When an expert retained by the defense is deposed or testifies at trial, it is expected that Plaintiff’s counsel will attempt to impeach the expert’s credibility by demonstrating the expert’s defense-oriented “positional bias.” In other words, Plaintiff’s counsel will seek to secure information during discovery that establishes that the expert generally testifies only for the defense, and therefore, is merely a “hired gun” or “professional witness” retained to blindly advance the position of the defense despite evidence to the contrary.
A method commonly utilized by Plaintiffs’ attorneys to establish positional bias is to request information and documents relating to the financial background of the expert, in particular, the sums of money the expert earns performing expert consultations. This practice, however, is often used, not only as a means of establishing positional bias, but also as a means of putting before the jury the expert’s yearly income derived from expert consultations, which may be quite significant. Such information may operate to jade a jury toward the opinions of an expert, especially in low income areas, in addition to advancing the Plaintiff’s theory that the expert is merely parroting the defense’s theory of the case because he was paid a large sum of money to do so.
Competing against the Plaintiff’s recognized ability to establish positional bias is the expert’s right to privacy. The expert’s tax returns are often requested during discovery, which may contain personal identifiers, including social security numbers and home addresses. In light of the ever-escalating percentages of individuals who have suffered identity theft, disclosure of such information has become a real concern.
The competing interests came to a head in the recent Appellate Division decision of In the Matter of Central Orthopedic and Dr. Ronald Gerson, which was a collateral issue in the case of Fisher v. Logan, Doc. No. A1070-09 (App. Div. 2009). In Gerson, the defense retained Dr. Ronald Gerson, a prominent orthopedic physician, as an expert. Plaintiff’s counsel moved to obtain documents and information regarding Dr. Gerson’s income to establish positional bias. Dr. Gerson countered with a Motion for a Protective Order. The trial court ruled in the Plaintiff’s favor and ordered Dr. Gerson to release his financial records. Dr. Gerson appealed the decision to the New Jersey Appellate Division.
The Appellate Division reversed the trial court’s decision and used the case as an opportunity to limit the ability of a party to secure specific information regarding an expert’s income. The Appellate Division recognized the ability of a party to prove an expert’s positional bias. However, the Court specifically rejected the notion that a licensed professional surrendered all rights of privacy merely upon providing an expert opinion to a litigant for monetary consideration.
In reviewing the competing interests, the Appellate Division identified less intrusive methods of establishing positional bias short of full disclosure of an expert’s yearly income. For instance, the expert could be asked at deposition, or the party could seek to obtain documents demonstrating that the expert predominately or only performs work for the defense. If the expert were to testify that he only performs expert consultations for the defense, then there exists an inference of the expert’s positional bias.
Conversely, the court would allow more intrusive discovery into the expert’s sources of income if Plaintiff’s counsel can show that an expert was untruthful when he or she denied exclusively representing the defense. Even then, the actual amount of income will not be released, but rather, Plaintiff’s counsel will be given the percentages of yearly income the expert derived from rendering services for defense expert consultations.
The Appellate Division decision of In the Matter of Central Orthopedic and Dr. Ronald Gerson effectively forecloses a common method of attacking a defense expert’s credibility, not on the basis of his or her opinion, but on the basis of yearly income. Notwithstanding the ruling, positional bias is still an issue that a Plaintiff may establish.

Daniel B. McMeen, Esq.