Indeed, the most frequent attack made upon physicians who perform independent medical examinations for defendants is an attack on the doctor's financial profile, i.e., how much money does the doctor earn doing IMEs?
For years, plaintiffs' attorneys struggled with evasive defense doctors at trial depositions who, when asked about the compensation they earned doing IMEs, frequently answered, "I don't have that information in front of me; I am not sure…" Plaintiffs' counsel were salivating just thinking of being able to argue to a jury that the defendant's IME doctor was a "professional witness." However, such arguments often fell flat in light of the understandable reluctance of most IME doctors to answer these uncomfortable financial questions.
That stumbling block was overcome for plaintiffs with the Supreme Court's decision in Cooper v. Schoffstall, 588 Pa. 505, 905 A.2d 482 (2006). In Cooper, the plaintiff sought to discredit an orthopedic surgeon, Dr. Perry A. Eagle, whom the plaintiff accused of being a "professional witness," whose opinions were, essentially, for sale.
In Cooper, the Supreme Court sought to strike a balance between requiring IME doctors to respond to overly intrusive subpoenas and discovery requests concerning their financial backgrounds, the number of IMEs performed, income earned from IMEs, income earned by their practices from IMEs, etc., and IME doctors who were being deliberately evasive and coy when they testified. The Supreme Court ruled in Cooper that if a party can show that an expert medical witness rises to the level of being a "professional witness," then certain limited written discovery must be answered by that witness. Specifically, the court ruled that upon this threshold showing, an expert witness must respond to a Deposition by Written Interrogatory, under Pa. R.C.P. 4004, and provide very specific financial information, going back three (3) years, concerning their practices, their financial compensation from IMEs, the number of times they testified on behalf of defendants, etc.
For the defense, "Cooper Interrogatories" have had a deterrent effect. Doctors don't want to answer them and this has resulted in doctors either refusing to do IMEs if they anticipate being served with Cooper Interrogatories or the doctors being disqualified from testifying when they refuse to answer Cooper Interrogatories after preparing an IME report. This "chilling effect" that the Cooper case has had is especially troublesome in geographical areas, including northeast Pennsylvania, where doctors are scarce, in general, and IME doctors have now become virtually few and far between.
The Plaintiffs Bar in Pennsylvania, which is quite organized in its collective efforts, has been adept at developing "files" concerning IME doctors who regularly perform IMEs. Plaintiffs' attorneys are then able to easily demonstrate to the court that these particular doctors are "professional witnesses," and should be required to answer Cooper Interrogatories.
Cooper Interrogatories seem like a one-way street — a means to torture and deter defense IMEs. However, the Supreme Court's Decision in Cooper is not written to only apply to defense IMEs. Rather, if the defense can show that a plaintiff's expert witness is a "professional witness," then that physician, too, can be ordered to respond to Cooper Interrogatories.
This undertaking is more challenging for defense attorneys, however, since the Defense Bar is not as organized and willing to share information as the Plaintiffs' Bar in Pennsylvania. Also, oftentimes, the plaintiffs' expert witness masquerades as a "treating doctor," impenetrable to any suggestion of bias. However, those in the practice long enough realize that on the plaintiffs' side, these doctors are most certainly "professional witnesses," where plaintiffs' attorneys refer their clients directly to these doctors knowing that favorable opinions and testimony will be obtained.
Recently, in Lackawanna County, in the case of Mina v. Hua Mei, Inc., Lackawanna County, 2012-Civ-7781 (January 6, 2016), defense counsel convinced the Lackawanna County Special Trial Master, as well as Senior Judge Robert A. Mazzoni, that the plaintiff's expert witness was a "professional witness" who should be required to answer Cooper Interrogatories. In obtaining this initial ruling, defense counsel argued that the plaintiff's treating physician prepared a narrative report in response to a request from plaintiff's counsel. In this narrative report, the plaintiff's expert answered very specific questions from plaintiff's counsel and provided a detailed, legal-oriented analysis of causation.
Looking at the plaintiff's expert report, the court found that the report was prepared with "an eye towards litigation." This was enough to convince the court that the plaintiff's expert treating doctor was a "professional witness."
When this decision was first issued in January 2016, the Defense Bar in northeast Pennsylvania grew excited with the possibility of being able to prove that the plaintiffs' expert witnesses that are seen testifying routinely — the same four or five doctors — would finally be subject to the same onerous inquiries that defense IME doctors have to undergo. Likewise, plaintiffs' attorneys were not pleased with this ruling, for obvious reasons.
All feelings were short lived, however, when the court, upon the filing by plaintiff for a Motion for Reconsideration, reversed itself, finding that there had been no "threshold showing to establish cause for supplemental discovery related to potential favoritism…" (April 14, 2016). The court ultimately ruled that despite the tenor of the plaintiff's expert witness report, the relevant proof required for the service of Cooper Interrogatories was a showing that the witness was a "professional witness." Because defense counsel did not have the necessary data to make such a showing in the Mina case, the plaintiff's expert witness was not required to answer Cooper Interrogatories.
What It Means to You
As defense attorneys, we all know that there are "professional witnesses" on the plaintiffs' end and that they, too, should be required to answer Cooper Interrogatories. Unless and until, though, the Defense Bar can organize efforts to gather the appropriate data on various plaintiff's expert witnesses whom we see with frequency, any effort to serve Cooper Interrogatories upon plaintiffs' expert witnesses will swiftly fail. The Defense Bar needs to establish some type of "bank" to track the frequency with which plaintiff "expert witnesses" are testifying, writing reports, and earning income.
Until this information can be gathered, the defense will struggle with Cooper Interrogatories and their deterrent effect upon the defense's ability to obtain effective independent medical examinations.