Written by Stephanie G. Cook, Esq.
Edited by Bill Pfund, Esq.
A recent, federal case significantly affects the admissibility in Virginia of medical expert information in personal injury cases in at least two ways. Rice v. Williams, 2017 U.S. Dist. Lexis 117504. In Rice, Judge Urbanski, sitting in the United States District Court for the Western District of Virginia, allowed plaintiff to introduce evidence showing the amount of fees that defendant’s medical expert had received from the defendant’s carrier, State Farm. The plaintiff was also allowed to introduce fees the defendant’s expert had received from other insurance carriers. Judge Urbanski found these payments were relevant and admissible because they tended to show show bias or prejudice of the expert witness. The court in Rice also examined the testimony of plaintiff’s treating, orthopedic surgeon and excluded the surgeon from testifying at trial about future surgery he recommended.
Rice v. Williams arose out of an automobile accident. The defendant, Williams, filed two pre-trial motions in limine. The first motion was to exclude the cost of future lumbar or cervical fusion surgeries on the basis that those surgeries were not medically necessary. The court sustained defendant’s motion, finding that the statements from the plaintiff’s treating, orthopedic surgeon during depositions were mere recommendations for the fusions. Consequently, the surgeries were not “reasonably probable.” Rice, 2017 U.S. Dist. LEXIS 117504, 1-2.
The testimony of the orthopedic surgeon is too detailed to go into in this article. However, it is worth reviewing in any case where a physician’s testimony as to future surgery or treatment is somewhat equivocal. During deposition questioning, the physician in Rice testified that he would not discuss surgery with a patient if he did not believe it was needed. He conceded, however, that the recommended surgery was only an “option.” Moreover, the physician testified that the last time he spoke with plaintiff, she did not wish to undergo the surgery. In sum, the court found that the physician’s testimony did not meet the standard required by plaintiff in order to prove such treatment was medically necessary. See McMunn v. Tatum, 237 Va. 558, 568 (1989). In order to prove that these future surgeries were medically necessary, the physician had to state that they were anticipated to occur “to a reasonable degree of medical probability.” See Va. Stat. Ann. 8.01-399(B). In this case, the court found that the physician’s testimony did not meet that standard (finding, “[b]ecause Rice’s need for future surgery remains in the realm of possibility, rather than reasonable probability, her doctor’s estimate of future surgical expenses is not admissible.”). Rice, 2017 U.S. Dist. LEXIS 117504, at 7.
In the second motion in limine, the defendant moved to exclude payments made by his liability insurer to his medical expert witness. Generally, the existence of insurance is not admissible in a jury trial involving negligence, causation and damages because it tends to unduly influence a jury towards awarding a verdict in favor of a plaintiff. See Rule 411 of the Federal Rules of Evidence; see also Rule 2:411 of the Rules of the Supreme Court of Virginia. However, the plaintiff and the court in Rice relied heavily on Lombard v. Rohrbaugh, 262 Va. 484, 497 (2001), in which the Supreme Court of Virginia held that “testimony concerning liability insurance may be elicited for the purpose of showing bias or prejudice of a witness if there is a substantial connection between the witness and the liability carrier.” Lombard v. Rohrbaugh, 262 Va. 484, 497 (2001). The court in Rice found that a substantial connection existed given the large amount of fees paid by the defendant’s carrier as well as by other liability insurance carriers. The court, therefore, permitted evidence that defendant’s medical expert witness had been paid $525,045.00 by State Farm over the past six years.
The test for determining whether there is a substantial connection between a witness and a liability carrier is “whether the relationship between a party and a witness, particularly an expert witness is such to make proof of their financial dealings sufficiently probative to outweigh prejudice that arises from knowledge that the party carries liability insurance.” Lombard, 262 Va. at 497. The opinions in Lombard and in Rice are surprisingly bare in their analysis of what constitutes a substantial connection. For a more detailed analysis of what constitutes a substantial connection, see Ray v. Draeger, 353 P.3d 806 (Alas. 2015), which cites to Lombard and analyzes findings of a “substantial connection” throughout the United States courts.
In Rice, as in Lombard, the defendant argued that the prejudicial effect of injecting insurance into the trial would substantially outweigh the probative value of showing bias. The defendants further argued that there should be other, less prejudicial ways to show bias of the defendants’ expert, such as the number of cases the expert had performed work for defendants versus plaintiffs and the amount of fees earned from such cases – without having to hear testimony that an insurance company paid these fees. Despite these arguments, there appears to be a rising trend in our courts permitting the injection of insurance company payments to show bias of a defendant’s expert. In these cases, a cautionary instruction should always be requested and granted.
It is important to note that these holdings apply to expert witnesses not directly employed by the liability carrier. They include doctors in private practice who often perform medical record reviews for the defense. In cases where a liability carrier retains a physician to perform a medical records review and then designates that physician as an expert witness, the carrier should also anticipate that the physician will receive a subpoena for records showing all previous case reviews, testimony and income derived from such work. A motion to quash such a subpoena can be filed, but it is likely the requesting party will be entitled to at least some of the requested information. Such subpoenas should be carefully reviewed, and limitations on what is being asked for should always be demanded.