintiff or defendant) for whom the expert has testified was affirmed by the Pennsylvania Supreme Court in Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006).  The court explained that these types of interrogatories are permitted only where there is a question that the expert has "entered the professional witness category," in order to demonstrate potential favoritism toward one side.

In the Lackawanna County case, which involves a slip and fall, the defendant sought to serve Cooper interrogatories on the plaintiff's treating physician, Dr. Chun.  In addition to treating the plaintiff, Dr. Chun provided plaintiff's counsel with a narrative report, specifically indicating that he believed her injuries were caused by the fall at issue in the case.  Based on the specific "causation" language in his report, the court initially concluded that taking into consideration how the report was generated and specifically how the causality opinion was framed, Dr. Chun's opinion was generated with an "eye towards litigation," and the defendant was therefore entitled to serve limited Cooper interrogatories to Dr. Chun.

The plaintiff filed a Motion for Reconsideration of this Order, which was granted on April 14, 2016.  Judge Mazzoni specifically noted that the order compelling the answers to the Cooper interrogatories was erroneous because the defendant failed to present evidence to overcome the Cooper threshold, which requires a showing of potential favoritism on the part of the expert.  Although the defendant pointed to the website for the practice in which Dr. Chun works, which specifically advertises itself as a provider for "medical-legal" services, Judge Mazzoni held there was insufficient evidence to suggest that Dr. Chun himself had "entered the world of a professional witness," and, therefore, he would not be subjected to answering discovery aimed at establishing a financial bias.

What It Means to You

We are all familiar with so-called professional witnesses (i.e., those who appear time and time again and testify on broad ranges of subjects, regardless of their specialty).  While the original Order entered on January 6, 2016, suggested that the courts might be more lenient with early discovery to flush out these biases, Judge Mazzoni's recent ruling affirms that it remains necessary to perform extensive research as to an expert's "professional" background in order to be permitted to treat the expert as a "professional witness."